The Sun.
London, England, 1841-04-08 00:00:00

LAW INTELLIGENCE.

PRIVY COUNCIL, APRIL 7.
WOOD AND OTHERS W. GOODLARE AND HITCHINGS,

The Court opened at a few minutes past ten.
The ATTORNEY-GENERAL resumed his argument on behalf
of the appellant. The Learned Counsel proceeded to read
and comment upon portions of the judgment of Sir Herbert
Jenner. That Learned Judge had laid down the doctrine that
the instructions were superseded by the will. He (the At-
torney-General) contended that the instructions were to be
considered as a will until they had been revoked. There
could not be the least doubt that it was the intention of the
testator to leave his property to the four individuals named in
paper A. It was contended that it was revoked by B. So far
as B was inconsistent with A, that doctrine would hold good,
but no further. By A a joint tenancy was created, by B a
tenancy in common; so far the latter was a revocation of the
former. He submitted, however, that the Learned
Judge was entirely mistaken in the character which he
had given to A. Although it was headed instructions,
its character must be determined by its contents. There were
numerous cases to show that a will remains unrevoked until
another will was executed. The Learned Counsel was pro-
ceeding to refer to several cases in support of this view, when
he was interrupted by an intimation from the Bench that they
were satisfied upon the doctrine. It was said that B had no
operation ; that it was a nullity on account of the uncertainty
as to who should tak r the beneficial interest. If B were a
nullity then A stood unrevoked. The doctrine for which he
contended had been acted upon, not only in the Courts of Com-
mon Law and Equity, but also in the Ecclesiastical Courts.
The Learned Counsel then proceeded to refer to the case of
Eagshawe p. 43, in which, there being five
scripts propounded, Sir John Nicholl pronounced for three of
them, as containing together a will. In this case the Learned
Judge ought to have pronounced for B and A, as containing
together the Will of the decease]. The Learned Counsel then
referred to the case of Forsyth and Jones, 3d Phillimore, 485,
which had been cited against his clients; contending that it was
clearly distineuislsable from the present case. In that case Sir
John INiichoesaid he considered the instructions in some de-
gree ambiguous. Here there could be no doubt as to the in-
tention of the testator. The Learned Counsel then referred
to several other eases on the same point, from which he con-
tended that probate should have been granted of B, and of so
much of A as related to the executions, in order to constitute
a perfect will. The Learned Gentleman then cited the cases of
Molyneux and Molyneux Smith v. Milburn, &holes v. De
Fleur, Hodges and liorsfall, and several o hers, in order to
show that a will, signed according to the Statute of Frauds,
and recognOing another paper, although the latter was not
signed, still the Courts would adopt it as part of the first,
it being imported into it by the recognition. That was
the case in the cause before their Lordships. There was
the testamentary paper appointing the executors; but who
were to be the d-visees ? that was clearly pointed out by
another paper referred to in the instrument signed by the
hand of :he testator. They were to be the executors who were
appointed by that paper. In the very voluminous papers ex-
hibited in the cause no other will had been propounded. The
Learned Judge in the Court below, had in his judgment cited
no cases in support of the law he laid down. He had quoted
no authorities whatever in support of his pcsition. But their
Lordships were not bound by anything. done by him. They
would exercise en independent jurisdietton. They would look
at the law of the case as laid down in the books—at the deci-
sions come to by those who had adorned the bench, and in
doing so lie hail no doubt they would cc•me to the
conclusion that the Learned Judge of the Prerogative
Court had erroneously refused probate to his clients.
Now Sir Herbert Joiner had not referred to one
single authority, or rule, or practice, in support of the decision
which he had pronounced. Although his clients had not proved
all that they had alleged, vet lie contended that they had
proved enough
hearing exactly as if none of the allegations had been made,
which were now complained of. But what were their Lord-
ships to do in the present case? If they came to a similar
decision, it would be tantamount to saying that Mr. Wood had
died intestate. It appeared to him that their Lordships could not
avoid coming to the saute decision as Sir H. Jenner with regard
to the codicil dated July, 1835, and if that were so he
apprehended that the codicil could not be set up in any other
shape by the parties taking interest under it. There was no
instance of such a proceeding in the records of the Ecclesias-
tical Court, and he did not think that such a course could be
sustained on any principle of ecclesiastical or common law. He
should now proceed to consider the various charges that had
been brought against the executors, and he thought he could
show, either that they were wholly unfounded or that they did
not bear at all upon the question their Lordships had to decide,
and could not influence their judgment. One of the charges
was, that there was an attempt on the part of the executors to
evade the payment of the duty, and with regard to that and
many other of these charges of misconduct, lie would observe
that they invariably arose from the admissions of the executors
themselves, and it should be recollected that these admissions
could nut be taken without the accompanying explanations, to
which he should again refer. The next. charge was one
of a very foul nature, and almost amounted to a charge of
murder. It. was alleged that Mr. Wood, the testator, was
extremely ill—that they would not call in a medical
man to see him, and that consequently he died. Now he need
not remind their Lordships that it had been given in evidence
that Alderman Wood arrived on the Tuesday—that he earnestly
entreated to be allowed to call in a medical man, and that he
subsequently went for Mr. Corder, one of the most eminent
medical men in Gloucester, who attended him to his death.
The next. charge referred to the destruction of a document
which had been executed by di:: testator in 1831, and that
charge was founded upon the statements of the executors them-
selves. It had been done at the suggestion of Philpots, who
said that, as it was of no use it might be put in the fire. The
evidence of the executor Osborne as to the document was,
that it contained no demise or bequest of any property
to any party. Another document of the same nature
was destroyed a few days subsequently, and they solemnly
denied that any other papers or documents had been destroyed
or made away with. That was the history cf the transac-
tion, and it amounted to nothing, because if there had been
any fraud intended Mr. Philpots never would have dis-
closed the transaction ; and it was only from his statement
that the other party had any knowledge of it.
Lord LYNDHURST inquired how that act was charged ?
The ATTORNEY-GENERAL said it was charged in a general
way, without assigning any particular object which the par-
ties bad in view. He then read over the evidence given in the
Court below as to the assembling of the executors on the
morning of the day on which Mr. Wood died, and contended
that it was inconsistent in all its facts. He would ask their
Lordships whether, if the executors had been about
the business which was charged against them, would
they have allowed the servants free access to the
room in which they were ? A fac-simile of the document
was made, which seemed to have greatly offended Sir H.
Jenner. Now he (the Attorney-General) remembered being
in a case of forgery at the Central Criminal Court, where Mr.
Baron Parke directed fac-similes of the alleged forged docu-
ment to be furnished to both sides. He was sorry it had been
made without the special leave of the Judge, but surely there
litas no occasion for so much ire.

Lord LYNDII Er itsT—He probably disliked the exhibition of
the fac-similie, as creating a prejudice in the minds of the
witnesses, which would operate on them when they saw the
original. . _ .

The ATTORNEY-GENERAL said, it was not exhibited to
the witnesses. Now, he would ask their Lordships, on con-
sidering the whole of the case, what ground there was for even
a suspicion that there had been a former will. He would then
come to the question of the codicil.
The SOLICITOR-GENERAL said he must interpose here. His
client was with the Attorney-General as appellant against one
portion of the judgment of the Court below ; but, with respect
to the codicil, he was an appellant on his own account. He
claimed the right therefore to open his own case. Having
saved to himself the right to open his own case, and to have a
reply upon that part of the case, he would be happy to hear ail
that his Learned Friend had to say with respect to the codicil.
The ATTORNEY-GENERAL said by analogy to what
took place in the House of Lords on appeals, he
had a perfect right to proceed with respect to the codicil. The
Learned Gentleman then proceeded to read and comment upon
the evidence given in the Court below respecting the hand-
writing of the testator to the codicil in question, and con-
tended that there was a very strong body of evidence of the most
respectable kind against the codicil either being written or
signed by Mr. Wood. He also cited many cases in which it
was laid down that the mere proof of handwriting would not be
held as conclusive. Their Lordships would remember many
cases in which even the clerks of the Bank who signed the
notes had been deceived, even where their own rames had been
forged ; and that during the war papers were plentiful which were
so well counterfeited rs to deceive the Custom-house officers
all over the world. The rule requiring some circumstances
concomitant with the writing was a most wholesome one, and he
hoped would not be departed from on that occasion. His learned
friends supported the Codicil on the ground of the probability of
some or all the bequests. The parties fabricating such a document
would take care to have probability on their side, but let him
ask was that the case here? There was a bequest of 200,0001.
to the Corporation of Gloucester—that was dated in 1835, and
it was in proof that at that time he was very angry, be-
cause he had always been passed over in respect of the office
of Mayor to which he aspired. Ile apprehended that there
was abundant evidence to destroy the probability of the va-
lidity of the evidence. Where an instrument was intended
to be burnt, although it was not destroyed its operation was gone;
and the parties would be in the same po,ition as if it had never
been brought forward. The Learned Counsel said that he
be-
lieving that if he had omitted any important point his Learned
should not occupy any more of the attention of the Court,
Friends would not fail to supply the deficiency.
Mr. PE.MBERTON then proceeded to address the • Court on
to read a in
the same side. The Learned Counsel commenced his address
heee bdi3 nfr . Ilitchings ocument
was aparty,
by reading extracts from the judgment delivered by Sir Her-
some Jfeein.mneerr.
pHreeeeteveads
itolgiesntoprlo,ic
when
Sir F. POLLOCK objected to the reading of the document
for the purpose of influencing the decision of the Court.
The Learned Judges overruled the objection.
Mr. PEMBERTON resumed. The Counsel for Mr. Hitch-
ings had not called in question in the least the fact of the sig-
nature to paper, A being the signature of the testator.
Upon what ground then was that Chadb
Paper questioned? Upon
r
the ground that Mr. on, who wrote that paper,
was beneficially interested under it—if the signa-
ture were good ; if the competency were good ; if
au
ne undue suggested ; it mattered not
o
when he signed the paper, was acquainted with its
faitbing influence
wrote it. It was only necessary to prove that
the testator,
contents, and aware of their effect. The Learned Counsel
then cited the ease of Barrett and Britlin, Ist Vol. of
Curtis, p. 613. In this case there was the most conclusive
testimony of the only fact necessary to be proved, intention to
benefit Mr. Chadborn. The Learned Judge had made the
fact of Mr. Chadhorn being an executor beneficially
interested a ground for looking with suspicion upon
the will. The question was, did B refer to A. He
(Mr. Pemberton) contended that if there were no sig-
nature, no proof whatever—if it were sufficiently established
that B referred to A, then A was as completely established as if
B itself had been established by two witnesses. Upon this part
of the case he must protest most strongly against the deci-
sion of the i earned Judge. It was in contradiction of the
principle universally acted upon. The rule was that you must
have a distinct reference to some paper or writing;
von must have a paper already produced which tallied with
that description, and then if there were no other paper or
writing which also tallied with that description, the reference
was sufficient. That was the principle acted upon in all the
cases which had been cited by his Learned Friend the Attorney-
General.
The Learned Counsel was proceeding to refer to the case of
Wood and Wood, Ist Phillimore, 357, when it being Four
o'Clock the Court adjourned the further hearing of the argu-
ment until to-morrow.

COURT OF BANKRUPTCY, Arlin 6.
(Before Mr. Commissioner FONBLANQUE.)
IN THE IkikTTER, or KEASLEY, BItCIHERS.
This being the day fixed for the final examination of the
bankrupts, who carried on business, in Bermondsey, as tan-

tiers, a number of fresh proofs were to-day admitted without
any opposition.
A creditor claimed to prove upon the joint acceptance of the
bankrupts for a debt incurred on account of the 7'ablet weekly
newspaper, of which, however, only Mr. 'Thomas Beasley was
the "registered proprietor."—Admitted.
Mr. Lucas, the principal editor and manager of the 7aslet,
claimed to prove against the joint estate for the full amount of
a sum &al to him for acting in those capacities.
Mr. Commissioner FONBLANQUE—Under what denomina-
tion do you seek to prove ?
The claimant—As a servant, I suppose, for wages and for
work and labour done. Commercial travellers, I believe, have
been allowed to prove in full.
Mr. Commissioner FONELANQUE--Commercial travellers,
not solely employed by one person, are not allowed to prove
in full ; and, in your case, you might have employed your
leisure time otherwise than in your literary labours for this
newspaper.
The claimant—l have kept the accounts as well ; and I also
had to superintend the general management.
Mr. Commissioner FONBLANQUE—But the keeping the ac-
counts was only incidental to your literary labour?
'I he claimant—That service was actually demanded of me.
Mr. Commissioner FONBLANQLTE—And that still less makes
you a " clerk" or a " servant."
The elaimant—This also is a business in which I might have
become a bankrupt.
The Learned COMMISSIONER—DecidedIy not; you can
prove against the separate estate of Thomas Beasley. yI
would
give a liberal construction to the clause of the Act to which
you refer; but I am also ruled by another clause, to construe
the Act for the " general benefit of the creditors."

Mr. Lucas-1 at told, your Honour, that in the recent case
of the proprietors of the Public Ledger, that they were made
bankrupts.
The Learned COMMISSIONEIt-NOt as the proprietors and
literary conductors of a newspaper ; but if, to these avocations,
they added the business of general printers for others, then
they might be made bankrupts in the same way as attorneys,
being money scriveners, arc, in the latter capacity, made
bankrupts.
Two other literary gentlemen also sought to prove for the
full amount of their re=pective demands, but were inf.rmed
by the Learned Commissioner that they could only be allowed
to prove against the separate estate of the registered pro-
prietor of that journal.
Another claimant (Mr. Staff) sought to prove for seventy-
five guineas, which be had expended in roasting a bullock for
the bankrupts, and which they distributed to their workmen in
commemoration of the marriage of our most gracious Queen.
One of the Trado Assignees said that the elaimar.t had
charged 101. for pepper and salt upon that occasion.—Claim
admitted.

The Learned Commissioner asked what course was now in-
tended to be pursued and
The Official Assignee (Mr. Pennell) answered that there
was no objection to the bankrupts passing their final examina-
tion. The Trade Assignees concurred, and no creditor having
made any objection, the bankrupts answered the usual interro-
gatorieF, and were declared to have passed their final examination.

APRIL -7.

T.S/ THE MATTER OF MICHAEL STEWART WALLACE..

This day was appointed for auditing the accounts under a
fiat in this Court, of the estate of Michael Stetcart Wallace,
one of the parties tried at the late Central Criminal Court, and
sentenced to transportation for the loss of the ship Dryad.
Mr. Johnson, the official assignee, was engaged the whole
morning in preparing the accounts, and a draft of the available
assess, for the approval of the Commissioner, previous to the
appointment of a day for the first dividend.

INSOLVENT DEBTORS' COURT, APRIL 6.
Michael Williams applied to be discharged on bail.
thln the course of the case the Chief Commissioner complained
cat one of the documents relating to the application was in-
omplete, and handed it down twice or thrice to the attorney,
and in a peremptory manner asked whether it was correct?
It was intimated that the attorney had had but little busi-
ness in the Court. The Commissioner continued in the same
strain of interrogation.
Mr. CaEsswELL rose and said he believed that the present
was the first ease the attorney had had in the Court ; and he
thought some excuse should be made for him. " And (added
the Learned Gentleman) he is no doubt intimidated by your
mode of addressing him."
Chief COMMISSIONER (with warmth)—"Upon my word,
Sir, I am surprised, I am amazingly surprised, that you or any
gentleman of the bar should interfere."
Mr. CRESSWELL—I shall say no more—
CHIEF COMMISSIONER—You ought not, nor any gentle-
man, to interfere, or to make excuses for the ignorance of
persons.
Mr. CRESSWELI (excited)—l never had a rebuke from the
Court before, and I have been here since 1827. I thought it
my duty to state that this was the first ease—
'The CHIEF COMMISSIONER said he should not hare in-
terfered.
Mt. CRESSVVELL—I thought it my duty:
The CHIEF COMMISSIONER.—CertainIy not, Sir. I am
quite surprised at you or any person interfering with the
Court.
The matter dropped. The bail were accepted.
(Before Mr. Commissioner LAw. )
IN THE MATTER OF SIR THOMAS S. M. CHAMPNETS, BART.
This case again occupied Mr. Commissioner Law the whole
day on the proof of debts, before the declaration of a divi-
dend. The investigation has brought to light some extraor-
dinary disclosures on " bill transactions," the means adopted
to raise money at great sacrifices, and the sale of property in
some instances at one third of the sum charged. The Learned
Commissioner has on his return from Circuit resumed the
inquiry, and, from the able and searching manner which Mr,
Commissioner Law has applied to the affairs, it is expected
that the first dividend wilt be as much as 6s. in the pound.
The matter, it is supposed, will be concluded in a few days.
( Before Mr. Commissioner REYNOLDS.)
IN THE MATTER OF RICHARD COOKE.
The insolvent in this case applied to be discharged
under the benefit of the Act. He resided at No. 1, Bath-
street, City-road, whore he carried on business as an apo-
thecary and druggist.
It appeared that, in the year 1832, he borrowed from
his mother, Mrs. Mary Cooke, the sum of 2001., to secure
the repayment of which a warrant of attorney was exe-
cuted to her. With this money he commenced business in
the above premises, and continued until 1837, when,
meeting with some difficulties, he borrowed various sums
of money, among which was 140/. from a person named
Pursden, who got the lease of the house as security. In
March, 1840, becoming still further embarrassed, Mrs.
Cooke caused the power of attorney to be put in f irce
against his property, and the lease, good-will, and fixtures
being sold fur 3001., she received 160/. in part payment of
her demand, and the balance was given to Mr. Pursden,
who then handed the lease over to the new purchaser.
The insolvent being opposed by the detaining creditor
in person, Mrs. Cooke was called, and subjected to a very
strict cross-examination by the Commissioner, to establish
the validity, or otherwise, of the warrant of attorney.
She stated that she was seventy-three years of age, and
having advanced all she possessed in the world to set her
son up in business, if other creditors took precedence of
her, sbe would have no resource left but to seek refuge in
a workhouse.
Mr. Commissioner REYNOLDS—H,W many persons di:l
the insolvent's family consist of ? Witness—A I.dy
named Cannon and her two children lodged in the house
with us.
COMMISSIONER—Who is Mrs. Cannon ? Witness (after
some hesitation)— I don't know; she is at present in York-
shire ; she used to pay 120. a-week for her lodgings.
CONIMISSIONRR—I don't see this sum entered in the
schedule.
Mr. WOODRUFFE said ho WAS instructed to state that
the insolvent cohabited with the female alluded to, hut
being in practice as a medical man it was necessary that
appearances should be kept up ; their intimacy was there-
fore kept a secret from even Mrs. Cooke, and Mrs. Can-
non lived in the Louse as a lodger, the insolvent giving
her 123. every week to pay to the old la iy as rent, that
she might not be aware of her real character. The
Learned Gentleman then contended at length that the
di content under which the insolvents property was seized
was bona fide, and net for the purpose of excluding the
other numerous creditors.
Mr. Commissioner REYNOLDS commented on the facts
of the case, and ordered the insolvent to be remanded ler
six inonthe.