The Sun.
London, England, 1841-11-22 00:00:00

LYDALL V. DODD.

This was a bill filed by John Lydall Dodd, against
Thomas Dodd, the surviving executor of his father, and
a number of other persons, praying generally for the per-
formance of the trusts of the will of John Lydall, in the
pleadings mentioned.
(Before Vice-Chancellor KNIGHT BRUCE.)
WITTY V. DIARSHALL.—PETITION.

This was a petition praying a reference to the Master
to inquire and report as to the right of certain parties
to control the religious education of the boy Witty.
The facts were shortly these :—The father of the boy.
Witty was a member of the Roman Catholic Church,
and died when his son was but an infant, appointing by
his will a person named Anderson, also a Roman Ca-
tholic, as guardian of his child, and enjoining Anderson
to take care that the boy should be educated in the Ro-
man Catholic faith. Witty, senior, died possessed of
but very little property, which was not sufficient for the
purpose of the boy's education, who remained until
three years of age under the care of his mother, who
was a Protestant. From that period till he arrived at
the age of seven years and a half old he was under
the care of his paternal aunt, Mrs. Conyers, a Roman
Catholic, and who during that time instilled into his
mind the principles of that faith ; then on her death he
was transferred to the care of his maternal grandfather,
Mr. Ditton, a Protestant, with whom he remained till
his fourteenth year, and during the intervening time it
was stated he had imbibed the principles of the Protes-
tant religion. As the boy was in delicate health, and
his grandfather Ditton seemed much attached to him,
and his (the boy's) temporal interest would be most pro-
bably benefited by his residing with his grandfather,
Anderson, the testamentary guardian, acting under the
impression that at that early age the child's religious
principles could not be materially biassed one side or
the other, did not interfere to withdraw him from the
affectionate care of Mr. Ditton. The latter had by his
will, and when the boy was residing with and being
educated by Mrs. Conyers, left him a sum of 1,0001., and
by a codicil to that will in 1841 bequeathed another sum
of the same amount, without making any remarks in that
codicil as to how the lad should be brought up. In
1841, on the death of Mr. Ditton, the lad fell under the
charge of Mrs. Marshall, his maternal aunt, a Protes-
tant, and four months subsequently Anderson, having
heard. that Miss Ditton, now Mrs. Marshall, was abOut
to get married, and that Witty, in consequence, was
about to be sent to a boarding school, entered upon a
correspondence with her relative to what should
.he
done with the boy. The result was his being re-
ferred by her to her solicitors, and hence the present
application.
Mr. SPENCE (with whom were Mr. Russell and Mr.
Dearsley) appeared for Anderson, the testamentary
guardian, and said that all his client was anxious for was,
that with the least possible expense, and in the manner
most beneficial to the boy, the Court would decide as to
the course of education which he should receive. He
was desirous that his Honour should see the boy him-
self,
and hear what he had to say as to his religious belief.
His HONOUR said that his so doing would be stepping
very much out of the ordinary. course, and unless all the
parties concurred in that desire he could not think of
complying with it, and even then he was not decided as
to whether he would see the boy. The matters brought
out at such an interview would be much better discussed
in private at the' Master's office than in public.
Mr. SWANSTON, who, with Mr. Koe and Mr. Smythe,
appeared for Mrs. Marshall, stated that that lady was
very anxious that his Honour should see the lad.
On the close of the arguments on either side, his
HONOUR, in delivering judgment said, that with regard
to the alleged guardianship of Anderson, as it appeared
that the boy's education had devolved, during a
long course of years, upon other persons without
any interference on the part of that person,
as guardian—though he, if legally the guardian, was not
by that circumstance deprived of his right as such—
there was a prima facie case for a reference to the Mas-
ter, especially when at the present moment the boy was
not under the alleged guardian's care. With respect
to the other points involved in the case, he had no
doubt that all the parties were actuated in the
course they had taken by the best motives, according
to their judgment, relative to the boy's interest. Witty,
the father, was a Roman Catholic, and appeared by his
will to have left strict injunctions that his son should be
brought up in his own religion. It was, therefore, the
duty of all those who, with the knowledge of that fact,:were
concerned in the care and education of the infant, to have
caused him to have been brought up in his father's
religion, and there had been to that extent, in his
Honour's judgment, a breach of duty both to the father
and the infant. He could readily understand the motives
which actuated Anderson and the members of the
father's family in not interfering with the maternal re-
latives—particularly the grandfather—with respect to the
care and education of the infant—such a course might
probably have interfered with the boy's temporal prospects.
At the same time he must say that Anderson might have
with delicacy communicated with Ditton, the grand-
father, on the subject of the child's religion and expressed
a wish that he should be brought up in his father's faith.
That was a duty which was equally incumbent on the
relatives of the mother; and in his Honour's opinion
those relatives, from motives, however good, had not kept
faith with the dead. They might and ought to have
brought him up in the faith of his father,
though they themselves were Protestants. That,
however, had not been -done, and the boy had
been allowed to grow up to a. most important period of
life educated as a Protestant, and living under Protes-
tant
impressions. Whatever weight ought to have
been ascribed at an earlier period to the father's
wishes, it was impossible so far now to over-
look the interest of the infant, as not to see
that great danger to his future spiritual welfare and
of the
7tir,.7c;,il..character might—he would not say would—might,
.1 trout a change in the course of his religious educa-
tion. On that
have arisendiffsei
ground and, on that alone, it was the
duty orzret toe
father'spause.
mightm g h t
which would
render a
have eut course of proceeding from that
takenThosematteplla-cwe'ouledssbe
in-
fants' interest.entibaelsttodistheteissednature of the discussion—no
in the Master's office. However, looking at the
withstanding the respect-
ability of the parties, the great probability was
that the matter would ultimately be again brought
before the Court, whatever the Master's report might be;
andb the
and considering the small fortune of
the
expenses attendant on a prolonged inquiry
the Master, his Honour, since it wasthe requestefore
of all parties, had no objection to see and
converse with the boy, not, however, so as to
of guiding the Court in the species of
dispense with the reference to the Master, but for the
reference,p tueurpo purpose
and in the particular language of the
order to be made, and stating :for the Master's
information, but not necessarily for his guidance,
the impression made on the mind of the Court, if any
should be made, by .the personal communication with
the infant. In that view his Honour was willing to see
mission, was ac-
cordinglyH nour's er •
the boy before the particular. form of order was agreed on.
Thursday next, with his o p
and his Monour stated
that he would see the lad on fixed for the
purpose
eiat day in his room.
The Court rose at four o'clock.

COURT OF QUEEN'S BENCH, Nom 20.
THE QUEEN V. THE SCRIVENERS' COMPANY.
This was a rule calling upon the defendants to show
cause why a writ of mandamus should not issue, directed
to them, and commanding them to admit Wm. Page, jun.,
to the Scriveners' Company, to enable him to practise as
such within the limits of the City of London. It ap-
peared that the applicant . had been duly indentured to
his father, an attorney and scrivener, and had served him
as his clerk during the term of 12 years, five to qualify him
for the profession of an attorney, and seven to enable him to
act as a scrivener. The applicant was duly admitted an
attorney, and when he subsequently applied to the Scri-
veners' Company they refused to admit him, alleging

that he had not complied with the provisions of the Act
under which the CG.npany was incorporated, and that
he had not served the time required by the Act. That
was in substance the answer to the writ, and _

The SOLICITOR-GENERAL now appeared to show
cause against the return. The question turned upon
the service of the party, and by the 41st George 11L,
chap. 79, sec. 7, it was enacted that the party should
be bound for any space of time not less than seven
years, during which time he should be employed in the
business •of a public notary, and by the 13th sec., it was
provided that the Scriveners' Company should admit
the party having so served, on the payment of the
usual fees. When the rule was moved for several cases
of a similar nature were cited, and their Lordships were
clearly of opinion at that time that the service was good.
Page the elder was a notary public, and was also an
attorney duly admitted, and carried on the two
businesses, which were not at all inconsistent,
inasmuch as the Legislature, by the Act 3d and 4th
Wm. IV., c. 70, had authorised attorneys residing in the
country to carry on the business of a notary public. In
the present case the applicant served a period of twelve
years, and during all that time he remained under the
control and direction of his father, devoting one portion
of his time to the business of a notary, and the other to
the business of an attorney. Ho was duly admitted an
attorney ; and if there was anything improper or illegal
in the service, why had not application been made
to strike him off the roll ? On the other side,
the case of the King v. the Scriveners' Company, reported
in the 10th vol. Barnewall and Cresswell, page 511,
was relied upon. That was an application to admit a
person named Ridgway to the office of scrivener and
notary public; he having served a person named Drake
for seven years. It appeared that during the same
period Ridgway was employed from ten till five at Hop-
kinson's banking-house in Regent-street, and after that
hour he went to Drake's, and attended to his business
for sonic hours. The defendants in that case refused to
admit him, and Lord Tenterden discharged the rule, it
being clear that the applicant had other masters and em -
ployers, and was not during the seven years wholly under
the control of Drake. That case, however, was entirely
distinct from the present, and he submitted that the ser-
vice was good, both as regarded the notary public and
attorney. The decision of the Court in former cases
was in his favour, and the rule for the mandamus ought
to be made absolute.

The ATTORNEY-GENERAL protested against its being
said that the Court had come to any decision favourable
to his Learned Friend in any case similar to the present,
and against the judgment of the Court being forestalled
by such a statement. He was quite satisfied that the
Court had pronounced no opinion whatever when therule
was applied for, because it was the uniform practice in
modern times to grant these rules, so that these impor-
tant questions might be decided upon the fullest and
most satisfactory discussion. The question was,
whether these two occupations of notary public
and attorney, although the Legislature permitted
them to be carried on under certain circumstances toge-
ther—whether these two occupations were one and the
same, or entirely distinct. He submitted that the latter
was the case ; and when it was alleged that it would be
a hardship upon the party having served his time to
both, his reply was that
.the party should not have at-
tempted to do what the Act of Parliament specifically
provided against, and he must take the consequences of
his own indiscretion. In the present case the applicant
had been allowed to elect, and having been admitted an
attorney, he had no right to turn round now and claim
to be admitted a notary public. In fact he had no right
to be admitted to either; but when the application to be
admitted as attorney was made, there might have been
no means of bringing these facts before the Court. Now
the Attorneys' Act, 22d Geo. 11., chap. 46, provided
that, during the time of his service the party should
continue and be actually employed by such attorney or
solicitor in the business, practice, or employment of such
attorney or solicitor. It was clear, then, that the two
occupations were entirely distinct, and could not be fol-
lowed at one and the same time. The Learned Counsel
referred to several cases in which the question of service
had been discussed, and observed that the parties for
whom he appeared had felt it their duty, in watching
over the interests of the profession, to resist the present
application, being convinced that such a proceeding
would be highly prejudicial thereto.
The SOLICITOR-GENERAL having replied,
The COURT took time to consider its decision.

THE QUEEN V. THE VESTRYMEN OF MARYLEBONE.

After hearing a portion of this case, the Court rose at
a quarter past two o'clock, to meet the other Judges in
the Exchequer Chamber.

COURT OF EXCHEQUE R, Nov. 20.

HAYNES V. JONES AND ANOTHER.

In this case the plaintiff had obtained a judg•
ment against four persons of whom the defendant
was one. One of them resided in Devonshire, an-
other (the defendant) in Denbigh, and the other two
in Liverpool. It appeared, that after the judgment,
and before it was put in force, the defendant Jones
had become insolvent, and been discharged under
the Act. He one day had ridden into Carnarvonshire on
a horse belonging, as he alleged, to his mother-in-law ;
he had put up at an inn there; when the horse was
seized upon a writ of fieri facias. Mr. Jarvis had ob-
tained a rule to set that writ and execution aside, on
the ground of irregularity. Cause against that rule
was now shown by Mr. Henderson. After long argu-
ments on both sides,
The COURT said the rule must be made absolute. The
discharge of the defendant, under the Insolvent Act, was
a discharge from all his liabilities, whether personal or
joint. Therefore, the Sheriff had no right to seize any
property, either of his own or under his charge. Both
the writ and execution must be set aside with costs, the
defendant undertaking to bring no action for the wrong-
ful seizure.—Rule absolute.