The Sun.
London, England, 1841-11-17 00:00:00

TUE SUN, LONDON, WEDNESDAY, NOVEMBER 17. 1841.

of relief the Court would administer to the charity. He
thought the charity was entitled to ask for the principal
sum that had been received, and to be placed in the same
situation as if the same annual value had been reserved
in the last lease granted, and that the lease should be
considered as adopted for the benefit of the charity at
the time the Commissioners investigated the subject ;
but, at least;: he asked that the amount of the principal
money receir4 for •fines and timber should be restored.
Then a scheme was tio-be considered for the application
of the.fund, and he would suggest that an hospital should
be built, and that it should be otherwise appropriated,
according to the intentions of the founder.
Mr. KINDERSLEY, on behalf of Dr. Prettyman, said
that undoubtedly the foundation deed was very explicit,
as to the mode in which the intentions of the foun-
der were to be carried out ; but Dr. Prettyman
was only pursuing the course of his predecessors, who
had received the fines for many years back, and who, of
course, had believed that he was entitled to them, but
who, with regard to the future, was willing to submit
to such directions as his Lordship should think fit to
make. But for the fines received since his appointment,
which he had received as a matter of emolument, he
thought the Court would hardly go back to them beyond
the time when the attention of Dr. Prettyman was, of
course, for the first time called to the subject by the
Charity Commissioners. If he had received any subse-
quently, a different consideration might be applied to
them, but with respect to the othera he would submit to
the Court that the six poor persons were not in existence
who could have received any benefit from them.
The MASTER of the ROLLS—From the titre Dr.
Prettyman was informed of this has he been prompt in
setting himself right and in restoring the charities ? I.
own I strongly feel that when a breach of trust is acci-
, dentally discovered, and the person who has been in-
' nocently, though improperly, in possession comes for-
ward promptly to set the matter right, that the Court
should deal as leniently with him as possible ; but
when he contends for his right after` the truth has been
discovered, it is a very different thing.
Mr. KINDERSLEY said it did not appear that the truth
was discovered, nor that the document was forthcoming.
He admitted that the refusal to produce it was impru-
dent ; but many an innocent person, when he found a
claim made on what he had supposed to he his property,
was naturally unwilling to assist in depriving himself of
it. With regard to the timber, he submitted that the
money received for that was no more than the ordinary
profits arising from the premises. He submitted that
they ought not to go back beyond dui investigation by
the Commissioners, and that the Court ,shenledirect an
inquiry as to the application' of the fund.
Mr. LOFTUS WIGII.OI. on the same side,' said that it
had been repeatedly directed by the Court in cases
similar to the present, when a long e period had
elapsed, during which a party had- innocently
misapplied a charitable fund through the lathes of others
—that was, through none of the public setting . him
right—not to call upon him to account for a longer period
than that at which the misapplication of the fund had
been discovered. If it could be shown that the public
had told Dr. Prettyman that he had no right, or if the
Dean and Chapter, who were visitors of the charity,
had told him that the allowance to the poor ought to be
increased, the case would have. been different ; but until
some circumstances of this kind' was charged against
him, he did not see how his Lordship could consider
him otherwise than in the light of am innocent party.
' The Learned Gentleman then 'cited the Attorney-Ge-
neral v; the Mayorof Newport, 3 Milne and Keane 650;
the Brentwood. schotil case, Ist Milne and Keane; and
the Attorney-General v. the Archbishop of York. He
hoped his Lordship would at least make a distinction
between charging the defendant with all he had received,
and with what might have been considered a sufficient
provision for the charity. The foundation on which it stood
cirectcd that houses for 13 poor persons should be
kept up, and that if other benefactions were made to it,
the number should be increased. In the present case
there had been no additional benefactions, but merely an
increase in the value of the lands. Under these circum-
stances, he hoped his Lordship would think that relief
ought not•to be granted, except by making the defen-
dant pay what he might have received since the Charity
Commissioners had called his attention to the subject.

A Learned Gentleman appeared for the Bishop of the
diocese, and exhibited his right of patronage;
Mr. B.ifiLow, for the Dean and Chapter,:appeared to
submit to'the direction of the Court, and applied for the
costs of his clients. He submitted that it was not fair to
allege against them, as had been done, that they had
thrown obstructions in the way of the charity. They
had not exercised their patronage for four hundred
years, but it had been exercised all that time by the
Bishop of Lincoln; and the Act of Parliament under
which the Commissioners acted, the Ist and 2d William
IV., c. 34, provides against their compelling the pro-
duction of any documents held by collegiate bodies.
His clients had been always willing to produce the
documents in question to any person not claiming it as a
right, and he therefore submitted they were entitled to
their costs.

Mr. FEMBEUTON, in reply, said that the decisions of
his Lordship (Lord Langdale) went further on this sub-
ject than any authorities that could be produced. In
this case he submitted that the chapelwarden had no
more, right to cut down timber, 'Or to claim the surplus
of that property than any of the objects of the charity,
of which he was one. Ho Mt called upon to say a word
respecting the course pursued by the Dean and Chapter.
It was not to be supposed that, because the Act exone-
rated these bodies from the control of the Charity Com-
missioners, with respect to these bodies themselves, they
were, therefore, exonerated from their control when
they were trustees of charities, and justified in with-
holding documents relating to their trusts. There was
not the slightest doubt they were bound to produce the
legal documents of charities connected with their body,
and he hoped his Lordship would set them right upon
this subject. He did not assent to the proposition made
by his Learned Friend. The original division was a
sum of 321. among the objects of the charity, giving a
double share to the chapelwarden. He thought that at
least the charity ought to have the benefit of the lease
for 21 years now in existence, taken from the time the
Commissioners made their Report, and then he should be
dealing more leniently with the parties than perhaps the
Attorney-General would think he ought to deal. But
on the part of the Attorney-General, he should be'con-
tent with whatever his Lordship might direct, but he
thought his Lordship would feel that a party whose
conduct their Counsel did not attempt to defend, ought
not to receive the costs to which other parties were
entitled.

The .IIAsTEn of the ROLLS said in these cases, a great
deal must depend on the conduct of the defendant. Ile
would read the answer and see what it said about it. It
was a great mistake to suppose the Court had discretion
to determine the right of the parties. Its discretion was to
deal with the fines. This sum of money, beyond all doubt,
belonged to the charity ; but when a:party innocently
iu possession of trust money, on discovery of its
misapplication, came forward and gave every
facility to the due application of the trust money, there-
after he had never thought it an improper exercise of the
discretion of the Court, to save him as much as possible
from a bygone account. He believed that from his
acting on that principle great facility had been afforded
for the recovery of charity property, which otherwise
would have been lost. But the promptitude of the de-
fendant in setting the matter right, was an important
element to the exercise of the discretion of the Court.
It should not be forgotten that there were cases in which
the Court, however hard it might be on the parties,
had not thought it right to act on the discretion which it
had at other times exercised. There was a case in which
Lord Eldon himself had referred the matter to the At-
torne) -General, and had taken the benefit of his report
in considering what was to be done. In this case the
Dean and Chapter, by their Counsel, reproach Dr. Pret-
tyman, and Dr. Prettyman, by his Counsel, reproach
the Dean and Chapter ; but the conduct of the latter
cannot be defended on the ground that they were urged
to it by Dr. Prettyman. lam only observing on the
singularity of parties reproaching each other for acts
which they seem to have done in perfect concert. Let
this case stand in the paper for to-morrow.

VICE-CHANCELLOR'S COURT. Nov. 16.
(Before the VICE-CHANCELLOR of ENGLAND.)
SALISBURY V. MORRICE.—MOHRICE V. SALISBURY.
His HONOUR was occupied the whole day with the argu-
ment in these cases, which came before that Court upon
cause and cross-cause. The cases are totally devoid of
interest, except to the parties concerned. The argu-
ments had not concluded when .his Honour rose.
(Before Vice-Chancellor Kilecier BRUCE.) '
SEARLE v. COLT AND OTHERS.
His Hoemun delivered, judgment in this cause, which
stood over froth lest week.
The plaintiff was the personal representative of An-
drew Searle, who resided in. Norfolk, and died in 1835,
and in that character sued as. an equitable incumbrancer
on the life-estate of the defendants, Mr. and Mrs. Colt,
at Bushbury, in Stafford, that life-estate being derived
under a marriage settlement dated 1804, by which
Mrs. Colt conveyed this property, originally her
own, in fee simple, to two trustees, upon trust
for her separate use during her life. Of those
trustees, the defendant Sir John Colt was the only sur-
vivor. The incumbrance under which the plaintiff
claimed was a deed, dated April 1810, by which, for
valuable consideration, an annuity of 122/. a year was
granted by Mr. and Mrs. Colt to Andrew Searle, charged
upon the estate at Bushbury; and for the better securing
that annuity, the estate was by the same deed conveyed
by Mrs. Colt and her husband to a person named
Thorpe. The object of this suit was to make avail-
able the incumbrance of 1810—to ebtain payment of
the annunity and its arrears (the bill alleging the
annuity to be in arrear since 1820)—to receive
the rents of the Bushbury estate, and to render invalid,
on the gronnd of want of due enrolment under the sta-
tute, an annuity deed by which Colt and his wife, in con-
sideration of a sum of 1,600/., granted a certain annuity
to Thomas Abraham, chargeable on the estate at Bush-
bury. Of this Thomas Abraham, who died in 1835, the
defendant, Robert Abraham, was the personal repre-
sentative. In virtue of that deed Thomas Abraham took
possession of the Bushbury estate in 1820, from which
period he continued to receive his annuity till his death,
when the defendant, Robert Abraham, as his adminis-
trator, took possession of the estate, and continued
to hold it undisturbed till the filing of the present
bill in November, 1839. It leas net suggested by the
plaintiff that his title, or that of Andrew Searle; was ad-
id:inieeaisfmtettretisudactationitr recognised by either of the Abrahams. This
state of pleadings and facts was, in his Honour's opinion,
iieeAmboirfgahhthtaernb!ie,l atlihvnetiiitraptl'esavince
traisfiteh.,emtieunistfithrmsruietesicpeesteTdot
fbt,yoottrhhaee.
strength
opinion that he would not be doing justice if he detained
His Honour, therefore, was of
Abr
y
on
d
ttoly afhl
appeared
Ergttbestsed.h:
ioifronTiefi
-ehtt htehi trneib Court,ieelcause
ssies
aaaigssnas4
dismissed
Lndhs etaccordingly,thessui rrjiisurviving
hnagns
trustee of the marriage settlement, his Honour also dis-
missed,but without prejudice to a new bill being filed against
(Sir John Colt) so asked,
han, i lesta, ghmharoi
Tooimduoef
nn his
own,

him, if the plaintiff chose to do so. That liberty was
not, however, to apply in the case of Abraham. Against
Mr. and Mrs. Colt the plaintiff might proceed in the
usual way, if there was any difference between them.

a paralytic stroke, which had impaired her in-
tellects, and one James Benson, - a relative of her
husband, had assisted her in the management of her
property. The attorneys for the plaintiff' in the present
suit had applied on behalf of James Benson to the de-
-fendant to give up the dc. tments to him; defendant had
refused, conceiving that James Benson had no authority
to demand them. In consequence this action had been
brought. Defendant had seen plaintiff, and had offered
to give up the documents to James Benson, if she were
desirous he should do so; but plaintiff said her desire
was that he should still retain them ; and she further
stated, that she had never authorised the present action.
Mr. Justice PerrEsoN—Did the defendant make any
communication to the attorneys after his interview with
the plaintiff ?
Mr. MILLER—It is not so stated in the affidavits, my
Lord.
Mr. Justice PATTEsoN—That had better be done, and
then you can renew the application.
ALEXANDER V. NATHAN.
In this case a rule had been obtained on behalf of the
defendant by Mr. Bagley, calling upon the plaintiff to
show cause why judgment should not be entered, as in
case of a nonsuit, for not proceeding to trial, issue hay-
ing been joined in the month of January last.
Mr. HILL this day showed cause against the rule, and
said that the'defendant was an insolvent debtor, who had
taken the benefit of the Act, but had been remanded for
twenty months for fraud. The debt for which this action
had been brought was for 30a., money lent, and was in-
cluded in the schedule ; and the action had been brought
for the purpose of securing the detention of the defendant
for the time ordered by the Insolvent Court. He sub-
'flitted that, under the provisions of the Act of Victoria,
' abolishing arrest on mesne process, the plaintiff was not
bound to proceed, and submitted that the rule must be
discharged with costs.
Mr. BAGLEY, in support of the rule, contended that
the plaintiff, having known of the defendant's having
taken the benefit of the Act, had no right to take any of
these proceedings, after such a fact had come to his
knowledge, and therefore submitted that the rule mast
be made absolute.

Justice PATTESON said that there seemed to be
some contradiction in the law on the subject. By the
4lst section it was enacted that no party should be dis-
charged out of custody by judgment in case of a non-
suit until such time as he should have remained in
prison the time ordered by the Court, and there seemed
to be some contradiction between that and the 85th sec-
tion. The defendant, however, he was of opinion, had
-no-right to force the plaintiff on, and Under the circum-
stances he thought, perhaps, the best thing would bo to
consent to stet procesius.
Mr. BAGLEY would eonsult:hls client on the subject.