The Sun.
London, England, 1839-12-10 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, DEe. 9.
COOKE V. BEETHAM.
Continued from The Sun of yesterday.
The LORD CHANCELLOR, at the conclusion of the ar-
guments, said he thought there would be considerab
difficulty in settling the rights of the parties by an ac-
tion at law, for there could be little doubt that the mo-
ment the case was called on the Judge would say, as it
was a matter of complicated account, it ought to go to a
reference. His Lordship thought the parties would
do well to consider among themselves whether they could
not come to some arrangement by which their rights
might be decided ; nevertheless, if the parties called upon
him to decide advisedly between them, from the experi-
ence he had had in that Court, he felt convinced that it
Aould be:acting unjustly towards the defendant to con-
tinue the injunction without having the money in Court,
and there would be even a difficulty attending that, inas-
much as no specific sum was sworn to. Perhaps the better
course might be, for the purpose of deciding the
of the defendants, to allow the action to go on,
the defendants admitting for the purposes of the action
that a certain sum was due for professional charges, the
defendant ( Mr. Beetham) being at liberty to apply to
dissolve the injunction, quoad executum, upon the ver-
dict obtained.

At the suggestion of Mr. Wakefield, his Lordship
permitted the case to stand over till tomorrow (this
day), in order to give the parties an opportunity of
considering the proposition of his Lordship.
The COURT did not rise till five o'clock.

ROLLS' COURT, DEC. 9.
This being the Seal day, the Court took motions.
WOOD V. HITCHINGS AND OTHERS.—WILL OF THE LATE
JAMES WOOD, ESQ., OF GLOUCESTER.
Sir CHARLES WETHERELL moved in this ease, in
behalf of the plaintiff, Sir Matthew Wood, as one of the
executors, for a reference to one of the Masters of the
Court to appoint a fit and proper person to be a re-
ceiver of the personal estate of the testator, James
Wood. The bill was filed against Edward Hitchings
and others, executors of the instrument or tes-
tament which, the plaintiff, alleged, constituted
Mr. Wood's will, the next of kin, and the Mayor and
Corporation of the city of Gloucester, for a discovery,
and praying that the Percival estate in the hands of
some of the defendants, and all the estates of the tes-
tator, might be secured by the Court, pending the
appeal from the decision of the Prerogative Court to
the Privy Council, until a legal personal representative
of the said James Wood should be duly constituted,
that a proper person might be appointed as receiver.
The Learned Counsel then entered into a short state-
ment of the facts of the case (which have been so often
before the public that it is unnecessary to repeat
them here), and read the terms of the three instru-
ments on which the litigation took place in the
Prerogative Court. He then proceeded to state
that the testator died on the 26th April, 1836, and the
executors named in the first instrument took proper
steps in the Ecclesiastical Court to prove that instru-
ment, but, as was universally the case where there was a
large prize, many persons attempted to be the captors,
and divers next of kin appeared contending there was
no will, others again appeared asserting that there was
no will, but each respectively contending who
was or was not the real next of kin. Those
points being afloat, another captor, or alleged captor,
made his appearance. A codicil made its appear-
ance which certainly came into life in a very extraordi-
nary manner—a penny post letter, sent to a gentleman
named Help, who c:aimed to be one of the next of kin,
enclosing a codicil which ran thus :—" In a codicil to
my will I gave to the Corporation of Gloucester
140,0001. In this I wish my executors would give
60,000/. more to them, for the same purpose as I have be-
fore named." It then gave pretty large legacies to other
parties. The letter enclosing that alleged codicil was
anonymous, and although large bribes, in the shape of
20,0001. or 30,0001., had been offered by advertisements
for the name of the writer of that letter, in order that
all parties interested in the property of this very curious
millionaire might have their rights, the attempt had
!.itlierto been unsuccessful. In that state of things, on
the 4th June, 1836, administration was granted to Mr.
Maddy, pendente lite, who was made a defendant to
this suit. The case underwent a full investiga-
tion in Doctors' Commons, and the result of the
decision of the Learned Judge, Sir Herbert Jenner,
was to declare the whole of the three instruments
void. Supposing that decision to be final, the testator
would die intestate, and the personal property would
fall among the next of kin, but an appeal had been
made against that decision to the Privy Council, and
under these circumstances, he (Sir Charles) had to
move on the part of Alderman Wood for a receiver.
lie apprehended that, in a case of this kind the Court
would take care of the property till the appeal was de-
cided, and appoint a receiver ad interim. The power of
conservation of the property by the Prerogative Court
was only co-extensive with the duration of the ease,
in its jurisdiction, and consequently as sou as that
Court pronounced judgment the administration pen-
dente lite ceased. The Privy Council appointed no
administrator pendente lite—it merely issued an inhi-
bition against the Ecclesiastical Court proceeding
further, and consequently since the jsteigment of Sir
Herbert Jenner the property had been unprotected.
The rule of the Court had been laid down by Lord
Eldon Li several cases, but he would ottly refer to one
case, because, in his opinion, the law was clear upon the
non-existence of any legai person to collect or administer
the property.
The MASTER of the Rous—What is it that now
prevents the Ecclesiastical Court granting adminiatva.
tion to the next of kin ?

Sir clifVt47 W“kiEREU.—The appeal. There ;2:
nn inhibition from the Privy Council.
The ItilksTEß of the RoLLEI-...P:ilen the property is
wholly unprotected.

81; Cimar 'Ty
vv ETHERELL—ExactIy. The lis
71:71-',.ens during which the Prerogative Court granted
protection had ceased—the moment the sentence of

Mr. KIN DERSLEY (with whom was Mr. L. WICRA M)
appeared for the defendant Mr. Hitchings, one of
the next of kin, and opposed the motion. The applica-
tion was made under rather extraordinary circumstances,
and it was surprising to find that out of three executors
one only had thought proper to make this application.
The present notice of motion had been given on the 3d
of August, the day on which the bill was filed. On the
27th of July preceding, a precisely similar bill, verbatna
et literatini, was filed by Sir Matthew Wood before the
Lord Chancellor on the same day, and precisely similar
notice of motion given. But on the Ist of August the
plaintiff obtained an or der dismissing his Bill before the
Lord Chancellor, and on Lim ;,I of August filed iderai-
cally the same bill before pie Master of the Rells.
There was something a little„singular about that. But
a suit had been instituted before the Vice-Chancellor
by Mrs. Goodlake, one of the next of kin, for the pur-
pose of having a receiver appointed ; and, therefore, it
did not require much shrewdness to guess the object of
the course that had been purstred, but which object had
been disappointed. At the time Mr. Wood, the
testator, was taken ill, . Mr. Chadborn was in
London, but on receiving an intimation of Mr.
Wood's illness, he immediately returned to Glou-
cester, and took out of some repository or desk
two papers, and, in the presence of the four executors,
watered them together, put them into an envelope. and
endorsed the envelope as being the will of Mr. James
Wood. The Learned Judge in the Prerogative Court
had expressed his surprise at the attempt made to obtain
probate of such an instrument, sub silentio, and said—
" Circumstanced as the Court is, the Court does feel
that it has been unfairly and improperly treated by the
executors." The executors failed to establish that
paper ; there was no person who had a legal title, and,
therefore, the receiver asked by this motion would have
no means of receiving anything except what the parties
chose to pay to him ; indeed the property of the testator
was either in the hands of the party making the appli-
cation, or in the hands of the Bank, whom, it would
not be denied, was a good protector. The real object
of the bill, which professed to seek for a discovery for
the defendants, was to fish out information which might
assist the plaintiff in endeavouring to establish those
testamentary scrips produced by him.
The MASTER of the ROLLS—Who is in possession
of the leaseholds?
Mr. KINDERSLEY believed the alleged executors.
The MASTER of the RoLLs—The rents will be lost
to every body if there is no one to receive them.
Sir C. WETHERELL—My friend the Alderman wants
to pay his rents.
Mr. KINDERSLEY—He rents a freehold, but we have
so much confidence in him that we think his rent is
safe. But would the appointment of a receiver secure
payment ?
The MASTER of the RoLLs—Do not we find it does
every day ?
Mr. KINDERSLEY—There is nobody in whose name
the receiver can act.
The MASTER of the RoLLs—I should like to know
if there is any case to be found in which the Court re-
fused to appoint a receiver pending a discussion in the
Ecclesiastical Court, on the ground that there was no
legal personal representative in whose name the receiver
could prosecute any proceedings the Court might direct
for the benefit of the estate.
Mr. KINDERSLEY observed that the cases did not
decide the Court would grant a receiver under
any circumstances. No doubt in a simple case
the Court, seeing property could not be protected
otherwise than by the appointment of a receiver,
would interfere ; and he submitted that the
whole of the circumstances which had occurred after
Mr. Wood's death, the proceedings in the Ecclesias-
tical Court, the proceedings in this Court, and
the Vice-Chancellor's, taking them altogether,
were such as would induce his Lordship to say
that he would not, as against those who were
now prima facie interested, namely, the next of kin,
allow the plaintiff to have a receiver ; but that if he
really wanted the property protected, there were other
means of obtaining that protection without applying to
the Court for a receiver.
Mr. PEMBERTON and Mr. SUTTON SHARPE ap-
peared for the Corporation of Gloucester. They could
not understand why the Corpoiation had been made
parties, unless it was that the present suit had been
merely filed in aid of evidence for another Court, the plain-
tiff not having chosen to examine witnesses in the Court
below. Under the 2d and 3d William 4, chap. 92, the
Judicial Committee of the Privy Council had the same
power with respect to property which the Court of
Delegates had ; but in this case the Ecclesiastical
Court having been applied to,* and having the power
to protect the property, the party making the present
application had thought fit to abdicate that jurisdiction,
and to apply to another tribunal, to which the case was
perfectly new. If the property ever required protection
that protection was wanted in the month of April, 1836.
The next of kin who, as the case now stood, were en-
titled to the whole of the property, were satisfied to
leave things in their present state. If it was necessary
for any one to interfere, an administrator could be ap-
pointed, who would receive the rents, and do every thing
that was requisite, not only for the protection of the pro-
perty, but for the beneficial investment of it, should the
parties desire to have it invested. The Learned Counsel
in conclusion contended that it would not be advanta-
geous to any of the parties interested to have a receiver
appointed ; but that, if the property required protection,
that protection could be afforded at the instance of the
Judicial Committee of the Privy Council. The bill in
truth was filed for the collateral object of the appeal,
and for the benefit of any of the parties interested in
the property.
Mr. GRIFFITH RICHARDS opposed the application on
behalf of Mrs. Goodlake, one of the next of kin. The
motion for a receiver would be made before the Vice-
Chancellor on behalf of his client in a suit duly and
properly constituted for the purpose.
Mr. GIRDLESTONE appeared for the defendant,
Edwin Maddy, one of the executors, who did not wish
to interfere in the discussion, but left the case entirely
in the hands of the Court.
Mr. DIXON, on behalf of John Surman, opposed the
application.

Sir CHARLES WETHERELL then replied. He had
been opposed by a very formidable corps of learned
gentlemen. The labouring oar was Mr. Alderman
ilrood, and he (Sir C. Wetherell) as the representa-
tive of the worthy Alderman was the labouring oar in
support of this motion for a receiver, in which labour
it appeared to him that some of those who had opposed
him ought to have been fellow watermen in the same
boat.—( Laughter.) The ground on which the deci-
sion of the Prerogative Court proceeded was the wa-
fering of the two instruments together, but the Learned
Judge had not professed to decide the question whether
the second instrument of the 3d of December might
not be a good will taken separately, though in its con-
joined capacity, being affixed to the paper called
" instructions," it might be invalid. If on ge-
neral principles the plaintiff had a right to a
receiver, the abstract rule of practice must not give
way to a speculation that in another tribunal the judg-
ment of the Ecclesiastical Court may be overruled. It had
been stated that Mr. Chadborn had tacked the two in-
struments together. With that Mr. Alderman Wood
had nothing to do, and Sir Herbert Jenner in delivering
judgment, has observed, " With respect to the fourth
executor, that is Mr. Alderman Wood, he does not ap-
pear to have been conversant of that part of the pro-
ceeding, at least so far as appears on these answers.
He says, that being otherwise occupied, he was totally
ignorant of what was taking place at that time, and that
he knew nothing of it, nor did he suspect anything
of it until the allegation on behalf of the executors
had been sent in in the course of these proceedings.
He is a party entirely exonerated from the slighteA
imputation on that head." Sir Matthew Wood was,
therefore, entirely exculpated from any thing like fraud
Sir Charles Wetherell then proceeded to contend upon
the authority of Atkinson v. Henshaw, decided by Lord
Eldon, and Watkins v. Brent, decided by the present
Lord Chancellor, that supposing the Ecclesiastical Court
could grant administration, that would be na ouster of
the jurisdiction of this Court. The Present, Lord
Chancellor, in Watkins v. Brent, said, " Tnere is no
doubt that, by the rule of this Court, If, the representa-
tive is in contest, and no person 'gas been constituted
executor, the Court will ir:terfet ,
contest, but became *"-„
renot because of the
is no proper person to receive
the rents." 'tie interference of the Court, therefore,
ou
was
a--i.e necessary, of course, although there might be
e
no regal personal representative. That a receiver was
necessary, appeared to be acknowledged by some of the
parties from their havingc, instituted a suit elsewhere for
that purpose, although for some motive or other, not
avowed, they chose to resist this application. He
trusted, however, the Court would accede to it.
The MASTER of the ROLLS—I shall look into this
bill, and the affidavits that have been filed, before I
give my opinion in this case. lam not quite sure that
tthoe otherCourtuOt pinionean ntni ltl theper
mmi
to ti
anyon
I ought not delay giving my
dbowiittb4et eanboiunt the jurisdiction of the Court. I am clear
there is no doubt about the jurisdiction of the Court to
interfere, and that it is not necessary there should be a
person in whose name an action may be brought to
authorise this Court to appoint a receiver. The ques-
tion, in the first place, is whether it is necessary, for the
protection of the interests of all parties concerned, that
they: should be a receiver appointed. Now, if I cor-
rectly understand the statement made here, that
Li the only question in the motion proposed to
be made before the Vice-Chancellor. On the

KERRIDGE V. HESS.
The plaintiff in this action sought to recover for
work and labour done, as Secretary to the Committee
of a proposed Midland Grand Junction Railway, of
which the defendant had been a Director or Cam"
inittee man. It appeared that a railroad from Not-
tingham to London, and joining several of the midland
railways, was proposed in May, 1837, and a Committee
formed in Nottingham for the purpose of carrying it
into effect. Mr. Armstrong was appointed the so-
licitor of the Company in London, with power to form
a Committee, which having been at length done, the
plaintiff applied for and obtained the situation of secretary,
at a salary of either 3001. or 4001. a year. The Committee
in London, remained in existence till January, 18:39, but
it was an entir.t failure, never having been able to dis-
pose of any shares, and, of course, getting no funds in
their hands. The plaintiff during the whole time acted
under the orders of the Committee, and transacted all
their business as secretary. He also claimed 841. as
the expenses incurred by him during a residence of two
months in Nottingham, which he bad undertaken for
the purpose of attending public meetings, and soliciting
influential support for the project in the neighbourhood,
and at the request of the Committee. The plaintiff
had laid out a considerable sum of his own money previous
to his being sent to Nottingham, and he then refused to
make any other advances, and would not proceed to the
country unless he was furnished with funds. A bill for 971.
was then drawn by one Director, accepted by another,
and discounted by a third, from which funds-the plain-
tiff got 371., the remainder being paid to the solicitor,
and 51. being paid to the defendant for his expenses in
attending the public meeting at Nottingham as a Di-
rector. Several letters were put in signed by the de-
fendant, giving directions to the plaintiff as to his con-
duct and proceedings in the country.
For the defendant—Mr. Holmes, the engineer of
the Company, deposed that he recommended the
plaintiff to the situation of secretary. He told him
that all the expenses to be incurred: were to be Paid
out of the funds to be raised from the deposits On
shares, and that none of the Committee men or Di-
rectors were to be personally liable. He agreed to
those terms, and a resolution come to by the local C°lll b
mittee at Nottingham was communicated to him, and Y
him entered into the minute-book of the CompanY• Ttie
book was called for, and the minute read ; it was to the
effect that all the transactions of the Committee sbould
be without personal liability either individually or CO'col-
lectively ; all remuneration and expenses to be derived
from the instalments to be realized from the sale of
shares. It was also proved that the defendant had not
..
become a Committee-man or Director until the sth of
October, 1838, and was therefore, under any circum-
stances, not liable to more than a quarter's salary.
His LORDSHIP left. it to the Jury to say whether the
plaintiff had accepted the situation in the limited manner
stated, in which case, as no funds had been raised from
shares, none of the Directors or Committee-men were
personally liable, and therefore the verdict must be for
the defendant. If they found that the plaintiff had err
tered the situation without any reservation and in Vac
usual manner, then it would be a question for them
what was a reasonable sum for remunerating his ser-
vices and reasonable expenses while in Nottingham.
The Jury almost immediately found a verdict, for the
defendant.

Mr. Jervis was for the plaintiff, and Mr.. 'Hill ap-
peared for the defendant.

COURT OF COMMON PLEAS, Dsc. 9.
ASSIGNEES OF CLARK V. SOUTHWELL.
This was rather an extraordinary case. It was an
action to recover the sum of 3701. fr,im the defendant,
under the following circumstances :--Clark bad en•
tered into business as shoemaker with the defendant, who
had advanced capital, and had taken a warrant of at-
torney for 1,4001. holding it over, to make it available
whenever, the business proving unsuccessful, Clark
should be in danger of insolvency. The business
did fail. And one morning Clark disappeared,
leaving a letter for Southwell—to. the effect that be
was tired of their viljainous phns, which had been err
tered on solely for his, South well's, profit. Southvie!„
took possession of the goods (the stock in trade), and
sold them for 3701., the amount
for which the action
was now brought by the assigne es, under a fiat issued
to three creditors.

Mr. KELLY, with Mr. Hoc.Gms, was for the Oslo'
tiff, and insisted that the co,acealment of this warrant
was evidently fraudulent, and, was dishonest towards the
rest of the creditors, who trusted the bankrupt greatly'
on the security of the stock in trade, which they WO na
idea was thus appropriated.
Mr. PLATT, and Mr. BAnsTow, for the defendant,
contended that he having advanced the capital, had a
right to take security of the stock.,
Verdict for plaintiff.

,AY.)