The Sun.
London, England, 1824-01-29 00:00:00

LAW INTELLIG ENCE.

COURT OF CHANCERY, JAN. 23.
onmiALL v. LORD SOMERS•
The question in this case, which has already been several
times under the consideration of his Lordship, was originally
as to the construction to be put upon a will of Dr. Nash. His
Lordship had pronounced a decree, declaring that Lady
Somers should take a life estate, with remainder to the eldest
son, and if the eldest son died without issue, that the estate
should be conveyed to the second son, John Somers Cocks, now
Lord Eastnor. A deed was subsequently executed, by which
certain trustees held the estate in trust for Lady Somers, for
life, with remainder to the eldest son, and upon his death, to
convey the estate to the second son. An Act of Parliament
had, since the decree had been pronounced, been passed,
which it was alleged had confirmed that decree. The bill
now filed was in the nature of a supplemental bill, calling
upon the trustees, under the deed recited, to direct a convey-
ance of the estate, in conformity to the last decree pronounced
by the Court.
Mr. PE YTS, in the absence of 111 r. Horne, the leading Coun-
sel, now appeared on behalf of Lord Eastnor, who. was now,
on the death of his elder brother, the eldest son of Lord Somers,
and who in the marriage articles of Lord and Lady Somers
was named tenant in tail upon one of the estates of his Lord-
ship, called the Doddeshill Estate. The Learned Counsel stated
that the question now to be decided by the Court was not with
respect to the will of Dr. Nash, but upon the construction of
the Act of Parliament, in what manner is confirmed the decree
which had been pronounced; and he contended,. that this Act
did no more than to confirm the decree with respect to the ex-
changes, and that it did not declare what were the trusts after
this exchange had been effected. The object of the Act was,
as far as he understood it, to throw the incumbrances upon the
family estate of Lord Somers, and to confirm the decree as far
as regarded the exchanges, but no farther. The Learned
Counsel then read the Act. of Parliament at length, and observ-
ed upon the clauses it contained, with a view to strengthen the
arguments which he had addressed to the Court, and conclud-
ed by urging the Court to direct a conveyance to be made, ac-
cording to the decree, in favour of Lord Eastnor and his issue.
Mr. PEMBERTON appeared as Counsel on behalf of the
children of Lord Eastnor, who had been born since the decree
had been pronounced, and were, of course, still minors. He
argued that there was nothing in the Act of Parliament which
could in any manner be construed to bind their rights.
The.SOLICITOR-GENERAL, as Counsel on the other side,
confessed that the impression upon his mind was, when the
decree was originally pronounced in this cause, that it was in-
tended that Lord Eastnor should take nothing, and that the
estate should descend to James Somers Cocks, the third son,
but now the second, since the death of his elder brother in the

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attention of his Lordship to the original will of Dr. Nash,
from which the present question resulted, and subsequently
read at considerable length the Act passed in confirmation of
the decree. The ultimate and only important question, as he
apprehended, now to be decided, was, what period of time was
to be fixed, when the person answering to the appellation of
fhe second son of Lord Somers, was .to take ? He was now
prepared to contend, that according to the true construction of
the will of Dr. Nash, neither Lord Eastnor nor the present se-
cond son were entitled to the estate under the will, and the
question was, Lord Eastnor having now become the first son,
whether the period had yet arrived when the second son could.
be said to be entitled. Before the death of Lady Somers, no.
son could take, and in the event of the death of Lord Eastnor
before that period arrived, then James Somers Cocks would be
the first, not the second..son, and. clearly not entitled. It ap-
peared, therefore, to be to him an übsurdity to fix the time
when the second son might claini, as it could not happen till
after the death of Lady Somers.
The Lou]) CHANCELLOR said, that the difficulty which
presented itself to his mind was, how the conveyance was to be
executed. Dr. Nash intended to give the estate to the second
son, but supposing Lord Somers and his wife had died, what
course could then have been pursued ? He apprehended that
the second son, according to the terms of the will, was bound
to do some act before the expiration of six months after he came
of age. .
The SWAT ITOlt-GENEftm, argued that the decree had in

terms declared that the present Lord Eastnor was not the 1,-
son entitled to take, and he thought it was immaterial wha:;t-c
the conveyance was to be made now, or at the death of Lady
Somers, because no second son could take. If the act had con
firmed the decree, how was his Lordship to deal with it ?
The Lo RD CHANCELLOR observed, that if the act confirmed
the decree, it might be asked what authority he had to recon-
sider the Decree ?

The SoLic IT on-GE NERAL having concluded his arguments,
The LORD CHANCELLOR postponed the further hearing
till Monday. It having been suggested that Monday was a
holiday, his Lordship replied " That is the very reason why I
ought to sit on Monday. If Ido not sit on holidays, I shall be
able to get through no business at all."
It is understood that the petition respecting Lord Portsmouth
is fixed for Saturday. To-morrow is motion day, and motions
only of course will be heard.

VICE-CHANCELLOR'S COURT, JAN. 28.
CITY TITHES.—MACDOUGALL V. PURRIER.
Mr. SrENcE stated that this was a bill filed by the plaintiff
for a reference to the Master, to take an account of what sum%
were due for tithes from the defendant as one of the parishioners
of St. Helen's, Bishopsgate-street, from the 20th of March,
1822, to the 25th of March, 1824.
The plaintiff stated in his bill that he was entitled to receive
these tithes, as the lay impropriator of them, and the rate itself
was fixed by the nth of Henry VIII. on the award of the
Archbishop of Canterbury, and enrolled in the Court of
Chancery.
Mr. HEALD said he understood that the City of London,
were much interested in the question, and that it was expected
that all parties should allow the case to stand over for the present•
The VICE-CHANCELLOR said it was mentioned that the
Learned Recorder and Common Serjeant of the City of London
were to attend.

Mr. HEALD understood that it would be extremely incon-
venient for these Learned Gentleman to attend the Coul!"
during term. Whatever decision might be made there,
was probable that the question would be taken to the House 0
Lords on appeal.
Mr. ROUPEL for the plaintiff, would not oppose any apr.:l
cation for delay on reasonable grounds, but there was nothini;
of a public or complicated nature in the question, it was onto
merely between individuals. The question, in fact, was whe.
ther the 37th of Henry VIIL gave the tithes of the parish for
the impropriator, at a rate directed by the Archbishop of Can-,
terbury. The Clergy of the City of London ever since re.
ceived their tithes under that Act, and the only object at pre-,
sent seemed to be to raise the question, whether every Clergy'
man was bound to produce the Act of enrolment, although the
tithes were paid under it for more than 200 years, without in.
terruption.
VICE-CtiaNCELLOR.—The question is, whether an enrol.
ment did take place, and if it did, is it a material averment of
the bill ?

Mr. ROUPEL.—They deny that the enrolment was vier
made, though they admit possession of works and d:ocumeifttil
giving evidence of the fact.
After an uninteresting discussion between his Honour in&
the Gentleman of the Bar, it was agreed to adjourn the cause
until Wednesday, when it will be freely heard. •

COURT OF KING'S BENCH, JAN. 28.
MALTON V. NESBITT AND ANOTHER.
This action was brought by Captain Mahon, a military Off"
cer, against the owners of an East Indianian, named the Apollo,
to recover a compensation in damages, for a loss sustained bir
the negligence of the defendant's servants.
The plaintiff' alleged in his declaration, that having become'
a passenger on board the Apollo, at Madras, the ship was lost:
by negligence, and thereby he was put to the expence of find'
ing a passage home which amounted to 1201. It appeared than
Captain Malton took his passage early in 1823 on board the'
Apollo, of which Captain Tenant was master, to be conveyel
from Madras to England. The passengers consisted of twentf."
six persons, most of whom were military officers. On April
16th the ship arrived off Table Bay, at the Cape of Good Hope*
The weather was fine, with a breeze from S.E. ; the Oil!
sailed at the rate of three or four knots. On tacking to. wea.
ther Robin Island and the Whale Rock; the ship struck upol
Green Point, a rock well known in the charts. She was stretch'
ing across Table Bay, with her head to the land, at the WO
the accident happened, and the object was to bring the ship to
the anchorage. The Captain and Chief i%late were off the decX
at the time, and the witnesses imputed negligence. When the
Captain came up, he said the Mate, who -had charge of the
watch, had run the ship ashore, and it was further stated tho
he did not exert himself to get her off; on the contrary, he re;
fused to avail himself of the assistance offered by several-
boats which came off on hearing distress guns fired. Thf
passengers were safely landed. The next day the weather
grew bad, and distroyed the ship. The plaintiff not onit
lost part of his baggage, but was obliged to go over land t4'
Simon's Bay, and take a passage in another ship to Enlg
land. Under the above circumstances he sought to obtain 1!
return of the expence lie had incurred, in consequence of 'tilt
loss of the ship by negligence. The representation on the par,'
of the defendants was, that all was done by the Captain 'on'
officers of the ship which could be done. At the time the shig
struck there was a fog, not uncommon off the Cape, which ha
the effect of making objects appear at a greater distance dial
they really were. There had been what the Captain tero
an allusion in the atmosphere all day, and at the moment the
ship touched the rock, he thought he was a mile and a half
from land. The fog or haze obscured the low land but left the
high land visible, apparently at a great distance.
A number of seamen proved that the Captain had done OP
that could be done.
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