The Sun.
London, England, 1822-04-29 00:00:00

COURT OF COMMON PLEAS, APRIL 27.

HERIOT ON THE HORSE SMOLENSKO.-NOVEL AND
IMPORTANT CASE.

Mr. Serjeant PELL said, that the plaintiff in this case was
Nathaniel Garland, Esq., and the defendants Joseph Jekyl and
Thomas Cunningham, Esqrs., trustees under the willnf the
late Sir Charles Bunbury, Bart. The action was brought by
the plaintiff as, Lord of the Manor of Parkhall, Essex, to re-
cover a considerable gu m of money, the produce of horses sold
at Tattersall's, the property of the late Sir Charles Bunbury,
in right of his Lordship, as heriots for a copyhold estate, in
which Sir Charles had a life interest. The copyhold estate
held by the late Sir C. Bunbury was a very small one, and had
in consequence of the form of •transmission once addpted be-
tween one sister and another, been made divisible into four-
teen separate parts, and the real querstion was, whether thejord
of the manor did not thereby, upon the death of the holder's
life-interest, become entitled, not to one heriot, according to
the original form of the copyhold, but to fourteen, in conse-
quence of its fourteen subsequent divisibilities. Sir C. Bun-
bury, it was well known, was a gentleman, who kept up a
very large and valuable stud of horses. At the time of his death,
he had 22 valuable horses at his grazing farm of Barton, in
Suffolk ; and, he had besides a most valuable race-horse, called
Smolensk°, who was in the care of a gentleman in the north
of England. Smolensko, with 13 other horses, were sold at
Tattersall's after the death of Sir Charles ; the racer brought
1,300 guineas, and an action was brought by the Lord of the
Manor to recover the produce of that sale, in virtue of his
right to the 14 heriots. The Jury found a verdict for the plain-
tiff, excluding the value of Smolensko ; and his present_appli-
canon was for a new trial, on the ground that the exclusion of
that horse from the amount was against the evidence upon
which alone the Jury were bound to decide. In making this
application he was perfectly aware that the Court would, from
the nature of the claim, extend to him no relief, unless the de-
mand was clearly imperative in law, and such as no private
consideration could evade. The special case now before the
Court was, whether or not Smolensko ought, according to the
evidence, to have been included for the plaintiffas one of the 14
horses to which he was entitled as heriot. He knew that it was ex-
tremely hard upon a gentleman who, in ignorance of law, be-
came possessed of a small copyhold property not worth more
than 2001. or 3001., to be subjc.;t, in a claim of heriot, toa demand,
exceeding by many hundreds of pounds the whole value of the
copyhold in virtue of which the heriot was made. Then to
consider the nature of the case. The Jury found a special
verdict in these words: " A verdict for the plaintiff' for the pro-
duce of as many heriots as the Court thought he was entitled
to, from the farm of Barton, in Suffolk, because Herries, when
he went to look, said he had seen enough there." This Herries
was the messenger sent by the Lord of the Manor, after the
death of Sir Charles Bunbury, to inquire into his stud. When
he went he saw the head groom, who gave him an account of the
horses, and he reduced this account to writing in a list, at the
head of which was Smolensko, whom the groom told him was,
then (and had been for two months before Sir Charles's death)
in the care of Dr. Clarke, at Ferry-bridge, in Yorkshire.
Herries was then shown twenty-two other horses at Barton ;
and after this, he said, "he had seen enough," words which,
it was clear, induced the decision of the Jury, but entirely
owing to a misapplication of their intended meaning by the
messenger. It was important for the Court to bear in mind
that the messenger Merely went over to inquire respecting
the horses, with the view of ascertaining the nature of the
roperty on which the heriot was to fall, and not at the time
for the purpose of making any particular claim, and the Lord
'Chief Justice left it for the Jury to say whether, according to
that evidence, it was intended the Lord of the Manor should
make his claim for heriots upon fourteen out of the twenty two.
horses at Barton, or to include in his claim Smolensko, who
was then away; and the Jury found, as he (the Learned
Serjeant) had mentioned, upon their understanding of the
words of the messenger, who, after seeing the twenty-two horses
at Barton, said he had seen enough. Ire thought it quite clear
that the Jury were in this case actuated by a sense of the amount
of the value of Smolensko, and had decided in consequence of
the sum, in a manner in which they would not have done in the
case of any other species of right.
Mr. Justice PAM{ inquired for what purpose did it appear
on the trial that Herries went to the farm ?

Mr. Justice RICHARLISON—" Did he go to make a particu-
lar claim of heriot, and did he fix upon any. specific 14 horses ?"
Nlr. Serjeant YELL replied in the negative, and said that he
merely went to ascertain what hordes were there, preparatory
to making the claim of heriot, and he put down the name of Smo-
lensko at the head of his list. He was, as it were, the fore
horse of the team, and the Jury had manifestly acted under a
mistake when they supposed he had foregone his claim upon
that valuable horse.,

Mr. Justice BURItOUGH expressed a strong opinion against
granting the rule.
The LORD Crum' JUSTICE remarked, that the only ques-
ticn now was, whether there was sufficient apparent reason to
suppose a mis-finding of the Jury, to open a re-consideration
of the case ? The point was not whether the demand was
odious, but if it was attainable at law.
The Court, after consulting for a short time, granted Mr.
Serjeant PELL a rule to shew cause.

CONSISTORY COURT, APRIL 27.
THE 3IARQUIS OF DONEGAL AGAINST ELIZABETH MAY,
FALSELY STYLED MARCHIONESS OF DONEGAL.

In this case, it will be remembered, the Hon. A. Chichester,
who had been cited to see proceedings, appeared under protest ;
and this day
Sir CHRISTOPHER ROBINSON, the Judge, proceeded to de-
liver his sentence upon this intervening question. Mr. Chi-
chester, who had been cited, had protested against the citation
on two grounds, which principally regarded the practice of tho
Court, and had prayed to be dismissed from the suit. The first
objection of Mr. Chichester was this—that he was not a princi.,
pal in the cause ; but being the nephew only of Lord Donegal,
he had been unduly cited ; and it was submitted that there
was no precedent in the practice of the Court for constituting
him a party to it. The second ground of objection was, that
as Mr. Chichester was not competent to have originated this
suit, he ought not now to be made a party to it. With respect
to the first objection, it might be perfectly true that there
was no exact precedent for citing a party who was not a
principal to see proceedings ; but it did not therefore follow
that this Court had no jurisdiction to do so. In the Court
of Chancery it very frequently happened that persons who
were not parties in a cause originally, were yet compelled
to come in, where the interests of right and equity required
their intervention ; but the rule was, that no person could
be bound by a decree of that Court, who was not affected
by the decision which it came to, in such cases : and this was
a matter which had been discussed at consideiable length in
" the Duchess of Kingston's" celebrated case. In the argu-
ment on the case in question, several others were referred to,
and among those was the case of " Gertrude Brown." Her
husband was stated to have been already a married man ; and
it was finally held in that instance, that the interest of another
party might be so affected by the nullity of a marriage between
the principals in a cause, as to make the other party a prin-
cipal likewise. With respect to the right and competency of
Mr. Chichester to have proceeded originally in the present
cause, that, the learned Judge said, was a very serious and
delicate question ; and one upon which he thought it unneces-
sary, and which was indeed of too great moment, to decide
incidentally. In.the Duchess of Kingston's cause, " Maynard
and Asperne," in-the Commissary Court of Surrey, was also
referred to : but that established much the same principle as the
preceding case, and on these grounds the Learned Judge de-
clared he did not think Mr. Chichester's protest could be esta-
blished. The Court, therefore, overruled the protest, and
assigned him to appear absolutely. (The original suit, which
is for nullity of marriage, is yetundecided.)

A tenant of a gallant Baronet, residing near
Bury, lately applied to his landlord to inform him that he could
go on no longer, and wished the latter to enter upon the premises
and pay, himself for two years' rent which were then due. The
landlord insisted that he should not leave his farm ; gave him
a receipt in full for his rent ; and reduced it, in future, to 20s.
an acre !

Sheweth—That since the establishment of Independent Go-
vernments in the countries in South America, which were foi-
merly under the dominion of Spain, an extensive trade has
been carried on with them from this country, either directly, or
through the medium of other places.
That this valuable trade which, with due encouragement and
protection, may become of much greater importance, has been
interrupted, and (according to the declaration of Mr. Zea, the
Minister deputed to the Powers of Europe by the Government
of Columbia) is likely to be lost, or subject to serious disadvan-
tage, unless timely measures be taken by his Majesty's Govern-
ment, to place the commercial intercourse between the United
Kingdom and those countries upon such a footing, as will be
conformable to those regulations which they appear to have
adopted as the ink of their Government in that respect.
That the principle of those regulations appears to be, to
admit into their ports the ships and merchandize of nations,
which recognise and admit the fags and merchandize of their
respective countries.

„
That your Memorialists therefore beg to submit for the con-
sideration of your Lordships, whether, in perfect consistency
with the spirit of the Navigation Laws, the letter of them may
not be so far relaxed, as to admit vessels belonging to the
several newly established countries in South America, to trade,
as such, at the several ports of this kingdom, in the same man-
ner as ships of the United States and Brazil.
That unless the ships of those countries be admitted to a par-
ticipation in that advantage, your memorialists are apprehensive
that foreign countries, especially the United States (whose re-
gulations are governed by the rule adopted by the said newly
established Governments) availing themselves 'of the opportu-
nity which any hesitation on the part of this nation might afford,
will secure to themselves most important advantages, at the ex-
pence of the shipping, commercial, and manufacturing interests
of this kingdom. ,
Your Memorialists therefore entreat, that the subject may
engage your Lordship? attention, and that such measures may
be timely adopted to secure the advantages of a direct and ex-
tensive commercial intercourse with the United Kingdom,
which are offered in the change of the Government of the
countries before mentioned, as to your Lordships shall seem
meet and expedient, for extending and improving the com-
merce of this empire.—And your Memorialists will ever pray.
London, April 23, 1822.

Baring, Brothers, and Co.
Richards, Mackintosh, Law,

and Co.
Bazett, Farquhar y Crawford,

and Co.
Reid, Irving, and Co.
Findlay, Bannatyne, and Co.
Campbell, Bowden and Co.
Smith, Inglis, and Co.
Paxton, Cockerell, Train, and
Co.
W. and T. Raikes, and Co.
Fletcher, Alexander, and Co.
Bainbridges and Brown.
Palmer, 'Wilson, and Co.

Frederick Huth and Co.
G. W. and S. Hibbert.

Jos. M arryat and Son.
Hallett, Brothers, and Co.
Richard Jaffray.
R. and B. Brown and Co..
Dickson, Pizey, and Co.
G. I. and G. R,anking,
Barclay, Brothers, and Co.
Anthony Gibbs and Sons.
G. and J. Brown.

Buckles, Bagstcr, and Co.
Wilson and Blanshard.
John Jacob.

Copy of a Note from Messrs. Coca and Witi.ouGHirr, to
the different Firms which subscribed the Memorial to. the

Privy Council.

GENTLEMEN,--We have the pleasure to acquaint you, that
the Lords of the Council have decided favourably on the appli-
cation for admitting .to entry in this country the ships of the
Independent Governments established in the Spanish part of
South America, conformable to the petition presented to their
Lordships on the 23d instant.
We have the honour to be, Gentlemen,
Your most obedient Servants,
(Signed) COCK and WILLOUGHBY.
33, New Broad-street, 27th April, 1822.