The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-23 00:00:00

VICE-CHANCELLOR'S COURT, Tutsroat, Nov. 72.

MU. v. REARDow AND OTHERS.
Arguments in this case, which had occupied the Court the greater
part of two former days, were this day resumed, and the decision
of the Court given.
It supeared from the:pleadings, that James Fanning, and his
wife Frances, were British subjects, who had emigrated to France
previous to the revolution. At the time of the intermarriage of the
ratites (1772) Frances was entitled to the domains of La Roche
Talbot, which were settled upon herself, with remainder over to the
heirs of her body. They had one son and one daughter, issue of
the marriage. After a lapse of atonic years, the mother died intes-
tate, and one moiety of her estate devolved upon her son and
daughter, James and Hose Fanning. In 1792, the property was
seized and confiscated by the Frencn Revolutionary Government,
and Mr. Fanning emigrated to this country. James Fanning, the
son, died in 1794, without will ; and his stater, Mary Rose Fan.
ning, died in the year 1801, also intestate. In 1808, James Fan.
ning, the father, died, and by a will, bearing date in the year 1804,
bequeathed the estates and property in question tol James Ed Rani
Devereox, for his own use—a residue being reserved for charitable
purposes. From the period of the sequestration of the domains.
down to the year 1814, they remained out of the possession and
control of the Fannings, or their legal representatives. In that
year a convention was entered into between France and England,
for the purpose of liquidating the claims of British subjects for
lows sustained by the confiscations of the Revolutionary Govern.
ment of that country. Mr. Devereux, in the character of legatee
of Fanning, applied to the Commissioners appointed to investigate
the nature of the claims preferred under this convention for com-
pensation. His title to the confiscated estates was not considered
good by the Commissioners, on the ground that Fanning, through
whom he claimed, was not a British subject at the time of his ,
emigration., or the confiscation of his property. Mr. Devereux ap-
pealed from this decision to the King in Council. The Privy
Council thought the Commissioners wrong, and rescinded their
award, referring it to them again to investigate and ascertain the
amount of Mr. Devereux's claim. The Commissioners, in mot-
plianee with this order, declared the defendant (Devereux) entitled
to compensation ; and he was put in possession of that portion of
the domains of La Roche Talbot, which remained unsold by the
French Government. A pecuniary compensation for the other parts
of the property was assigned Mr. Devereux by the Commistioners• '
These were the circumstances of the else out of which the pre-
sent proceedings arose. A bill was filed by the plaintiff (Ann Hill)
who claimed a right to the property at imam as neat of kin to
Mary Hope Fanning, in preference to the legatee. On her part it
was urged, that on the sth November itnrt, she was nearest living
relative (cousin) and heiress at law to Mary Fanning ; and that
by the French law, the sequestrated property was to be restored to
the proprietors, or failing them, to their next heirs, and not to the
devisee or legatee. On this ground the plaintiff originated the pre-
sent suit, and claimed a moiety of the property.
The defendant's (Devereux) answer set forth that, in the year
1779. or 17811, Mrs. Frances Fanning made' will in favour other
husband, who succeeded to the Inheritance in consequence of her
dendt' and the seirsequent decease of their children. The will of
1801, In favour of Devereux, was then set up, as constituting his
claim to the estate ; and the award of his Majesty in Council was
further pleaded.
The defendant. Reanlon, pat in an answer to the effect that Mr.
Devereux, being Indebted to him in a sum of money, aesigned his
(Devercux'N) claim on the estate to hint, by executing a power of
attorney in his flavour.
The Solicitor-Genet-el and Mr. Horne, with whom was 51r.
Wakefield, appeared for the plaintiff: For the defendants :—Mr
Hart and Mr. Simpkinton appeared for Devereux, and Mr. Fon•
blanque, with whom was Mr. Roupell, for Reanion. Mr. Garrett
appeared for the Commissioners ; and Mr. %%'ray for the Attorney-
General, who claimed one moiety of the estates in behalf of his
Majesty, on the ground that James Fanning, the elder, died with-
out heirs.,
The VICt-eIIASCELLoR—There appears to be a question of
French law mixed up with this case.
The Solteseyeadieirrnat. remarked that point was in his
ciliate' favour, as hod been already decided by a decree of the
French Court of Coloration, and the opit.ion of an eminent French
Advocate.
The Vrce.CitawCin.r.eib—l cannot tz.ise the opinion of any

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vp.-7.

French Advocate. however eminent. and iherw is no iretance
this Court deciding a question of foreign law. if the vote turns on
that point, it must be referred to the elanweri to inquire respecting it. • :
ilr. HART said. he heti a preliminere ohjecthan to make to the
jurisdiction of the Court in a matter aiready decided by the Veal
in Council. This objection had already heal made before the Limd
Chancellor, and his Lordship was disposed to admit its weight sod
importance. The object of the convention entered ,std Wien! .
France and this country, in 11114, was tt recompenee. and retnetatie
in their privileges and possessions Dank subjects. who hid bean
dispossessed of their property under the arbitrary &wee Of f 144 •
French Revolutionary Government. Commissioners wereappolnt-
ed to investigate the elaime, and the defendant Mr. Devetene ,
went before them for the purpose of making out hlin claim to the
estate violently seized. He claimed es deriving througp the elder
Fanning by bequest, but the Commiesioiners thought hum not en- .
titled. An appeal was then made to the Kinnan Council, why rot;
versed the decree of the i'emninesionets, and the estate was &Medial
to the defendant. Under the law of France preilous to 1003, when
the children died, the inheritance took an asrecellog (Wee. ion, end
became vested in the surviving parent. Mr. Fanning was in /Ma
situation, for his last child, Mary Borne Fanning, died in 1401.
Subsequent to this period, the Imperial Goveremepathuniglit Kr 4o ,
radically alter the law of France in this respect. By the new ye.
gulation, the principal put of the property was still given to the ..
ascending line, but a portion was reserved for the collateral vela. :
tires. However, this had nothing testy with the estate,in qncstme.
The award of tine Privy Council, and afterwards of the Commis-
sioners, in favour of alr. Devotee:, was not brought about by
any misrepresentation of facts on his part, or by a nalstatement of
title. Under those circumstances, it could not be established that
a Court of Equity possessed soy authority to interfere with the de-
eision of a tribunal appointed for the specific purpom of investigate
ir.g and determining op the claims submitted to it.. A period of
three months had been allowed at the time of the esteblishment.of .
the commission, for claimants to come forward and establish their ..
titles to compensation. In this interval no claimant to thp property ,
in question, with the exception of the defendant, made his appear.
ante. But the plaintiff 'drained her title now that the thile for .
establishing it before the competent tribunal was elapsed. NVoukt .
the Court for a tnornent entertain the supposition that the hormone.. ,
stoners and his Majesty in Council were wrong in their award ? Or
was this a Court by which that decision, right or wrong, could be
reviewed ? He was free to admit, that if the defendant had oh.
tanned a preference by fraud or misrepresentation, it then would be
competent to a Court hi Equity to set the metier right ; bus no ,
such allegation was made by the plaintiff, and the Court has no
right to interfere. The plaintiff merely claimed as a collateral .
branch of the family of die Fannlngraggieet the legal devieeerawsel--
not on the ground of miatatement or undue representations one it
part. This Court possessed no jurisdiction in the case, and could .
not disturb the award obtained in a legal and equitable manner. o ,
part of the estate sequestered hail been sold--another portion w ,
not sold, but became mixed tip with the national doiitalris—fbr the. .
former the Comedasiteners hod awarded a ,onmentietion ; the hulk .
(to the amount of 166.hectolitres of land). v. an restored to the defend. ;
ant, under an order of the French Governmentte.juder ell those
circumstances. be t meted the Court would see tato decline irk.,
emitting itajurisdietiem in the present case. . . ..
Mr. St MPKINSON followed on the mime side;
Mr. I, 0116LaX‘in; (for the defendant Bearden) submitted thiii2•
the question now for consideration was. Whether the Court palmed- •
any right to review the award of the Commissioners, be thal.wwerd , •
right or wrong. . Under the convention two French and we Ehglisb_•
Commissioners had been appointed, who held their Idtthlgt et Paint .•
for the consideration of the claims gyarle forcompensitteh irnd.reliti: ‘.
Sutton of confiscated prolterty,..,,A. yards kites found coneenirat
to refer the.claims of British supcts to Commiksioners Cuing*,
London. In cases of "Webs, ."t or extile the_ cernmizsioncis Wire ;
permitted to pay the money indispute Veto eflianeety,' in order to
obtain the assnstaece of that tribunal in.,the,adjudianion. Bettie-
war only in cafes of peculiar intricacy that the Asp of Parliament
nude this provisicc, which was oastsintlonal, dirt nor citipidrott; i
in the Con.miesiemere They werpint directed to pay money inlet '
Court, but merely atithorieed to 4p so it they should so deer fir. .
This was intended as a provisions 'lacism of contiadictory vette',
and conflicting interests, oo the merits of which the Commissioners
might not feel competent to determiee. Bpi it did not apply to the
present cnse. Here were no oppoethg candidates for the promote-
in question. Mr. Ottvereux preferrents claim in the character of i
executor to.Faiming, and there could not be said to exist any ap.. .
pearance of fraud itt his manner tsf :urging that claim 1 nor Was
there the dightefa pretence OF Ife!}fo.tia took es a trustee, sad
not in his own behalf.. Yet the 044141 andeafroared to turn round
on Ale. Llevereuz and say, ••• True, you have acted correctly t sou
have established a claim -which ir not sTfen made one eacertairoxl.
the property would have been lost to esery body, but in doing so
you only acted as out trustee,. and in thit charade( we will aurapt.
to clothe you, notwithstanding it is winder;, common sense you
took the property as eseeutor under the will yotte own behalf.-
No claim had been brought lowaid stgainas defendant till the.,
year 1818. and long *Bet the „.04 4,0,,, ~,fie Mr. pereeettit.
petitioned the Commissionell: foe et settee, he was sla actual
possession of a part of the estates witch had rot kept old. The
French Government had restored then poeticai and 'although at
the commencement of. the o.days iettt defendant was dispossessed
under the imperial decree ehrgiapieeri tottaidekedre4 to emigrant,
yet subsequently be was 0111111/100111,441416, MAW Xl'
thority. -.....' . 9, • ,l .
The VicE-CartarcEct‘tid-711V;11ptlittique,..- ;Op.:latter ob-
liervatiens don's street the poilnetittirflet; .91.10 aeha ...they are
all upon the merits into which the, duet csmiht Jitiftft)rai •Tr •
question is, can I reviver the decision Cif ihe. Privy Council and it e
Cammjajarleta 0 It Is asserted be yot) who.rraitif.tbrehißrnthOlothe
decision of the Privy Council Ti brat. .Chi the Odrecaide, thew-.
deny its finality ; that is, they dfcillow lkten netlaili cnltibelsointel,
admit it to be final as to somehotti, *Oil if genie etilatippiittal of rho
property between this mummy and thp : roach fibeetriment t but
they do not admit it to be dnal,-as..il, soostrAtt a,ptirtictilir lad:-
virtual. Mr. Demount I aot ent. m pregame M «sealer whether the
Privy Council was right Or thfre-Lbdt stitcher right or wrong.
this Court eon review ha thinWp,.04.1(014t.400,144nnt-4,1an4 ad:
the rest is packthread ! . ., ~...... ' ' ''''"
Mr. FONBLANQUE INAgallid+.loLiiiitiiiiir WtgoVilerAilt same
line of argument... . - . .- • ilc, •
The Vioo-CatedetaLoneestant .1 rona4, It interrupt.
Shile * ,fin •
you, alr.Fonblanque.atut you are argatiog.keratir e q#iitifleh, led
I must remind you that the toed dm Judges belongs to the snub.
lie, and cannot be wasted. .
Mr. Fox nit axoue—The time of thi Jodges is eertainly ttiw
property of the puLlic, and that it 'Mould not he lasted is an im.
.portant object ; but there Is a still hietace.olgtice and that is, that
juitice should be aeministered tightly 1 I heyileastippyiee temia
more important than the time of either Judges or Advocates.
The VICE-CHANCELLOR—Vita. 11111 001111111 must not read
" (lit Blaa" when the question is one reldtiCe to trench law !
ale. FONBLASTQUE —I triton these obsefierforn'vld 'not apple to
me. I am not conscious that they de t anti 'I spould hope they
would not apply to any gentleman engaged In Oils Wise.. The
Learned Gentleman then
.too that from the
language of the 10th section of, the Aet-eTarliament regulating
the powers and duties of the Coninilsalusitikiii&the enbkellatelegt •
peals to the Privy Council, thee ennid be no doubt reasonably en.
tertained bet that the decisten of his blearily-ie. 14pnoil, gee traad
such cases to be considered as boat, . The word, of the Act were.
'• that it may be lawful for his .I.lltOestyln 'Connell tithe:Sr( arid.
finally determine such appeals." .1' be decree ,of eitialsortie an
Caviled went to affirm the property as ,10/011.11fIg to *Nit. 'Des c.
roux ; the bill of the plaintiff- denied 'her it chit lan fewese not
now for the Court to determide whirl wain sight, bet tawny whetter
or not it would consider itself authorised to review, and, perhaps
reverse such decision of the King in 'lL'outecif. ' .
Mr. It °urea', followed en, the metal ',Mit, and grieved toddle:
the jurisdiction of the Court, or its outhvrity to: examine theearma
already made. This wash' itself an impottsnecase,'endiff made it
subject of appeal, all the eases decided by she Commikeinnerajeg
liqunlating the claims of British subjectsegasnat }'rants might be
brought into Court and reviewed in like Mantic,
Mr. GARRETT appeared for the Commisslocers of Charitable
Beq nests in Ireland, who were entitled to it reeidos under the sill
of Ar. Fanning, for which they had filed a bill In tire other Court
ha 1822. Hie application, however, woe merely formed, and thew
suit ao amicable one, raised pending the decision .on the prestni
claims.
The Soatet Toe-GENERAL (for the plaintiff) exprewrct his.an.
tentien to confine himself as much as possible to the limits marked
out in this discussion, namely, tine question as to whether the Court
Possessed or could exercise a jurisdiction on the subject or not. He
did not mean to deny ale. lievereux hod obtained a legal title, but
he could now only maintain it in the capaeity of trustee to tbe.platn.
tiff. One moiety was claimed on behalf of the Crpwn,
.apcl, the
wharves the leaver in dispute between the present Parties. it
could net be fairly said that the Court of Choocery its ibti cam
could exercise no jeristliction, for the money had been paid kW/
Court, and in that manner it had already exercised a jericlictipit.
At one time it alleged that the Commissioners were tine fitrnnt ‘oitt".
Fetear, and at another that tine decision Of the Privy Couneel weir
final. Ile humbly submitted that the competency and tieuitty ut
neither of these tribunal* had been satisfactotily established. A
man might have a legal title against all mankind, bat out
an equitable claim against a person so situated as the prose!:
plaintiff: This was the case now before the C'ourt, and in thin
way could a Court of Equity step and
had been made by the Commissioners. It would begintine
strange indeed if the treaties between France and land
which had been alluded to in the courts of these prate. togs
had nullified all equitable rights laid vested principle+ s,
lung and universally established as these. Only one claimant Mn
appeared before the Commissioners. acid yet it was maintained that
their decision was good, against the rights if all other sod future
claimants. They, m fact, had no right (according to the intertirt-
' tation of the powers confided to them by the Act of Porhstnens) st.•
decide between contending parties, but between this cotraty pad
France. They were rot to adjudicate to wbern.--hot what.. AM
with regard to the appeals permitted to the Privy (:ouncli, they
could only 'elate to international subjects, and be ertglnaseil-Ibr die
purpose of determining whether or not the Commiesionmeof Li-
quidation had rielitly interpreted the treaties, and properly ease.
cieed the duties confided to them. The pleintiff bad never. beera
before the Commissioners, atirl consequently possessed no oppot.
tunity of appealing from its cleCigiOn, had that been adverWe-te hog
claims. The right of appeal was only provided in eases virtu the
Commissioners had net put largelp coostructigo sn the trtetics, :
awarded the proper amount to the c'Aiotants. It was never int
that there appeal' should be for the puitws,e ant deciding he
A and 11, for the Commissioners thenteelVes were reqaireenlowai-
pear as parties to the appeal. It waster the Court of tiArtegarptic.
decide between the contemling penises, AS it had bees for rise prig,.
Council to decide between the claimants and the 3C.U13 try.
Mr. HORNE tallOWet! on the same side, and argued thgithis %air
was not in tact an appeal from theCtreennivtlnni and Praertio..MAiL;
with the decision of which the plaintiff was perfectly satisligtko

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to 100

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t{-ny.
JUnl.
appe..l on
COUO-
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paid
and
no.

...7 him,
. prissesoed no jurisdiction
whotsoevef. He would not enter more fully at present into a re-
view of the topics urged by beamed Oentlemen, but would reserve
his remarks for an occasion of greater leisure, ands more favourable
opportunity. The grounds for his opinion ware, that this was no
property that had ever been titled in the plaintiff, but it was a
species of property created by a convention and Act of Parliament.
It wee neither more nor less than s mete creature of the convention
and Act of Parliament so often alluded to. Throughout the orgu-
newts of Counsel for the bill, it assumed that the plitintill had
lights of property in the estate in question ; but if, as he was of
optninn, that was a property entirely aested in the manner de.
aerated, the title to it could only be maintained under the con-
vention rut Act of Parliament. The plaintiff's title was not
sopportcd in this way. IVith respect to the argument of plaintiff's
Counsel, that the Commissioners of Liquidation had no authority
to &Wei the right of the claimants, but only the amount or their
telpeetive claims, the 15th iriction of the Act fully tetanal that
sesettion. The terms of that section were—" And be it further
enacted, that in case any dispute shall arise between the several
parties claiming etor.pensation, and that the Commissioners shag
tat be able to deride between them." Viltat then ? They (the
Commissioners of Liquidation ) are authorised to take the opinion nod .
advice of a Court of Equity. It was argued that the Commissioners
hid no authority to decide between A and B, but here was a plait'
proof that-they had. in the event of their not being able, from the
nature of the claim, or the lesal difficulty of the case, to decide be-
tween contending parties with satisfaction to thentse;ees, then, and
then enly they were at liberty to lake the opinion of a Court of Lquity
on the subject. Tile principal argument on which the plainting.
lied wit in this manner conclusively refuted, simply by reading des
libel of the Act of Parliament. His Honour concluded by repast-
rig, that he was satistitd in this case the Court neither possessed
nor could exerase an authority to review the award of the Privy
Council. For the !purpose of answering the argument, urged to
the contrary, he would take an opportunity to deliver his opinion
more fully on the subject at a future day.
COURT OF KING'S BENCH, WE117111:(1TER,
TIJZSDAY, Nov. tai.

•
he as it went. The general right of the fermentative of Mr.
Finn,* lo enjoy the property in queskee kill been recognived,
ace tae i only now *ought on the point of the plaintiff, that the right
shetAld he directed to the proper channel.
`Alt VlCilt-(iiaxcti.oole—You claim under the convection,
)1,. Mnrne.
Mr. Mount your Iforinur.
'lk Vecs,,Ces nos I-Loa—Suppose there bad been ro conven-
tion etilet of Partiantent, could you have established any right of
pitsirty uginest the French tiosertiatent. That ie the axis of your
min argument. If yotr client has no right other than that con.
veyed by the convention, site must clatm tinder it.
The sot. le I TOT/ G Clf t OA L-1f we could not enforce oar
ireeept under the convenTion, neither could the defendant.
Mr. IVA' eiran followed on the same sida.
Mr. Wittig eppearc4 for the Attorneytliennral, on the part of
the Crown. which claimed • moiety of the estate, Mr. Fanning
hmieg died without issue surviving. The Learned lientinuan won
peokeetiog to argue the general question, when,
The Vtce-CmewCELLOa observed— 1 t Is unnecessary for you,
Att. Wray, to gu Into the melds. You claim against, not through,
Deveteue.
lit. W RAT—Ur.lcas the Court will hear me state my own case
try own way, I can't proceed.
The Vict-CuAeczt.con—Then I can't hear you, Mr. Wray.
The Court is not on the merits, but on the question eljuris.
diction. •
Mr. AT—I shall consider it a good ground for an appe_l on
the poet of the Crown, that I have not been heard.
Mr. H Awe maid s few words in reply to the arguments of Conn.
set for risfntiff.
Tile VIC t-CHA'SC EL LO A, in &live:rig his judgment, said, he
Ind attended to this erne serapulous.7 from its commencement on
account of the novelty and importance of its nature. lie had paid
all the attention he was capable of giving to the very full and
inmioiss arguments of Counsel on With sides, bet had seen no-
thing to remove from his mind the conviction entertained by him,
attig this was a case in which the Coon possessed no jurisdiction