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London, England, 1825-11-09 00:00:00

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hit, n taking from a parent the custody of his children. In this
eau there was no pteuedent in the way. In the cue of George
Selwyn. to which his Lordship alluded the preceding day, the
tathet claimed no legal rights. In the cue under Powell's will,
tae father, during the life of a testator, left him the care of his child,
and upon the testator's death he transmitted his guardianship to
trustees. In the case of P. B. Shelley, that unfortunate and in-
discreet young man, claiming the right to educate his children,
openly avowed his disbelief of all religion, and his Lordship said
he *ostld not allow the infant's mind to be poisoned with such
doctrines whilst an infant, though he should not interfere with his
sentiments if he had arrived at tnaturer years.
The COURT—With regard to the principle of jurisdiction, Mr.
,Hart, I abide by what I said in the case of Mandeville v. 31ande.
• ill. ; bat I don t mean to say that it does not require a very strong
case to induce the Court to break in upon the father's powers. Ten
thousand pounds, he understood, was left by will to the younger
children, of which the infant (Florence) had a right to an aliquot
share.
)I.r. HART—As to the daughter, my Lord, Mr. Moore says,
that. though hi., in point of law. she is not in point of fact. Ile
duct not require the custody of the female, nor IS Mrs. Fitzgibbon
unßious to give her up.
The Loan CHAKCELL on—The Court cannot allow any one to
ammo that those children are Until lately. I we, not
aware that this was a petition in the name of legitimate infants,
tnitio4t themselves to be illegitimate.
Mr. HART—Our object is, my Lord, to have the petition dis.
swaged with costs.

The Loan CHANCELI.OR—Bat who is to pay the costs?
can't make the infants pay them.
Mr. BART continued. It was a bard case that his client should
Le put to the anxiety and expense of defending himself from the
petition ; and, although the Conn should decide for him, he must
still be innthened with costs. But, to leave this part of the ease,
no doubt there were a variety of cases in which the Court might
interfere to take the custody of a child from itsparencand there were
others in which it would not interfere. As to Lord Brandon's
opinion, it was net founded in fact ; and it was as uncharitable an
!pinion as ever entered the mind of man. When the Noble and
Revereisd Lord looked seriously at his affidavit, he would regret
that he had thrown such an imputation upon Mr. Moore.
Mr. Hiatt, argued on the same side.
The LORD CU•NCELLOR said, it seemed inconsistent that the
House of Lords,where he presided, should not hear in divorce cases,
even from the parents, a word as to the legitimacy of the children;
and when he sat here, the infants themselves, by their nearest
friends, asked him to presume that they were illegitimate.
The Sonrcrroa-Gxxettat. was prepared to argue that the
petition. whether right or wrong, did not besterdise the children.
The Imeo CHANCELLOR said, be rather thought, speaking
generally, he would never be disposed to withdraw the custody
a a child from his parent upon the ground of mere pecuniary pro.
Simon.
Mr. fitranwtxx, against the petition, commented strongly upon
the character of the parties. There was no imputation upon Mr.
Moore but the frivolous ground of cruelty contained in Lord
Brandon's offidavit. (If the other party, it was not enough to say
they were infamous. They said so themselves. No decent per-
sons could associate with them. As for the woman, her character
was quite lost ; and as to Mr. Fitzgibbon. though he signed himself
IH. P. and a grand juror of the county of Limerick, the part he took
stealing those children marked his character. No doubt, if the
children were left in the care of such persons, they would /be
brought up in the practice of the most abandoned vice. Ile
thought that it would be an indelible disgrace to the Court if the
petition was not dismissed with costs.
Mr. Sttnote followed on the same side. He begged his Lord-
ship to bear in mind that Mr. Moore swore that he believed the
mole child to be his own, and that he had lived and cohabited with
'his wife during the whole period of her illicit intercourse with Co-
load, Fitzgibbon. From facts that had recently come to his know-
ledge, be believed the female child was not his own. The petition
went to the principle, that any men to whom smother may be false
tan choose from a family a child or children, and obtain possession of
such child or children,in despite of the natural feelings 'of their legal
parents. For the space ofa year and a half the male chtld was brought
up as Mr. Aloore's, and this was a period when children began to en.
twine themselves about a parent's breast. Ifthe petition was allowed.
the mini would perpetuate not only the infamy of the mother, but
the bastardy of the children, of which there was no proof. By the
old law, the Illegitimacy of a child born of a married woman was
never admitted, if the husband was within the seas, so difficult was
it to prove that there had not been access; but here the father swears
that he bad never withdrawn himself from his marriage bed during
the continuance of the illicit connexion.
Mr. TRESLOVE (at the same side) ridiculed the idea of an
eqeitable right on the part of Mr. Fitzgibbon and his wife. It WAS
surprising the lady dal not put in an affidavit, she may be con-
sidered some little authority, as to who was the father of the child.
The Sotterron•Gteettax—Will you be satisfied, Mr. Tres-
love to decide upon her affidavit?
M. TR ISLOCE—I am not prepared to say that.
The Loan CHANCELLOR—It is not your province to decide
711 r. Treslove, and for my part I will not decide on her affidavit.
Mr. Solicitor-General, I shall hear your reply at the sitting of the
Court to-morrow.

VICE-CHANCELLOR'S COURT, TursoAY, Nov. 8.

ASIIBEY L. SHIPLEY AND OTHERS.

This was a case involving a question of priority among several
c:aitnanta, under securities on a part of the estate of the late Col.
Shipley.
The plaintiff purchased an annuity of 6501. per annum. secured
on a lease of tithes held by Col. Shipley from the Bishop of St.
Asaph. This purchase was effected in the year 1811, and for a
sum of 6066/. Other annuities on the same property had been pre.
riemly granted, of the title to which Dean Shipley (the personal
representative of Col. Shipley) possessed himself, and claimed un.
der them a priority to the present plaintiff. A marriage settlement,
to which Sir W. W. Wynn is surviving trustee. was also set up
against the right of the plaintiff. Under those circumstances, 11r.
Ashbey filed a bill of supplement and rsvivor, for the purpose of
bringing the several claims to an issue, and locating the priority of
the respective parties.
• 11r. 11•11 T, with whom were Mr. AGAR and Mr. PARKE, ap.
pond for the plaintiff; and the SOLICITOR-GENERAL, with Mr.
TII.,WEY, Mr. TEMPLE, and Mr. PETER, for the defendants.
It appeared that m the !year 1803, the then Bishop of St. Asaph
granted to Col. Shipley • lease of tithes amt a small portion of land
in die county of Radnor, for a term of 21 years. In 1806, Colonel
Shipley granted three several annuities to Mrs. Sophia Blake,
which were secured on the titles and land in question. Two years
after another annuity was granted in • similar manner to the same
party ; and the lease of the tithes was handed over to Mr. Ashbeys
as the trustee of the annuitant. In 1809, Col. Shipley procured a
renewal of the tithes from the Bishop of St. Asaph. for a further
term of 21 years. Col. Shipley being desirous of raising a farther
sum of money on the property, treated with Mr. Ashbey in 1811
for a conso:idated annuity of 6601. which be granted the plaintiff
Mr a eonCderation of 11501. The payment of this annuity was also
se be secured on the tithes and land in question, but it was prevl.
uusly necessary to pay off Mrs. Blake's annuities. This was done,
and they were extinguished. As it appeared that Col. Shipley
possessed no valid title in the renewed lease of 1809. the Bishop of
St.. Asaph consented to grant a new demise for an additional term
of 21 years. Subsequent to those tramactions, Col. Shipley went
abroad to avoid his creditors, and died.
On the part of the defendants it was urged that other and pre-
vious claims existed to the property. They denied that Mr. Ash.
bey was a ieniti fide creditor on the estate, and asserted that the
pretended purchase money was never paid for the annuity. but that
it was lost in gamingi ba/ Colonel Shipley to the plaintiff Two
worths prior to Mrs. I o's annuity, Colonel Shipley had granted
one to a person named Dolby, and it was also secured on the estate
in question. Dolby's right io this annuity waspurchased in 1813,
by Dean Shipley, who in that way claimed a priority of locum.
brance on the land and tithes. It also appeared that on Nov. If 2,
1006, Colonel Shipley married Miss Wynn, and her settlement, to
the amount of 300 L per annum, was secured on the tithes, through
the Medium of Sir W. W. Wynn, her trustee. In 1810, a great
variety of further annuities, to the number of six, and for various
amounts, were granted by Colonel Shipley, and all chargeable on
the estate In Radnorshire. These, as well as that of Dolby, were
also purchased by Dean Shipley. in 1816 and in the same year,
be surrendered his former lease, and procured • renewal through
the iustrumentality of a Mr. Hughes, the Bishop of St. Asaph's
agent. •
The Vics.Cumicet.t.oa-1 do not think it possible to decide

this ease without sending it to the muter to ascertain the nature of
the proceedings had on the deed of 1811. There exists an intrin.
(ble difficulty to coming to any decision in the want of facts. If
were to give Judgment in my present situation, when the case went
before another tnbunal (and I think It likely to go farther) the ap.
reliant Court would have to inquire into the facts of the case. It
is pretty clear that Dean Shipley must have been a patty to the
new lease, lee it is impossible to account for his conduct otherwise ;
1.1,4 nos one word of all this appears in evidence. At one period of
disuse I imagined I might proceed ; but I now see I cannot get on
with it in its present state, and must send it to the muter to state
the respective pricaiiies of the several claimants.
Mr. Ansa—Will your Honour direct the master to examine into
the accounts of the rents and profits of the estate ?
The VICE-CMANCEELoa—The accounts cannot be taken un-
less it first appears the plaintiff has a right. Till that point in
established, it would be useless to enter into a question of account.
Let it be referred to the Alasttr to inquire into the charges and in-
cumbrance., on the tithes and land in question, and mate the priority
tO the claimants, with liberty to mention any special circumstances
that nay appear necessary, at the request of either party.
At the conclusion of this case, the Cause Paper was called over
twice by the Registrar, but no solicitor engaged ui any of them wu
in attendance.
The Vica-CasxcELLOR directed an officer to go into the other
Coon c.d call over the list there, giving notice that all causes to
which an appearance was not made would be struck out.
It we, !Awed that no papers in any of the canes had been deli.
r,red tit the Court, and Mr. PEMBERTON, who was retained in
nre of ti ent, said his brief had not been delivered to him.
'rho Vice •Cma Ncaxxost then directed that all the causes
eould he snuck out of the paper, and accompanied the order by
esting—" I am very sorry for it, as it is* great prejudice to the
stunts itil.nse causes are to be put down again. It is altogether the
fount of the tiolicitors, as I observe there are no brief, de,ivorcd to
Ce:insel."

THE 1311,ITISH PRtSS.

note accident occurred there was a turning to the right, up &deep
hill. There had been two cottages standing just at the turning of
the road. It was proved by the coachman that it was the constant
practiee to draw up in • certain direction. in regard to these cot-
tages, in passing the turn, and that he had always gone safely by
observing that course, and by making the cottages his landmark.
This coachman went down the west on the preceding night, and
Ipetaled the two cettageti which were then standing. Previous to
ris return on the folliowng niht one of the cottages was removed,
and the gable end of the remaining cottage appeared in all respects
*Millar to that of the one which had been pulled down. The
coachman, not aware of the circumstance, when he came near this
snot continued to drive as if both the cottages were standing, and
kept the usual direction, in doing which the coach came upon pant
of the foundation of the old cottage, and the consequence was the
coach overturned, anti the plaintiff suffered the injury complained
' of. Mite WS an attempt at the trial (and it served to show how
incorrect the observations of persons were on such unfortunate oc-
cnsions) to impute the accident to other mimes, and some witnesses
attribute-a it to the runoius up of the coach on the footpath ; but it
was proved that there was no footpath whatever near the place.
The Learned Judge, however, told the Jury that in his opinion
the plaintiff' was entitled to their verdict on the evidence. His
Lordship, in stating this. observed, that it had been admitted that
the coach was overturned be reason of its being out of the limit of
rho road, and it hail also been admitted that if the coachman had
bad notice, or had known that the cottage had been removed, lie
might have avoided the accident, and bin Lordship was of opinion
that although no criminal negligence could be imputed to him, yet
in point of law he was bound to hare kept Coe limit of the road,
' and it was at his own peril- that he got out of it. So that it ap-
peared that the Learned Judge did not impute the slightest negli-
" genet to the coachman, but he considered that in point of law he
i was bound to know that the cottage had been removed, and that he
ought to have kept within the limits of the road.
Mr. Justice Pane—Did it appear that he had lights 7
Mr. Sergeant WYLDE said it did not ; and that lights were not
necessary, as it was proved to be a tine man-light night. The
moot mat presented by the Learned Judge to the Jury was, whe-
ther this was a legal negligence or not, the coach being out of the
limit of the road. It was necessary to consider what were the legal
obligations on coach proprietors. There was a distinction between
the liabilities of carriers of goods and carriers of persons. A car-
rier of goods was an insurer from all accidents that might happen
from whatever cause, meta two, namely, accidents arising from
the act of God, or from the King's enemies. But not so with the
carriers of persons. There were cases in the books, in which this
distinction had been recognized. The tint ease was that of Aston
v. !leaven and another, 2 Eapinasse, N.P. Rep. :al air. Ser.
geant Adair, who led that ease on the part of the plaintiff, had
stated in the course of the trial, that he should contend that it was
the case of an action against &carrier, and the rule, as to the case of
goods, applied to the case of the carriage of the person ; so that
let the mischief happen under what circumstances it would (except
by the ant of God or of the Kings enemies), the carrier would be
liable. The Lord Chief Justice Eyre, in giving his opinion on this
point. observed that the action was founded entirely in negligence,
and that he was of opinion the caws of the loss of goods by carriers,
and ihe one then tinder consideration, were totally unlike. Carriers
of goods were liable by the custom to guard against frauds which
they might be tempted to commit, by taking goods entrusted to
them to carry, and then pretending that they had lost or been rob-
bed of them ; and this custom •f liability was founded upon
the ground that the carriers could protect themselves; but
there was no such role in the case of the carriage of per-
sons. Surely, said the Learned Sergeant, it would not be argued
that a proprietor of a gage-coach was like that of a common
carrier; and that as the one insured against the loss of goods, the
other lammed against the loss of life and limb.
The Loan CHIEF' Just' res.--011, no! brother ll'ylile, you
-.ail not go any further in that line of argument. If we look at the
rate at which coaches are travelling now, and any of us could get
hold of one where we could insure ourselves against the dangers
to life and limb, it would be a coach we should all be very glad to
travel by.
Mr. Sergeant ‘1"-v LDE apprehended that the present action pre-
gems) circumstances as distinct as possible (torn the one against a
carrier of goods. It wax not meant to be said on the other side,
that the coachman here had been guilty of any negligence.
Mr. Justice PARK—Have you any other case, Brother Wyide ?
Mr. Sergeant WYLDE said there was of " Christie v. Griggs,"
2 Camp. p. 00, which also stipposed the principle for which he
was contending. Ile had starched the other books, but did not
find the queation to have been contested in any of the other Courts.
lie would. upon those he hail quoted, contend, that as no culpable
negligence was imputable to the coachman, but, on the contrary,
as the whole of the circomatancis went to show that, instead of his
deviating front the usual safe course, he had always hitherto pur-
sued, he was acting, as he %bought, in the most cautious manner.
therefore it war an inevitable accident, for the consequences of
which he could not be Made legally responsible. Suppose
a carrier by sea, who was accustomed to steer his setael by an old
sea mark, and which, in his absence, and without his knowltalge,
should be removed to some °thee place, and he, as usual, were still
to gnide his vessel by it, could it Ire contended that any thing that
might result from the circumstance of removing that sea-mark
would affect him, when his very observance of it, and his best at-
tention to his duty in steering by it, would be the sole cause of the
accident ? .

The Loin CUTE? JUSTICE-1 think you hare stated quite
enough, brother Is ylde, to entitle you to a rule to show cause.
The rule Nisi was accordingly granted.
MUNN r. 00131101.13 AND ANOTHER.

This was an action tried ...... CheLOrdUtier Justice Beat, at
the late Sittings in London, brought by the plaintiff against the
defendants, who had employed the former to vend their celebrated
quack medicine, called " Godbold's Vegetable Balsam," on the
Continent of Europe ; but the speculation having unfortunately
failed, the dispenser of health applied in vain to his principals to
hare the money he had paid them on the bargain, which was that
of sale or return, refunded, and was driven to the necessity of en.
forcing the written contract entered into between them, in which
he succeeded so well that the Jury gave him a verdict for 3115/.
It appeared at the trial that the agreement which was signed by
the defendants had been left by the plaintiff in the care of a friend.
who, in removing his place of residence, had lost it ; the plaintiff'
was, therefore, obliged to produce the next best evidence, which
was a draught copy of the original. But the defendants having in
their possession another part of the agreement which was signed
by the plaintiff produced it to the Court. when it appeared to be
without a stamp. Proof, however, was given that the part which
was lost bore the proper stamp required for instruments of that
description ; and the Lord Chief Justice held it to be unneces-
sary for the one now produced to be stamped, considering only as a
copy of the original, or at furthest a part of the agreement, ■od
not a distinct instrument, and lie accordingly admitted it to be put
in evidence.

Mr. Sergeant BoasstuttrY now moved for a rule to set aside
the verdict and that a nonsuit should be entered, upon the ground
that as the original was lose, the counterpart held by the detendant
was the next best evidence, and was therefore properly produced.
Hi: was necessary then to be produced, the question was whether
it ought not to have boreal stamp ? By the Stamp Act all deeds
were required to have a stamp, and he contended that this counter.
part was a distinct and separate deed ; and that the two instruments
did not, as it had been argued, constitute one deed. but were two
distinct inetruments, each of which, therefore, ought to have been
stamped. There was a particular exception in the statute as to
agreements which were not deeds, but the present action had been
brought upon a convenant, and that instrument constituted a deed,
and did not, therefore, fall within the exception.
The LoaD CHIEF JEATICE thought it would ba very right
that the law should be settled upon this point. The impression on
his mind at the trial was, that the instrument produced did not re.
quire a stamp, because the two parts were not two enumerative deeds,
but constituted only one deed ; and he had refused to reserve the
point for his Brother Teddy, because those who were present must
really have seen that such a deed had been in existence ; and every
one knew what would be clone in case the objection had been al-
lowed to prevail: the deed would have been required to be im-
mediately stamped, and probably much larger damages would be
given nn a new trial. But as it was desirable that the law should
be settled, he thou& the Role should be granted.
The Rule Nisi was granted accordingly.
At one o'clock Mr. Justice Park, Mr. Justice Burrows, and
Mr Justice tiaselee left the Court ; and the Lord Chief Justice
BEST proceeded to try some Common Jury Causes, at Nisi

ELM:INTON. BART. F. BROWN, ESQ. AND WIFE.
This was an action for use and occupation of a house, being
No. 79, Gloucester-place, which had been let by the plaintiff to
Mrs. APDangal, whip had since married with Win. Brown, Esq.
The defendants pleaded the general issue.
It appeared that M rs.M 'Due gal, the widow of Admiral Nl'Dougal,
had authorised Mr. Brown, who acted as her agent, to rent a ready
furnished housefor her; and that in pursuance of her instruction that
gentleman had applied to Mr. Johnson, the respectable hot,se
agent, of Bontl.street, to whom Sir W. Claughton had intrusted the
letting of his house. No. 79, Gloucester-place. to look at it. Ac-
cordingly Mr. Brown„ Mrs. M-Dougal, and Mr. Johnson went over
the house, and after satisfying themselves with its appearance, and
the convenieneies of the furniture, &e. a memorandum of agree-
ment was made by Mr. Brown, on the lady's behalf, to rent the
house for one month, at a rent of ten guineas a week. Much anx-
iety wan shown by Ma. AP/Thug-al to take possession, anti the
key was accordingly given up to her servants, who went into it to
make the necessary preparations for its immediate occupation by
their mistress, w,to was in the mean while staying at an hold. The
servants entered the house, some windows were repaired at Mrs.
M`Dougat's expense, and some beef steaks cooked and ate in it
by the servants. But the lady's maid all at once discovered that
the house was so damp, and it would take so much trouble to put
a polish upon the grates, and make the underground kitchen c,m-
fortable for herself and John the footman, that she thought it
would be as well to persuade her mistress to endeavour to get rid
of her engagement, as they could not live in the place with any
comfort. A proposition was accordingly made to Mr. Johnson to
give up possession of the house, but this was rejected. ft was
then pretended that application had been made to Sir William
Claughton for hia consent to rescind the agreement, aid thiss he
had complied ; but Mr. Johpsan considered this too improbable,
anal would not believe it unless sonic written authority were pro-
duced ; lie,, however. offered to let the house, if possible, for than
within the month. No definitive arrangement was conic to. and
in this state of things the house was left. Application hied been
made for the rent, but in vain, and therefore the present action was
brought. Mr. Brown ' ' Mrs. M•Dougal, so that
was necessarily made a
rittesaes. who proved the