The British Press; or, Morning Literary Advertiser.
London, England, 1825-04-19 00:00:00

APPEAL.

ROUSE OF LORDS, Aram 18, Mt

Henry. Hoyle Oddie. Appellant, anti Sir Ralph James WoodGrd;
Bart.. and where, Reepoodents.
• This was an appeal IM7I a decree of the Lord Chancellor-A. ca a
qaestioei ai.aing out of the will of Peter Thelluson. The litiga-
tion' on this will has heel so extersive that a very slight recapitu-
lation of facts will suffice to recal the whole of the cireednatancas
to the minds of nor readers. Peter Thelimos, Esq. the testator,
tiled 93.1 Jul.. 1717. By his will the property was directed to
cumulate during the lives of tire testator's three sons, of all their
ann., and all the 'est..: of his grandsons who should be living at
Ins death, or be born in due time afterwards. These three eons ware
Peter Isaac, afterwards Lord Rendlesliam ; George Wadded.
and Chilies Thelluson. Trustees were appointed by the wig, and"
various provisions made for the disposition of the property till the
period appointed for its accumulation had expired. Among others
wax the following for the dispossl of advawsons—" And with
spect to the said advewcatn, right of patronage and presentation
belonging to any other estate that may hereafter be purchased by
my said trustees" the survivors or aurvisor of them, or any littera
trustees tar trustee to be appointed as hercinbefore mentioned, f
order and direct that my said trustees do and Ail:, when and as tiro
same shall rcspeetively be or become void or vatarli. present abe
and proper person therm, who shall for that purpose 'be homiest...
by one of my said sore in rotation, the eldest having the 'Battu-
mination, and the like norm:lt:don to be made by the eldest male
lineal descendant of try three tons respectively, in the order and.
rotation aforesaid, if he be capable by law of making such norniaa-
tion when the church becomes vacant, or io due time afterwards,
otherwise the eldest male lineal descendant of the nett brother to
to present to such living ; and in case it shall so happen that when
sis hliving or livings ellen respectively have become void, or to
dueitime afterwards no male lineal deer-et:dant. of any of my said
eons shall be capable of presenting thereto, I direct my mist
trustees, or the survivors or survivor of them, or such (more
trustees or Hosier for the time being, to present to such 'ilia,: or
livings respectively." A t the time of the testator's death he ban
only the presentation to one ; but by the purcases eine made
by the trustee; five had successively become vacant.. The thtee sons
of the testator presented to the three first that became varant'in rota-
non. The fourth presentation was made by the eldest son of the
testator's eldest son, the present Lord Rendleshain, and the ques-
tion now is, who has the right of presentation to the filth. The
appellee*, Henry Boyle Oddie, claims in r4htof his mother (Au
elder tester being unmarried), second daughter of George Weed_
ford Thelluson. The point in question is, what interpzetatiah
shall be put on the phrase " eldest male lineal descendant. Thf
arguments on the claim of the appellant in February, 1821, before
the Lord Chancellor, occupied a week ;an in the following No-
vember his Lordship made a decree, by which he declared the
right to present to the living in question not to be in the plaintiff,
and ordered that the plaintiff's bill should be dismissed, unless ant
appeal should be presented by the plaintiff within a month from the
next sitting of Parliament The appellant did in consequence, in
February of the following year, present a petition of appeal to the
House of Lords against the decree,which now came on for hearing, .
the Lord Chancellor being assisted by all the Judge% in town.
Mr. SHADWELL contended, at considerable length, on the part
of the appellate:, that lie united the fourfold character of " eldest
male lineal descer.dant," and was therefore entitled to the pre.
smtaton.

JII%tiTIIEBOTTOTS followed on the same side.
Mr. HART %,t'Utt then heard Ibr the respondents, and tht hearing
was adjourned to that day week.

LAW IN7'ELLIGENCE.

VICE-CHANCELLOR'S COURT, Aran 18.

EX•PAIITE DEVCkON. IN THE MATTER OF SMITH.
Mr. PARKER stated that this sas a case in which Mr. Smith had
been struck off the rolls, and he was instructed to move that the pe-
tition in this Court might be restored.
His Ilosora desired to know what became of the petition
Mr. PARKER said, it appeared that Smith had appealed from
the order of his Honour to the Lord Chancellor—that his Lordship,
upon hearing the appeal, directed certain things to be done by
Smith, which he had not done, and now he asked to have the peti-
tion in this branch of the Court restored. The case had led to a
great deal of correspondence between the parties, which he (Mr. P.)
held in his hand. Smith's distress was very great, and the Learned
Counsel was anxious to do all for him he could. Smith would not
be satisfied, unless the present application was made—what might
become of the petition afterwards was another thing.
His Ilotroun said, he recollected the case perfectly • it was
case in which the Court of King's Bench had struck Sn;ith nff the
Rolls, end upon a petition presented here, the Court thought it
was bound, as a matter of course, to strike him off the Rolls of this
Court also, which it did. His Honour did not exercise any judg, -
ment in the case whatever ; but tae Lord Chancellor had heard the
cue fully uiscussed, and exercised a judgment in it; therefore it
was quite impossible for his Honour now to interfere.

BUTLER V. DORTON.
A gentleman behind the bar moved in this cause, that it might
be referred to the Master to inquire whether any of the timber that
had been cut on the Northamptonshire estate. by the defendants, in
violation of an order of the Lord Chancellor, was lit to he cut as
timber • and if it was, whether any of it was wanted for the re.
pairs of e ;tete, and if so, that such of it as might be so wanted
should, under the direction of the Court, be used for that purpose..
And al.*, that the remainder of the timber, and all the timber•llkw
trees which were cut down, should be ordered to be sold, and that
the produce should be paid into the Court to the name of the Aa-
countant-General, to abide the further order of the Court.
Motion granted.

COURT OF KING'S BENCH, Mom)AT, APRIL 18.

Adjourned Sitting.: after Hilary Tenn, before the LORD Cmar
srtcr and Special

onorxxxo v. Wf1.11X90,7.
This was an ac: ton of tr.-wet, brought to recover damages in con.
sequence of the detemlant having unlawfully detained and con-
verted to his own use a number of East India Warrants, entitling
the holder to claim at the Company's warehouse 30 hales of Some
cotton, and which warrimts were the property of the plaintiff. The
defendant pleadrd the genera/ issue.
It appeared by the evidence that the plaintiff, who wart a 4c,
living in Middlesex, occasionally had dealings with a Mr Pb 1.
Lipson, who was by trade a &rialto, sometimes by joining him in
purchases made on speenlation, or by engaging him to act for him
as his agent or broker, and sometimes by making regular purchases
of him. Mr. Phillipton having bought 180 bales of Stine cotton
on his ownpuceunt, the plaintiff, in July 1823, agreed to purchase
90 of them. The invoice was made out and delivered to the plain-
tiff, amounting in the whole to 1,0701.185. 11d., but which included
the price of 10 chests of black dye. and the usual charges for bro..
kerage. The plaintiff paid Mr. Phillipson this money, but suf.
feted the warrants for the cotton to remain in his hands, and in.
atructed him to Fell them for him (the plaintiff) as soon ass profit
could be realised. The stare of the market not having authorised
Mr. Phillips= to sell the goods, the warrants were retained by hits
till August 1324. when his affairs becoming embatrasned, be made
application to the defendant to assist him with the loan of about
14001. Alr. Wilkinson declined lendlotpl the money, but offered
to purchase any goods which he might then have to sell. Mr.
Phillipson .
then said that he had - bales of cotton, and world
sell them to him upon the understanding that he (Mr. P.) should
be at liberty to buy them bark again st one-eighth of a penny
advance upon earl; lb. These terms were agreed to, and Mr.
Phillipson accordingly delivered over to the defendant the •East
India warrants for the 203 bales of cotton, Eve of which warrants
belonged to the plaintiff Mr. Greening, being for 30 bales. The
dCer.dant paid Mr. Phililmion on the 23d of Augest, 1524,
1,5441 Ills. Si'. for there. warrants. On the same day the ale.
fendant drew a 13111 of Exchange on Mr. Phillipson for the re-put.
chase of the conon. a: the advanced price of one perry per lb. :
the warrants. however, retraining in the defendant's possession as a
security for the pay,r.eht of the bi!l. Theounount of the bill was
1,6001. g a difference of 351. 10s. 43. The bill was
never paid by hlt. Phillipson, who subsequent?)• hat be:ome a
ban krunr.
Hr. SCARLET,* argued that this was clearly nothing more than
a pledge of goods upon a usurious lean of money. but et:dra-
t routed to be ;sgui<ed by a perchase and a re-purchase. The sale
was altoge;!•:::: fictitious, and as the law had decided that no broker
should be allowed to id:dge the !roods of his prii:cipal. the, bein;
entrusted to him for este only, and this being no sa'e, tilt a vase
pledge, he contended that the defendant had no: a Tight tet retain
the warrants, and was therefore answerable to the plaint ff for the
amount of the 30 halm The value of cotton in October hat,
whit the demand and retosal was made, was proved to be OJ., sal
at the present titre 10:1. per lb.
The ATTOSWEV-GtNFRAL. before 'dal:easing the Jury for
defendant, observed, that if it should be decided that the
plaintiff was erithted to recover, yet, accordi:g to the law Ilia
down by Lord Elleobomugh is M (MKT V. opera, 3 Campbell);
Rep. p. 477, he maid cut), recover the value at the time of tbe de-
mand and reasa :lade, and not at the time that judgment was ob-
tained. •

The Loan- fluor .frivics said, that that ease by no means
*tithed him that the plaintiff was limited to the time cf the con-
vention; and that it was a question for the Jury to consider what
price the Plaintiff should be milled to. . •
The Avronwaw.Graraat. then sail, the Jury hed tone-
min two qu.v.tionsa—lat, if they were of opinion that the plaintdf
ought to reenter, what amoant they would consider him eatidsd
re ; and, secondly. whether he was etitijed to recover at all. The
Learn:it Gentlem..n then contended, that the person holding the
warrants was prilts facia the Darner of the proper,. as the redo
thetnartvea rrinained In the pessessioo of the East India Cernpaoy-
The selling the wigwams was, in fact, selling the goods, and the
&lively of the warrants was aU that was ftleinte to entitle the
purchrmer to deiiraed the goods. But in this case. the plaintiff had
DOS asked for the warrant& Aeeordtng to the evidence, the money
vws paid. but the warrants still rrrnstned in the herds of Philbp-
son, who dealt aiitt the property as his own, and held the orarmors
for 13 or 14 tocsiths after the original transaction between hem aal
the plaintiff: If such a vow were to be allowe.l. every
would be etc..ied to persona to cheat the fair trailer. wittr::::t
only those ciatensitile marks of property, via. the actual preireitason
of the *errant. as bis guide. He thought the Jury, under these
eircunreaners, were at liberty to entertain a doubt nis to this being a
bows cede Era:wavier. between Phillipagn and the plain.t.tff.. It ap-
peared to him that the sale to the defendant was a oeinect said
tore Ade sale, 5.4 t`n.: the relnuchre by Pbefipson w..i a separate
P an"' ;Liam altogether. The Jury mutt be somata ;bet the stn.