The British Press; or, Morning Literary Advertiser.
London, England, 1826-05-29 00:00:00

COURT OF COMMON PLEAS, SATURDAY, MAY 27.

[Sittings in Banco.)
TITHES—mAcnottoAL V. YOVWG.
This cause was tried at the sittings in last Term. The action
was brought to recover certain tithes of the defendant, an inhabit-
ant of St. Helen's, Ilishopsgate-street. A verdict was given for
the plaintilf, on a count in the declaration that there 1183 an agree-
ment for a composition ; but for the defendant on all the other
counts by which finding the question as to the right of levying
tithes to the amount of 2/.'9.. in the pound in the City of London
was negatived • for, by their verdict, the Jury found that there was
no decree enrolled under the statute of 37th Henry VIII., under
which the tithes wise clatidied.
Mr. Sergeant ONsc ow this day moved the Court for a rule to
allow cau.e why a new trial should not be granted, on the ground
that the Jury had tilivaken the direction of thz Learned Judge, as
to the enrolment of the decree. The Learned Sergeant contended
that there WAR not the least ground for supposing that such a de-
cree had not been tnrolled ; and 'riled cases in the reigns of Eliza-
beth, William and Mary, James, and Charles the Second. in
support of his argument, where various questions had been raised
as to the payment of tithes. upon various grounds, but in no one of
thin' had the Courts ever expressed the least doubt as to the vali-
dity of the decree, but, on the contrary, had always acted upon it
as having been enrolled.

The Court said they would grant a rule Nhti, but intimated that
there might be a trestion raised, whethe► or not in those days there
could be any actions for tithes ; for by the decree the parties were
to go before the Lord Mayor, who had power to imprison for non-
payment of tithes for a limited time; anti if the Lord Mayor did
not so dn, the parties mi;lit be taken before the Lord Chancellor,
who had the 1,I:e rowers.

Rule Nisi granted. The terms to abide the decision of the
Court.

The Loos) ell Mr rST ICE sat at Nisi Prius at one o'clock
The causes tried were wholly uninteresting.

ARcur..s COURT, SATVIDAT, MAY 27.

[Before Sir J. NicuoL.l
By commission from the Archbishop of Canterbury, Charles
Severn and Malcolm Orme. Esqrs. were admitted amongst the
number of Procurators-Genera!, whit the usual formalities.
. .

Some business of course haring been disposed of, the Arabes
Court then adjourned.

PREROGATIVE COURT, SATURDAY, MAY 27.

Sir J. nolo'. then proceeded with the business of the Preroga.
tine Court.

In the case of Drinkahl v. Drinkald, which lay over from the last
Term, the arguments of Cou'•sel were resumed and presently con-
cluded, the Court having intimated that the case was so clear, it
RR unnecessary for the Advocate of the ekccutors to proceed with
his reply. _ _

.
Sir J.• NICHOL then proceeded to give judgment, and entered
briefly into the circumstances of the carte. The suit was brought to
try the validity of a will, executed by John Drinkald, who died in
December, 11123, leaving two sons, John and Joseph Drinkald,
and a married daughter (Mrs. West). The testator had a third
son, named Samuel, who died in 1022, a year before the death of the
testator. At the testator's death his real property amounted to
about 511,000/. besides copyhold and leasehold property of the value
of 550/. per annum. A will and three codicils had been propounded.
'flue will was dated the 14th December, 1818, and the first codicil
was written at the foot of the will, and bore the same date. The
second codicil was dated the 19th March, 1821, and the third codi-
I cil the 211th August, 1822. The substance of the will was, that
1,11001 should be paid to Mrs. West after the testator's death, and
4,0001. placed in the hands of trustees for her use, and after her
death to revert to her children, if she left any ; but if she died with.
out issue, this sum was to go with the residueof the property, which
was to be divided equally between the three sons, John. Joseph,
I and Samuel, share and share alike. The first codicil gave the
daughter the one-fourth of the testator's household furniture. The
second codicil recited the purchase of a particular estate given to the
sons; and the third, after reciting the death of the son Samuel.
gave his share to be equally divided between the two surviving sons.
All these instruments were now yiropount ed by the two sons, and
opposed on the part of Mrs. 11 est, on behalf of whom several
allegations were put in, to the effect that the will now introduced,
and dated 1818, was really executed in 1814. A plea was also put
in by Mrs. West, alleging the incapacity, childishness, and imbe-
cility of the testator at the period of his death, and for twelve years
preceding, embracing the time when the will was executed. It was
further stated, that the testator had a greateraffection for his Haugh.
ter than for any of his sons, and that he had exemplified his strong
affection for her in the execution of a will made by hint in 1802, in
which he appointed her executrix,and left her a considerable property.
The comparison had been strongly made by Counsel, between the
will of 1802 and the will propounded : but the Court did not per-
ceive that there had been any great difference in the arrangements
made by the two wills. In both cases Mrs. IVest was left about
6.000/., and this provision was made only for life; for in both wills
the testator devised that, in the event of his daughter's death
without issue, the sum left her should fall into the residue of the
property, and be divided between the three sons. The question of
capacity was the main point to which the evidence hall been di-
rected. Fifteen witnesses were examined for Mrs. West, and
twenty witnesses on the part of the executors. There had been a
great confliction of statement between those witnesses, which the
Court conceived arose rather from the peculiar circumstances of the
case than from any intention to depose falsely. At the time of his
death the testator was eii,;htr-three years of age. He had been a
lighterman, and attended to the out of door work, leaving the ma-
nagement of his books and his pecuniary Concerns to his Wife, and,
after her death, to his sons. Mrs. West was married to a grCcer in
Shoreditch, and rite parties all lived in affectionate inteuceurse ;
but the Court could not find any thing in the evidence to justify
the presumption that the testator had a warmer affection for his
daughter than for his sons. On the contrary, he was often heard
to speak of his sons with pride and approbation, remarking their
prudence and industry, anti observing exultingly that they were not
'• pipe-smoking, tavern-going gentlemen." As to the circumstances
under which the will was originally executed, in 1814, it appeared
that the testator had given verbal directions to Lis solicitor—that his
intentions were expressed in the cleareat manner, and that there
was no evidence of incapacity in the testator's manner. The same
disposition of property was preserved when the will was re-exe-
cuted, in 1818. Whether the disposition of property made by that
will was disproportionate or not, the Court was hot bound io de-
cide ; but, after a careful examination of the evidence, the Court
was. of opinion that, though the testator sometimes evinced a cer-
tain degree of imbecility, and yes subject to occasional lapses of
memory, yet he was fully capable of comprehending any ordinary
subject to which his attention was called, and therefore that he had
a disposing mind. The necessity of his executing the third codicil,
after the death of his son Samuel, was suggested hy the family so-
licitor ; and the testator, when he signed that codicil, appeared
fully aware of its intention, and signified his approval by the rea-
diness with which he executed it. There was nu difficulty of access
to the deceased ; there was no evidence of fraud or clandeatinity.
Under these circumstances the Court was of opinion, that the suit
was in some degree vexatious; but as the executors had very pen-
perly and very creditably waived their right of applying for costs,
the Court would not make any order on that point, but content
itself with pronouncing tho will and codicils propounded to be valid
documents, executed by the testator when in sound mind, and
capable of disposing of his propetty.