The Sun.
London, England, 1812-06-05 00:00:00

LAW REPOR r:

PREROGATIVE COURT', DOCTORS' CO:OWNS.

GARNHAM V. CLARKE AND KING.

This '.`as a proceeding- relative to the validity
of the will of Benjamin Garai-oin, a man of rather
singular charaCter, who, by selling gingerbread
about the Street's; had contrived to amass consi-
derable property.• Two testamentary papers, each
of them asserted to be the will of the deceased,
formed the subject in question, the -one dated the
6th of October, 1810, principally in favbur of his
wife ; and the other, dated the 10th of October
following,, favour of Messrs. ChaS.
Lewan Clarke, and Thomas King, two of his ac-
quaintances., •
In support of the first will, evidence wassad:
duced to prove the testator's- regard for his wife,
and his testamentary intention towards her ; that
Mr. Clarke having, by incessant importunity, per-.
suaded hitiatb make a will, on the Ist of OA°-
her, 1810'; produced him one ready prepared for
the-purpose,' on his representation alone,
that it was conformable to' his intentions in fa-
vour of his wife, he regularly-executed, but of-•
terwards suspecting he had been iMposed upon,
he 'sent for a professional man to read it over, and
explain it to him ; When his sunlicions being con-
firmed, he immediately caneelie(j. it, and executed
the one' dated the 6th October, in favour of his
wife ; that on the 13th of October following, he, '
in a fit of insanity, cut his throat, and -maogled
himself in other parts of his bOdy,' and *as taken
to St: BartholinneW's Hospital, Whither he Was
followed by the iMpOrtnnity of Mr. Clarke ; who
on the 16th, about three,houri before his death;
when ,in great
.agony, -and in a state of utter in-
capacity, procured_ his signattire to another will,
almo*w(olly in favour of himself and King, the
.vali ail!: of which Was now disputecton that ground.
A Coroner's Inquest afterwards satupon the body,
and-a-I‘erdict of Lunacy Was returned ; and it was
Contended, that the evidence fully prdvekthese
faCts ; that the case of the adverse party was one
originating in fraud, and carried on by imPer=
thrifty ; - and that theft- Witnesses, in their eaget,.
ness to speak Up to its exigeneles, had gone to(-3
far, and completely overturned it; that the_second
will must therefore be'
.prc.mouuced-agairist, and
the first deelared valid; with costs. - ,
In Support of the latter will, Messrs. Clarke
and King's -e'vidence had for its object to shew,
that the testator disliked•his wife, and lived un-
happily with her, and that he had a great -regard
for Clarke and King that though he was a luna-
tic. when lie cut his throat,. be.hatilucid intervals
-afterwards, and that it was in one of them that lie •
• made tTie latter which was conformable to
his-expressions of dislike for his wife, and regard
_for Clarke and. Xing ; . and it was contended, that
the evidence of the Meclical Gentlemen of the
Hospital, *:-to -insanity, was 'founded- on too
slight an observation of the ,deceased,,to shake the
positive testimony . that supported -these facts,'
which Were-sufficient to establish the latter will.

_ .
Sir J. NicHoLL recapitulated the evidence,
and observed, that the deceased appeared•to have
a regard for all the parties'; but to be a person of
such a-fickle, irritable disposition, as to re.ncler a
dependence on that regard very precarious. . He
was of opinion, that the evidence of the medical
gentlemen was not such as to convince the COurt
of the Testator's utter incapacity from the time of
his laying violent hands upon.hivaself to his death ;
and the other evidence proved such expressions
of his-, as demonstrated that he enjoyed lucid in-
tervals. He then comlnented upon the evidence
of the patients in the hospital„ as to the execu-
tion of the latter will, for which purpose the de-
ceased was raised up in his bed ; and thought it
fully sufficient; and that it was not effected by
the exceptions taken to it. He, therefore,,pro-
nortnced for -the - validity of the latter will, but
without costs. .

/COURT OF KING'S BENCH, 'luxe 3.

NI TALE V. LEDGER.

Mr: SCARLETT inoi,ed to set 'aside an award, in
an arbitration, in the. submission to which it Was
provided, that if the Arbitrators. could not i.agree,
they'shotild choose a third person uMPire, whose
unipirdge should be. final. The Arbitrators, in-
stead of concurring in the nomination, tossed up
whiCh of two Othes shoUld stand ;- and upon the
authority of the case of Harris v. Mitchell, 2 Ver-
non 185, this was a sufficient cause to set aside the
award—the Master of the, Rolls saying, in that
case, that an election; or choice, was an act that
depended, on the will and understanding ; but the
arbitrators followed neither in that case ; and it
was distrusting; Of God's PrOvidence to leave
matters to chance. In this case each of the arbi-:
trators objected to the Umpire named by the
other, and tossed up Which nomination should
prevail: _ _

Lord ELLENBOROUGH refused the motion, as it
did not impeach the umpire particularly, and as the
arbitrators did not toss up which should choose.
ills Lordship had seen lots drawtt for an arbitra-
tor at the bar and all juries were, cliwn by
ballot, the pannel first consisting of all probi et le-
gales homilies. •
This decision completely-overrules the case in
Vernon, which is exactly in point; and the (litter-
ence between tossing up which shall choose, and
which choice shall prevail, does not seem to 'be
very great. .
RAPIER A..'CD.OTHERS V. LORD iiILSINGTON..

This was an action brouglft to recover the sum
of 301. ; the amount of a:1)M ofex.change, drawn
by the defendant on the house of Childs and-Com-
pany, which had been cashed by the plaintiffs,
together with , the interest which had accrued
thereon. •