The Sun.
London, England, 1855-01-31 00:00:00

LAW INTELLIGENCE—(Tan. 3 0.)

COURT OF QUEEN'S BENCH.
TM MAYOR OF NORWICH v. THR NORFOLK RAILWAY
COMPANY—P=II3 NT.
In this case the facts were as follows :—The defend-
ants were authorised by their act to construct a bridge
over the river Yare, at a place specified in the act. They
prepared.to do so, but:were compelled, owing to the want
of a good foundation, to abandon the attempt, and with-
out the necessary authority they commenced the erec-
tion of the bridge is a different part of the river by
forming a pier in the bed of the river. The corporation
of Norwich preferred an indictment against the company
for a nuisance, on the ground that the pier obstructed
the navigation of the river. The indictment was found
by the grand jury of Norwich, and was removed into
this court. While the indictment was pending a deed
was entered into by which the plaintiffs covenanted to
allow the pier to remain, and the defendants covenanted
to execute the works and complete the bridge of which
the pier was to form a part, so that the navigation should
not be interrupted, and to use their best endeavours to
obtain an act of Parliament to sanction the works.
Whether the company obtained an act or not they were
to complete the bridge within 12 calendar months, or in
default they were to pay a sum of 1,000/., recoverable in
the nature of liquidated damages. An action having
been brought to recover the sem, it was pleaded that
the stipulated works were not authorised by the act, to
which there was a demurrer. The court had reserved
their decision.

The court being divided in opinion, the learned judges
delivered judgment seriatim.
Lord Campbell and Mr. Justice Erie (who, having
heard the argument; came into court to deliver judg-
ment) were of opinion that the railway company was
entitled tothe judgment of the court.
Mr. Justice Coleridge and Mr. Justice Wightman
held contra.
BOBINEON AND ALTS v. PHILLIPS AND ANOTHER—
ATTESTATION o WILLS.— IMPORTANT DECISION.

Lord Campbell, in delivering the judgment of the
court in this case, said that the plaintiffs claimed posses-
sion of a house and garden under the will of William
Turner deceased, and the only question was whether
the will had been duly subscribed by the three
attesting witnesses. The case came under the statute
of frauds. There had been no objection as to two
of the witnesses, but there had been a serious diffi-
cult* as to the third. It was proved at the trial that
one of the witnesses—the witness whose attestation was
objected to—William Bevan, had been sent for by the
testator to attest his will, and that he signed his
name at the same table as the other two wit-
nesses. The learned judge at the trial desired the jury
to say whether he saw the will executed by the testator,
and signed by the other subscribing witnesses, and. whe-
ther he signed it at the same time as the eisizier subscrib-
ing witnesses. On the firling,g, •Jne-jury, the learned
judge directed a verdjsJato‘be entered for the defendants,
who claimed upstrzrihe heir-at-law, reserving to the plain-
tiffs /sasses's-6 move this court on the point of law. The
objection taken during the arguments was that there
was nothing to show that William Bevan was a subscrib-
ing witness. The court thought that objection could not,
hold good. A more important objection was, that from
the place in which his name appeared it could not be
considered that the will had been subscribed by him
within the meaning of the statute. William Bevan had
signed on one side of the will, and the other two wit-
nesses on the other side, under the testator's name. It
was most remarkable that there was no case in the books
from which it appeared it had been decided where the
subscribing witnesses were to sign a will. The statute
did not point out where a will should be signed. It was
difficult to conceive that the legislature intended that
subscribing witnesses should sign their names at the bot-
tom of the will, and that the testate: should sign at the
top. The Court was now called upon in this most im-
portant case, to put for the first time a construction en
the new Wills Act of William IV., which enacted that
the signature of the testator should be signed in the pre-
sence of two witnesses, who should subscribe their names
in the presence of the testator ; but neither in that nor
in the amended act of the 15th of Victoria was any
place indicated where the will was to be signed by the
attesting witnesses. When satisfactory proof Lad been
given that the witnesses had been called in by the tes-
tator to see the proper execution of the will, was the
court to hold that the will was to be void because the
name of an attesting witness was not signed under-
neath that of the testator I If the word subscriber were
taken in its strict term, it would be a perfect nullity,
but there wore many authorities for a less strict
acceptation of the terns Suppose a will were drawn out
on four pages, and the testator in the disposition of his
property occupied three pages, and the witnesses signed
at the top of the fourth page, would the will be properly
attested, though they did not sign under the name of the
testator ? Could it in such a case be intended by the
legislature that the will should be void. Then, again,
supposing that the will filled four pages, and a margin
was left, and there was a regular testimonial clause on
the fourth, or the first, second, or third pages, and the
witnesses signed that testimonial clause, was a will
so signed to be nullified I Was any difference to be
made whether the testimonial clause was on the margin
or any other part of the four pages of the will t In none
of these cares the witnesses could have subscribed their
names literally and strietly, but there was a difficulty in
holding that the will would be void if the witnesses sub-
scribed the testimonial clause under the signature of the
testator ; and if so there was a difficulty in saying it
was void if they signed their names under any part of
the same paper. Clear and satisfactory proof must iu
all cases be required that the witnesses had been re-
quested by the testator to sign his will, and tbat they
did sign it in his presence. The court was of opinion
that a will was valid, though the cignatures of the wit-
nesses were not under the signature of the testator. The
court did not overlook the danger of the result of their
decision, but it would not be attended with such danger
as the decision that a will written on several sheets of
paper with but one signature of the testator would be
sufficient. And it was also to be recollected that frau-
dulent wills were for the most part prepared in the most
formal manner. Every presumption should be made by
a jury in favour of a will, where there was no doubt of
the testator's intention. If the legislature in its wisdom
thought that the signature of the witnesses should be
placed on the same footing under the testator's name they
should say so in express terms, and they would venture
to express a hope that when the proposed change was
effected it would be more felicitous than it bad been
by the Act of Victoria. They had now, however, only
to express an 'opinion in this case, and they held that
under the statute of frauds the will had been properly
executed, and therefore judgment must be for the
plaintiffs.
Judgment accordingly.

POLICE INTELLIGENCE.—Jun. 30.

MANSION-HOUSE.—Robtrt Smith and William
Warner were brought before the Lord Mayor under the
following circumstances. There was a remarkable fact
connected with this case. Warner had en the day be-
fore been examined as a witness against a person charged
with having in his posssssion a quantity of linen of con-
siderable value, which had been obtained from the pre-
mises of Messrs. Chaplin and Horne, of upper Thames-
street, by means of a forged order, and is in the employ-
ment of the same extensive firm.
William Luck, 430, said—About 7 o'clock this morn
ing, I was iu Cheapside. I saw the two prisoners
standing at the entrance of Fountain-court, in Cheap-
side, and I crossed to the opposite side of the way, and
watched them. I saw the prisoner Warner at the cor-
ner of the Court. He had his hands up against a brass
plate which was fixed at the corner of the house, No.
31, Cheapside and Fountain-court, and the other pri-
soner was close to him at the same time. They both
stooped against this basket (producing a basket contain-
ing a plate.) In the course of a minute Warner lifted
the basket on the head of Smith, and they walked up
beside each other to the corner of Newgate-street, and
Warner than stopped, and had a cup of coffee in the
street. At that time I got the assistance of another
police constable, and we went up to Smith and asked
him what he bad get in the basket, and he replied
"Nothing." Parr, the constable who was with me,
said, "Let us look into the basket," and then Smith
threw the basket down and ran away. Parr followed
and took him into custody, and I took Warner into
custody. On examining the basket I found this brass plate
and parts of three screws. The prisoners were taken to
the station-house, and searched there, and I found on
Smith a screw-driver and a knife, and on Warner a
knife and Bd. Smith refused to give Lis address.
Warner gave his correct address. The prisoners had
walked together from Fountain-court to the end of New-
gate-street. A great many robberies of this kind have
been lately committed in the neighbourhood of Cheap-
side.
A gentleman here stood up in court and said that he
was one of the managers of Chaplin and Horne's establish-
ment,
and that he knew Warner to be in the employ-
ment
of the firm upwards of 6 years, and to be consid-
ered one of their best men.
The prisoner
r
Smith said—l never saw this man (allud-
ing to Warne
H. West
421;3tere I was taken into custody.
yesterday morning said-4 saw the prisoners together
innenyaetr.2aotioixin Mutes to 7 o'clock, in the
Old Jewry,
Cheap-
side and down Lino-street, aslffaorllaoswle d
couldthem usee
them.
About that time a very large plate was stolen. lam
positive that they are the whom I saw together.
Warner—l was not in Fountain-court, nor in Cheap-
side till I was taken into custody,
Luck answer to questions by the Lord
P (430),
Mayor, said—l never lost sight ofthienpriFsotanetragcn_aez
were about 2 or 3 minutes together
When I first saw them, the basket was on the ground,
and I saw both of them stoop towards it. Afterveads
they lifted up their hands towards the brass plate. It
was sufficiently light for me to see. There is other evi-
dence to prove that they have been seen together before
this day. quarter to 7 yesterday
E. Williams 473) said—At a
morning, I was close to Gresham-street, and I saw the
two prisoners pass up Gresham-street, towardsl Alders-
gate-street. Smith was carrying a basket. am cer-
tain that Warner was the man who was with Smith. I
identify Warner by his dress. I thought it was fish
they were carrying. I heard of the loss of a plate soon
afterwards.
Warner (who was stated to be extremely punctual in
his attendance at the wharf) denied that be bad been
in the neighbourhood of Chcapside on Monday morning,
S "and said he had gone from his house at the west end of
'''.. 1,-4 ty- to Hari:Abr.' wharf his place. of bnsiness, by
0 t 4' ' , :et t
4.8.0,"
„... • qut&•,,h en route on that day.
2,.
,:_,,7scrgia, Vp .ay said—l. Sell coffee in Newgate-street
Us ' s., i . veil'
1
11,4,15,
slapieraiai ,1. At six minutes to 7 o'clock this morn-
si:l-,:‘ E...,55,i..-'- 4iv4-• loner cross over from Cheapside_ to my
'1"-Alkt .?c-^. . - , t , corner of Nevegate-street,
'
.......?4,
He came up,
471-Altf 7, g'S ic a jl,l