The Sun.
London, England, 1841-05-28 00:00:00

WOOD V MOREWOOD,

This was a case which came on for trial at the Derby As-
sizes of Michaelmas term last, before Chief Justice Tindal,
when a verdict was had for the plaintiff.
The Solicitor-General subsequently obtained a rule for a new
trial, and Mr. Hill was now heard on the part of the plaintiff,
to show cause why the rule for a new trial shou'd be set aside.
After the Chief Justice had read his notes of the trial, Mr.
Hue said that he would shortly state to the Court the sub-
stance of the affidavits on which his Learned Friend, the So-
licitor-General had obtained. on the ground of surprise, the
rule for a new trial, to set aside which he (Mr. Hill) now ap-
plied to the Court. Those affidavits stated that there was a
rumour abroad from the commencement of this controversy,
between Wood and Morewood, that the claimed lands and
minerals never formed a part of the Zouch estate ; and in order
to test the accuracy of that report, the defendant, Morewood,
filed a bill of discovery, and that the answer put into that bill
led the defendants astray, and confirmed them that the rumour
was correct, and that they did not, in consequence, investigate
the title farther back than the 39th year of the reign of
Queen Elizabeth. The plaintiff said by his replication that
the lands in question did not pass by the settlement of the
39th of Elizabeth, the defendant, on the contrary, alleging
that they did so pass. That was the defendant's case on the
ground of surprise—a ground which he ( Mr. H.) would show
did not or could not exist at all. The fifth pl;;a stated that
Sir John Zouch was seised in fee of certain lands and minerals
that in the 39th year of Elizabeth he levied a fine on the said
lands (which were mentioned in very general terms), that a re-
covery was suffered, and that the minerals were settled for the
use of Sir John Zouch in remainder to his son. At a subse-
quent period, in the reign of James the First, the son con-
veyed the minerals to Alorewood, and the question then was,
did those lands pass under the fine and recovery of 39th of Eliza-
beth. The Learned Counsel went on to show that
the answer to those affidavits did not or could not mislead the
defendants. The answer was a true one, and would have led
any reasonable person to the belief that they (the plaintiffs)
claimed those lands as being once a portion of the Zouch estate,
and so far were the defendants from being ignorant that Zouch
was seised in fee, that the del ndants themselves mentioned
that that Zouch, afterwards Sir John Zouch, was
seised in fee in the 39th year of Elizabeth; there was then, he
contended, nothing to complain of in the answer put in by the
plaintiff to the bill of discovery filed by Morewood, and con-
sequently the ground of surprise could not be sustained.
Their Lordships were applied to on the ground of surprise,
which surprise consisted of two facts, first, that new facts had
been brought out, and second, that in .consequence of their ig-
•norance they had pleaded incongruously to their title. 'I he
plaintiffs ought to have given up the order of reference; they ought
not to have amended it, but they ought to have given notice
of their intention to move for a new trial. Sir John Zouch
in the 30th of Elizabeth, passed all the lands :in his possession
to Adam flare. How, then, could the same lands pass by
the fine and recovery in the 39th of Elizabeth ? Yet that was
the only ground urn which his Learned Friend could
stand before the Court. Under that fine add recovery
he contended that the minerals did not pass. But suppose his
Learned Friend were to give up that ground, and take the sale
made by John Zouch in the 13th James I. ; but that would do
him no further good than the other. They were in pos-
session of proceedings in the Court of Chancery of the 41st of
Elizabeth, by which it appeared that Mary Zouch, in whom the
property was, after the death of Sir John, was still alive, although
the clients of his Learned Friend had killed her long before. He
hail been so completely taken by surprise at the trial that he
had made no struggle against the case as it appeared, although
he had expressly reserved to himself the right of appealing to
their Lordships hereafter, becau,e he felt convinced that
there must be evidence in existence which would enable
him to dispute the validity .of the deed, which
on the trial hail so completely taken them by surpri,e,
and of the existence of which he had been unaware. Under
these circumstances, seeing the defendant had been so com-
pletely taken by surprise, he trusted that on payment of costs
the Court would grant a new trial. • 11, ith regard to the refer-
ence at the first meeting, the plaintiff hart been made distinctly
• aware of the intention of the defendant to make the present
application to the Court, and no time had been:ost in so doing.
Their Lordships having consulted together,
Lord Chief Justice TYNDAL said the only question for the
Court to determine was whether the defendant had really been
taken by surprise at the trial by the production of the
deed in question. In cases where a party was really taken by
surpri.e, where like the present a large amount of property was
involved, and where nice points of conveyancing might arise,
the Cturt felt itse'f bound to interpose its authority to enable
parties to submit their case fairly to a Jury, and to remove
the case afterwards into a Court of Error, if such a proceeding
should be thought expedient. Now it did appear to hint from what
passed at t he trial that the whole conduct of the case was a surprise
upon the defendant, and that he had no reason to expect that
any deed would be produced, and that therefore the defendant.
was entitled to have an opportunity of laying his case before a
Jury in relation to a document so important to the rights
of property. He was therefore of opinion that the rule for
a new trial must be made absolu e on payment of costs.
At the same time he thought no blame attached to the plaintiff
for withholding the deed from the knowiedge of the defendant,
as he had a perfect right to do so.
Mr. HILL said that he thought the last few words which had
fallen front his Lordship w ould afford the plaintiff more pleasure
than the decision of the Court would cause him pain, for he
felt most acutely the imputations attempted to be cast
on him in the affidavits on the other side for withholding
the deed. As a new trial had been granted. he hoped
their Lordships would impose terms on the defendant to
make him admit the long proofs which were tendered
at the trial as to the identity of the land in question.
The SOLICITOIt-GENERAL said he had no wish to raise any
doubt where none existed, but if he recollected rightly he was
not quite satisfied at the trial as to the accuracy of the proof.
Mr. HILL again urged that the admission should be made
part of the terms on which a new trial should be granted.
The :iOLICITOR..GENERAL said that from the anxiety dis-
played by the other side, there was evidently something to be
made by the adm•ssion. However, he was in the banes of the
Court. He had no objection to the admission of alldocuments.
Mr. HILL said that the other party had had since August to
consider the matter, and this was the first time that such an
insufficiency had been hinted at. The proof required was ex-
ceedingly long, as it related to lands severed from an estate in
the time of Queen Elizabeth, which then had been of no great
value, butwhich now from the mineralswhich had been discovered
under the land became of immense value, and one of the wit-
nesses who had proved the boundary of the • land in question,
had died since the trial.

The SOLICITOR-GENERAL asked until Saturday to consi-
der the question. Whatever their Lordships thought right he
would do.

INlr. HILL hoped the Court would give him the costs of the
reference.

The SOLICITOR-GENERAL objected. They had on the
first meeting given distinct notice of the defendant's intention
to appeal to the Court, and if the plaintiff after that chose to
go on it must be at his own risk.
Lord Chief Justice TY NDA L suggested that that question
had better he left to the Master, to which suggestion both par-
ties acceded.

With respect to the amended plea it was ordered that the de-
endant should put in his amended plea in a fortnight, and that
it should he a plea issuable so as to bring on the case fur trial
at the nest assizes.

SHIPPING INTELLIGENCE.

(LLOYD'S.)

LONDON, MAN' 27.—Wind this day at noon, E. to S.E.
variable, fine clear weather.
DEAL, MAY 26.—Wind N.E., moderate.—Arrived from
the River and sailed the Fox-hound, for the South Seas ; Re-
pulse, Bombay ; Northumberland, Madras ; Centenary, Mon-
treal.

LIVERPOOL, MAY 26.—Wind S.E., moderate.—Arrived
the Sarah, from Savannah ; Corinthian, Zante. Sailed the
Gulnare, for Hobart Town ; Ann, Bombay ; Columbine,
Monte Video; Isabel, Antigua; Columbus, Rio Janeiro;
Virginia and Independence, New York ' • Manley, Halifax ;
China, Quebec; Clementina, Ancona; Trinity yacht, Gib-
raltar. Arrived off, the Notion.

WIVZNHOE, MAY 26.—The Alarm, from Hamburgh to
London, was on the Gunfleet Sand yesterday.
DOVER, MAY 26.—The Maria, from Ipswich to Liverpool,
was on shore on the Goodwin Sands last light, crew saved.
RAMSGATE, MAY 26. —The Ellison, from London to Sierra
Leone, is on shore on the Goodwin Sands, with mizen..mast
cut away, and loss of anchors and cables.
PORTSMOUTH, MAY 26.—Wind N.E. to S.S.E.—Arrived
the Wolga, Turner, from Havannah, for Amsterdam. Sailed
her Maiesty's ship Reindeer, for Gibraltar.
COWES, MAY 26.—Arrived the Lelbarn, Clark, Matanzas.
SOUTHAMPTON, MAY 24.—Arrived the Maria, Christiania.
PLYMOUTH, MAY 26.—Sailed the Mary, for Quebec ;
Forth, Sydney, Now South Wales : Brothers, ditto. The
Eleanor, from Arklow, got on the Breakwater, during a tre-.
mendous squall, but is expected off after discharging part of
her cargo.
FALMOUTH, MAY 24.—Wind variable.—Arrived off the
Ann, Johnstone, from Trinidad. Sailed the Rollo, Labrador.
DUBLIN, MAY 2.s.—Arrived the Garonne, Richardson,
from Antigua; Wanderer, Robeson. Trinidad.
CORK, MAY 24.—Arrived the Elizabeth, Grunmer, from
Liverpool, for St. John's, New Brunswick.
KINSALE, MAY 23.—Sailed the Shannon, Collings, for
Prince Edward's Island,

_
TORY LIES.
TO THE EDITOR OF THE SUN. ,
Sin,—The Tory cause must needs be a very WI,
when the party deem it necessary, in order to paid
up, to have recourse to the most barefaced and
mis-statements, or rather I should say, atrocious false'_
hoods, as daily appear in their Journals, both morning
and evening, by which their country friends, who lit"
no means of ascertaining the real state of the Cas?,,„,-*'"
so constantly misled. As an instance, take the followr",4_,
account, furnished by the Morning Post of Monday 4.7,
to its fashionable readers. It is there stated that, on fp'
occasion of the late Drawing-room, as Lords 3/lelbOurie
and John Russell were proceeding to the Palace, the,'
were received by the very great number of most resPeeti
able persons standing near to York House, with the nos
marked and determined hostility, and that for a full hOffr
they were obliged to bear the pelting of the Piffles;
storm ! ! As one of the lookers-on at this very slvt'
take upon myself wholly and entirely to deny this flies
impudent assertion. So far from this being the et
during the few minutes, and not the full hour, 99 t""
Tory Post affirms, that the carriages of these 116ble
Lords were detained in the line near to York 11°1iss'
they were approached by the persons then and there 95.
sembled, when the Noble Viscount and his felle/ra
labourer in the people's cause were most cordially afla
enthusiastically welcomed by repeated, long, and 1°,4
cheers, and which continued until they turned into l°,
Court-yard leading to the Palace. Lord Palmerston
also well received, as he deserves to be, for his straigr!".
forward and manly conduct on all occasions.
I am, Sir, your obedient servant,
ONE OF THE LOOKERS-ON NEAR TO YO
HOUSE ON THE QUEEN'S BIRTHDAY•