The Sun.
London, England, 1841-11-10 00:00:00

SPIRIT of the- PUBLIC JOURNALS

viols TICS DAILY PAPERS Or YESTERDAY.
GLOBE.—Another attempt is, it seems, to be
made, by the appointment of a fresh Commission, to
endeavour to reform that reproach to our age and na-
tion, the Court of Chancery. The object of this
Commission is " to examine into the forms and
modes of proceeding in the Courts of Equity, with
a view of rendering the system less cumbrous,
and the progress of a suit less tedious and ex-
pensive." The very appointment of such a commission
is matter of satisfaction. It admits the existence of a
" cumbrous" and " expensive" system of jurisprudence,
rendering the progress of a suit " tedious," and th e
amount of costs incurred by the litigants ruinous to
most—oppressive to all. " A Chancery suit has become
the object of dread and horror. Its very name is only
another form of expression for delay, carried beyond
the bounds of human endurance—for expense, which
none but the most wealthy can sustain—for a con-
stantly craving monster, by whose maw the amount of
the property in dispute, be it personal or real, is gene-
rally devoured, so that if the worn-out suitors have not
quitted life before the judgment of the Court is pro
nounced, they have long since abandoned hope of
advantage from the decision." In most cases, the ori.
ginal parties have passed away from the anxieties
of time ere the cause becomes ripe for judgment,
leaving to their heirs the certain regret that their
predecessors took the most effectual means to diminish
their substance, even though by so doing they antici-
pated the natural period at which they would, without
such en auxiliary, have been placed in possession of
what is left. "The Courts of Equity," says a Tory
Contemporary, who converts the appointment of the
commission into an occasion for eulogizing Sir It. Peel
as a Reformer—" The Courts of Equity are now
practically closed against all the people, except where
objects of very great value are concerned, and prac-
tically closed against the less wealthy, whatever
may be the object. If the Courts of Equity
are good for anything, it is a good confined to the
wealthy ; and these Courts are often a positive evil to
the poor, dragged within their meshes, without the
power eitherl to defend themselves when enthralled, or
to escape from the thraldom."
We are sceptics as to any practical reform being
effected by this much-vaunted appointment of a com-
mission ; and must therefore withhold our plaudits from
the Premier, until its report, making known its plans for
reforming the Court of Chancery, be published.
STA ND A RD.—The charge against Sir Robert
Peel is no longer that he postponed the exposition of
his intended financial arrangements ; that is a charge
which cannot be maintained amid the proofs afforded by
every day's events, that any financial plan prepared in
October must have been prepared in ignorance of the
demands upon the public purse, and of the strength
of the existing sources of revenue. The shape that the
accusation now takes is somewhat different. We quote
the Morning Chronicle :
" The most criminal aspect of their delay was its
heartless disregard of the condition of suffering mil-
lions. They evaded and postponed, and have the
desperate hope of escaping the great question by
which the nation is agitated. They leave the peo-
ple to face the horrors of the coming winter, with trade
embarrassed and declining ; with a harvest so bad that
prices are kept down by the sale of corn scarcely fit to
thicken hog's wash ; with bread 40 per cent. dearer
than across the Channel ; with the prospect of famine
producing the mockery of open ports when the frost
shall have locked up those from which supplies should
come ; they perpetrate this crime, because what intelli-
gence and desire of popular favour exist amongst them,
are overborne by the sinister interest of a rapacious and
haughty monopolist class."
Divested of that vehement eloquence in which it is
clothed, the charge here brought against Sir Robert
Peel and his colleagues amounts to this, and no more—
that they did not provide some remedy against the dis-
tresses threatened by the approaching winter.
Now what remedy, we ask, was it in their
power to apply ? The adoption of the rejected scheme
of the late Administration? Why, this would have
been to augment greatly the distress, as far as it can be
said to arise from tl.e high price of corn. The markets
are now, happily, declining; but very lately the duty
payable on foreign corn was so much less than the
Bs. duty, which the Whig-Radical scheme would
impose, that it is calculated there are four millions
of quarters of foreign corn in the country. The corn
is here—much the greater part of it imported at a
duty of one shilling, and it surely matters nothing
to those who are to consume it at what time it was
imported. The consumer has it at a Continental
price, increased only by a nominal duty—has it not
only to purchase on these cheap terms, but to depress
the price of grain of home growth. As to what our
Contemporary says of the bad quality of English corn,
we cannot forget a similar complaint last year from the
same quarter, and our answer to it ; which was simply
a reference to the bills of mortality, in proof that the
corn was not unwholesome.
COURIER.—The objection to Whig Commissions
was their expensiveness, and the facilities they afforded
for jobbing ; neither of these can apply to the Commis-
sions or Commissioners emanating from the present
Government. And in this consists the main difference
as regards the question of Comrnissionerships between
its conduct and that of its predecessor. We
do not mean to say, as we do not think, that the publics
money is uselessly laid out in the collection and ar-
rangement of details and facts either illustrative or
pertinent, but we dislike the system, which devolved
the important duty upon paid Commissioners, mere
temporary officials, devoid of position and responsibi-
lity, and therefore affording the Legislature no suffi-
cient guarantee either for the correctness or impartiality
of their reports. But the case before us evinces a
completely different spirit. We are to have no salaried
commissioners—no gapings for office and its emolu-
ments amongst hungry dependents—no scramblings
far place. But those in whom the nation confides—men
of experience, judgment, and tried abilities—have
been appointed to conduct the investigation into the
respective departments named ; and upon their reports
and, suggestions the most cautious need not scruple to
act. From them we anticipate many valuable improve-
ments. It is not the saving of expense, for ex-
ample, in the collection of the revenue—one of the
objects of the inquiry instituted by Sir Robert
Pee!—which we so much value, as the removal
of all harassing, needless restrictions, and the substitu-
tion, for the entangled, clumsy complications which
now prevail in many of the minor departments con-
nected with the Custom-house, of one simple, uniform
system. That there may be a considerable saving of
expense, we do not deny—although upon that point we
are not very sanguine—but that commercial operations,
and those engaged in them, will be relieved from many
cumbersome instructions ; and that the mode of col-
lecting the revenue by being simplified, will greatly tend
to
olighten its pressure, we fully expect ; and the con-
fidence. we repose in the acuteness and comprelsen-
seness of the Commissioners inspires the hope that
the event will realise our fullest expectations. These
are the kinds of amendmenti andeLegislature
raform which the ne-
tion requires, and
wheh
th can sanction
and approve without dread of ulterior
consequences ;
they are as safe as beneficial ; the proposal of
; th
them will excite no strife carrying of them will
leave no bitterness, no wild untriede theories, no sweep-
ing revolutions, but necessary,
tpracti cal, well-considered
g
measures of reform, root of abuses, which
come home to the bosoms and business of all, and which,
while they afford substantial and immediate relief to many,
inflict injury upon none. To simplify and acheapen
the
collection of the revenue—to disencumber proceed-
ings in equity from all those forms and restrictions
which obstruct justice, by rendering the approach to it
difficult and expensive, which diminish its value by de-
laying its decisions—these are the truly national and
beneficial objects proposed by the present Government,
and for the attainment of which it has made so appro-
priate and felicitous a selection of Commissioners.

LAW INTELLIGENCE.
ROLLS' COURT, Nov. 9.
BURNESTER V. PARRY.
In this case the parties had agreed to take the opinion
of the Court as to the construction of the residuary
clause in the will of a testator, who died in 1790, whereby
the testator gave all his personal estate to his wife, with
power to dispose of the same as she should think fit ;
but in case she should die possessed of any part thereof,
without having made any disposition, then the trustees in
trust to divide the same amongst his three daughters,
or such of them as should be living at the time
of her decease, and testator appointed his trustees
executors. The executors proved the will, and testator's
debts being paid, there remained a considerable residuel
amongst which were certain turnpike securities, which
were handed over to the widow, and the profits of which
she enjoyed during her life. At her death the three
daughters conceived they were entitled to them under,
the residuary clause, and entered upon the receipt of the
profits of the securities, and continued to receive them
until the death of the eldest daughter, who made her will
and bequeathed all her property to one other sisters, who
then took two-thirds of the profits of the securities, the other
third being enjoyed as before by her remaining sister.
This
second daughter also died, and the remaining sister
! athe profits of the whole securities, and died, leav-
ingcuto4r,l by which she appointed the plaintiff her ex&
de-
fendant, and gave the residue of her property to the de-
who claimed them as part of the estate of the
surviving
on
rvinngdaughter. On the part of the plaintiff, who
eof the administrators of the widow's estate, it
wag urged that
for under the words of the clause no trust
attached
the will vested the
benefit of the three daughters, but that
His Lompa the estate absolutely in the widow.
briefly for the after hearing Mr. Pemberton very
defendant,to ordered the plaintiff to hand
over the
seettrites the defendant. It appeared that
an arrangement had
to costs. been made between the parties as
VICE-CHANCELLOR'S
(Before v. COURT, Nov. 9.
syr
ovhaniniCeilOY KNIGHT BRUCE.)
•
At twoutpfive .1011 an t '
E LORD MAYOR.
acco m pani ed i past two o clock the d
the civic authorities,Lor ea-
Mtl4 the Court, when
hie ilmur, 501.01 the Recorder, addressing
desired by the Lord

Mayor and Sheriffs of the City of London
to requeA, the favour of your Honour's company to an
entertainment to be given this day in the Guildhall.
His Hosouu intimated his acceptance of the invite.
tion, and the Lord Mayor, the Recorder, and their atten-
dants having retired, the business of the Court was re-
sumed ; but no feature of public interest was presented
in the causes which followed.
His Honour rose shortly before four o'clock.
(Before Vice-Chancollor WIGRAm.)
VISIT OF THE LORD MAYOR.
About half-past two the Lord Mayor, attended by the
Civic authorities, having entered the Court, the Recorder,
in his Lordship's name, requested his Honour's company
at the entertainment to be given at the Guildhall this
evening.
His Honour having accepted the invitation, the Lord
Mayor, with the Recorder and other authorities, left
the Court.—The Court rose at half-past three.

COURT OF QUEEN'S BENCH, Nor. 9.
WILLIAMS V. FORD.
The COURT gave judgment in this case, which was ar-
gued by Mr. Erie during the present Term. It was an
action of replevin, and a rule was moved for a new trial,
on the ground that the verdict for the defendant was
against the whole weight of the evidence, which went to
prove that the 451. paid to the defendant was for rent
due. The Court was of opinion that there ought to be
a rule for a new trial.
GARDNER V. M'MAHON.
Mr. COWLING moved, in this case, for a rule to show
cause why the verdict for the plaintiff should not be set
aside, and a nonsuit entered, by leave of the Learned
Judge. The action was tried before Mr. Justice Patte-
son at the last Middlesex sittings, and a verdict had for
the plaintiff for 1761. The action was for work and
labour done, and the ordinary money counts, and to
these the plaintiff pleaded non-assumsit, payment, and
the statute of limitations ; and that was the only plea
with which the Court would have anything to do. The
plaintiff was an engraver, and the work done was the
engraving of a map of the island of St. Christopher. The
work was executed in the years 1830 and 1831, and
about the same time the defendant paid Mr. Gardner 1051.
on account. It would appear that there had been
no dispute as to the quality of the work ; but
the cause of action having occurred ten years
ago, the only evidence which could take it out
of the statute of limitations, was a letter written by
the defendant to the plaintiff on the 28th of October,
1835. The letter stated that the defendant did not mean
that his creditors should lose what he owed them, and
that he would not only pay his debts, but interest upon
them, if he could. As, the statute of limitations had
been mentioned, he (the defendant) was ready to put it
out of his own power to plead the statute. He was un-
able to pay them, as, in the course of the year,
the West Indian subscribers to the map had
failed to pay their subscriptions. It was indis-
pensable, in the first place, that the amount
of the balance due should be fixed, and then
he was ready to give his note. The letter then
referred to the estimate given in by the plaintiff, and
alleged that the charge for engraving the map had much
exceeded it. He hoped, under these circumstances, the
plaintiff would be prepared to say what deduction he
would make, and he would then be glad to give his
note for the amount if he could do so with justice to
his other creditors. That was the substance of the
letter and he (Mr. Cowling) submitted that it was not suf-
ficient to take the ease out of the statute. A letter to do
that must contain a clear and unconditional promise to
pay what was due on a distinct acknowledgment, from
which a promise might be inferred. Although it was
not necessary that the amount should be stated, it was
clearly indispensable that the amount due should not be
disputed. The defendant had clearly made it a condi-
tion precedent of his promise to pay the debt that the
amount should be settled and some deduction from the
charge made. It was contended by the other side that
the letter was clearly an admission of money due, from
whence a promise to pay might be inferred.
Lord DENMAN—You won't contend that an uncondi-
tional promise was necessary, if there was a complete'
acknowledgment of the debt due?
Mr. COWLING—No, my Lord; but where the defen
dant disputes the amount, the letters cannot be taken as
an acknowledgment. The Learned Counsel having re-
ferred to the authorities on the subject,
The COURT took time to consider its decision.
MILWARD V. HERBERT AND ANOTHER.
Mr. CRESWELL said this was an action upon a policy
of insurance effected by the defendants, Directors of the
Mutual Marine Insurance Company, upon the steam ves-
sel the Kilkenny, trading between London and Waterford.
The declaration set forth that in consideration of the
sum of 2261. paid by the plaintiff, the defendants did for
themselves and their partners, covenant and agree with
the plaintiff to make good all losses and damage that
might happen to the vessel, her hull, stores, machinery,
&c., which were thereby insured to the value of 20,0001.
an the cargo to the value of 3,6001. The decla-
ration then alleged the payment of the premium,
and that during the continuance of the policy and
while the defendants were still interested, the vessel took
on board, at Waterford, divers stores and goods, and
among the rest 1,000 pigs, to be conveyed to London.
That while the vessel was proceeding on the voyage, and
during the continuance of the risk, by reason of the vio-
lence of the winds and waves, it became necessary, in
order to preserve the vessel and cargo, to throw a part of
the cargo overboard, and the master accordingly did
throw the pigs overboard. There was this singularity in
the declaration, that no other cargo was shown to be
taken on board, and that in order to save the cargo
the pigs were thrown overboard. His Learned
Friend (Sir Wm. Follett), who was on the other side,
suggested that that might be accounted for by its being
an Irish voyage.—(A laugh). It was then alleged that
the owners of the vessel paid a contribution by way of
general average to the owners of the pigs. To that the
defendants pleaded that the pigs, up to the time of their
being thrown overboard, had been placed on the deck of
the vessel, by reason whereof the defendants were not
liable to pay for any loss. To that the plaintiffs re-
plied, that at the time the pigs were so laden and
placed on the deck of the vessel, she was proceeding
on her voyage from Waterford to London, and
t!lat there was a certain usage and custom in the
trade with regard to the placing of pigs upon the deck.
To that the defendants had demurred, and the special
cause of demurrer assigned that the defendants had no
notice of the custom therein stated, or that the vessel
would be employed in carrying pigs. Now this was an,
action of the owner of the ship against the under-
writers to recover, under the policy, a contribution
by way of general average, for the loss sustained
by throwing the pigs overboard. It was laid down
iu books of authority, that where a deck cargo
was carried, and the goods were subsequently
thrown overboard to lighten the ship, the owner of
the cargo was not entitled to make contribution by
way of general average. It was very reasonable that
such a rule should be followed, because the principle on
which general average rested was that all the goods
on board were in an equal and like danger. If the
danger was equal, then the contribution should be equal;
but that could not be where there was a deck loading,
because its natural tendency was to place all the rest in
greater danger, to impede the working of the ship and
render her top heavy. Again, danger to a deck cargo was
much greater than to a cargo stowed below, for it might
be washed overboard, and the perils of the sea were in-
creased thereby, and the danger and risk to the owner
was much more than those having goods under hatches.
He apprehended, therefore, that the general rule of law
that contribution, by way of average, should not be
made in regard to goods loaded on deck. The Learned
Counsel referred to the case of Da Costa v. Edwards, 4th
Campbell, which was an action upon a policy of in-
surance upon a voyage from London to Lisbon, to
recover the value of forty carboys of vitriol. The
carboys were lashed on deck, and a storm broke
one of them, and they taking fire, it was necessary, in
order to save the vessel and cargo, to throw them over-
board. Lord Ellenborough in that case left it to the
Jury to say whether it was usual to carry them on deck,
and whether they were properly stowed. Now, the
Learned Judge in that case adopted the law that the
underwriters, but for the usage, would not be liable for the
goods ; and how much less could the rule apply to the
case of the underwriters on the ship, who had no notice
of the trade the vessel would be engaged in. In the
present case it was not alleged that the underwriters had
had any notice, but lie submitted that the plaintiffs
were bound to have done so.
Mr. Justice COLERIDGE—If it were an action upon a
policy to recover the value of goods how would it be ?
Mr. CRESWELL—If the party insured goods for the
voyage, whatever extraordinary habit prevailed as to
these goods, he must be supposed to know it ; but when
the party effected a policy on the ship there was nothing
to draw his attention to any extraordinary usage
or purpose to which the vessel might be applied.
The contract in the present case was evidently
a contract between the owner of the ship and the
Owner of the goods, and could not affect the under-
writers on the ship. On these grounds he submitted
that
the replication was bad for not averring a notice of
the custom, and the more especially as this was a time
policy.
He contended that in all these cases there must
be a notice expressed or implied, but the somehow or
other notice NV-s essential ingredient, and must appear
on the record,for these reasons it appeared to him
that the pleawas and
good,
judgment
that
the Court
replication
mustdid nboet
answer it, and that t
forTthhee dseLefetnediaTnetil..
GENERAL for the plaintiffs submitted
that the terms
of the policy being
services,
theyces,
to isure the ship from
all losses at all times and in all the defendants
could not now set up
the plea that
the nature of the trade the vessel wasto
The question was, whether the goods
in the manner usually recognized in that been stowed
had
dae de
b n
employed in. notice of
eo
Particular
trade, and if that were the case there could be no pre-
tence for refusing or denying their liabilitdenyingmight
state here Celt an action had been brought
by the owner
of goods against the shipowners in the Irish Court
of Exchequer, and the very samo question had
been raised there, namely, whether, from the circum-
stance of the goods being loaded upon the deck, the
owner was entitled to compensation. The Chancellor of
Exchequer in Ireland had held that the goods bei-
carried according to the usual custom, the owner was en.
titled. Now such was the view of the case which he was
submitting to the Court, and with regard to notice, it was
held by the general insurance law of England that that
Where
notice of the usage of trade was not necessary.
the underwriters undertook the extended ris of insuring
in all trades, they obtained a correspondingp
The reum,
and could not then plead want of notice.
defendant's
plea did not set out that the goods by being placedon
deck impeded the navigation of the vessel, or increased
the risk, and therefore it was manifestly insufficient.
Had • they alleged that the risk had been thereby in-
creased, that might have called upon the plaintiff to
show why the goods had been so loaded. Every
underwriter was assumed to be acquainted with the
practice of the trade in which ho insured, and if a
different rule was. to be applied to time policies they
would be nothing more than a dead letter. On these