The Sun.
London, England, 1841-11-08 00:00:00

LAW INTELLIGENCE.
COURT OF CHANCERY, Nov. 6.
The Lord Chancellor took his seat in his Court at
Westminster to-day shortly after ten o'clock.
rN THE MATTER OF SWINDELL, A LUNATIC.

The further arguments in this lunatic petition, which
were opened yesterday, were resumed this morning, and
occupied the Court the whole day. The object of the
petitton was the removal of the Committee, on the
ground of misconduct. We refrain from entering further
into the particulars of the case till the arguments are
concluded.

VICE-CHANCELLOR'S COURT, Nov. 6.
(Before the VICE-CHANCELLOR of England.)
Cause petitions occupied his Honour the whole morning.
(Before Vice-Chancellor KNIGHT BRUCE.)
His Honour was engaged the entire day in hearing the
arguments in a cause which presented no feature of pub-
lic interest.

All he contended for was, that being valid or not, in
a Court of Law or the Ecclesiastical Court, the juris-
diction of a Court of Equity remained entirely
uncontrolled to deal with the parties who took
benefits under an instrument, which benefits were
obtained by fraud, and would deem such individuals
trustees of the individuals so defrauded. The Learned
Gentleman then cited Barnsley v. Powell, Ist Vesey,
119 ; Dugal v. Horne, 9, Simons 540 ; Kennel' v.
Abbot, 4 Vesey ; ex-parte Wallack, 4 Brown ;
Marriott v. Marriott, Ist Strange, 166 ; Seagrave v.
Curl, Ist Vesey, 157; and Wilford v. Buckley, 2d Clarke
and Venelly, 103. Unless his Lordship would disaf-
firmEthe doctrine laid down in these cases, he
could not decide that the parties procuring the revo-
cation of this instrument by fraud could be considered
otherwise than as trustees. With respect to the
demurrer for want of parties the bill sought no
administration of the estate, but simply to
leave the ninth codicil inoperative. It prayed
that the will might be established and carried
into execution, and that plaintiff might take the benefit
given to him therein. It merely repudiated the 9th co•
dicil. He hoped, therefore, his Lordship would overrule
i the demurrer. _ _ _

ROLLS' COURT, Nov. 6.
MAIDEN V. BADCOCK.
Lord LANGDALE, after hearing Mr. Pemberton in re-
ply to this case, which was reported in our paper yester-
day, said that he did not think he should be satisfied to
make an order without further information as to the de-
crees and directions of the Court in the suit. It ap-
peared that in 1791 a testator named Smithers
charged his estate with certain debts and an-
nuities, and, subject to the payment of these,
devised it to his son, with remainder to the plain-
tiffs, if his son should die before attaining the
age of 21 years. Testator died, and his son also
died before attaining the age of twenty-one years A
bill was then filed to administer the trusts of the will,
and for the purpose of procuring payment of the bequests,
to those who were entitled under the will, and Mr. Dray-
son was appointed receiver of the rents and profits of the
estate in the year 1806, and was continued as receiver
by a decree made in February, 180 g. In his life-time
Mr. Drayson passed two accounts, and paid into Court
the money chargeable to him on the balance. After his
death his executor and executrix applied to the Court
for leave to pay into Court the balance due from the
roceiver, which application was made with full know-
ledge of his assets ; and upon their petition an or-
der was made for an inquiry, by which it appeared
that the sum of 992/. was due from them on account of
the receiver. This report was made in 1812, and the
Master afterw irds made his general report, and when
the case came on for further direction it appeared that
Mr. Bice, one of the persons entitled to the estate sub-
ject to the charges, was in possession of the estate,
but what provision was made for payment of the charges
did not appear. He (his Lordship), therefore, wished to
see the decrees to know what was done. But it appeared
to him that the charges provided for, and intended to
be paid, still subsisted, and the money was due from the
executors of the receiver which they were entitled to pay.
There was then subsisting the order to pay
into Court the sum of 992/., and unsatisfied claims to-
wards the satisfaction of which this sum was liable. In
this state of things all the persons concerned in the case
seemed to have abandoned attention to it. Mrs.
Saunders, one of the persons entitled to an annuity
under the will died in the year 1829 ; the conduct
of the cause was given to the petitioners in 1830,
and in 1841 they discovered that the sum of 9921. which
ought to have been paid into Court in 1812, had never
been paid. It was said that it was extremely hard to
come upon the parties after so great a length
of time, but was there ever a time in which the
executor did not know the state of the case ?
It was matter of consideration over and over
again, and instead of considering what it was their
duty to perform the executors and his solicitor seemed
to have considered it their duty to enter into an arrange-
ment with the tenant for life, and to set off this sum in
part of payments made to him. If the receiver had taken
upon himself to see that the charges on the estate were sa-
tisfied, and had then thought fit to make the payment there
might be no reflection on him ; but he had thought fit
to make this arrangement without regard to those who
had prior claims. He (his Lordship) should not give a
final opinion, but he was strongly impressed that the
money must b'e brought into Court to satisfy those
claims.

Mr. KINDERSLEY having replied at length,
Lord LANGDALE said the case was one of extremely
great importance, though a very short one. He wcuid
look into the authorities cited, and order the cause to
stand on the paper for Friday next.

COURT OF QUEEN'S BENCH, Nov. 6.
PHILIP JOHN MILES V. BOUGH.

This was an action brought by the plaintiff as trea-
surer of the Clifton Suspension Bridge Company, of
Bristol, to recover the amount of calls upon certain
shares in that Company. The case was tried before
Mr. Baron Maule at the last Gloucester Assizes, and a
verdict had for the plaintiff for 171.105. _

ALLEN V. M'PHERSON.

Mr. Sergeant BOMPAS now moved for a rule to show
cause why the verdict should not be set aside, and a non-
suit entered, on the ground of the admission of improper
evidence. The Company was formed some years since
for the. purpose of carrying into effect a plan for
building a suspension bridge across the river Avon
below Bristol, to the opposite shore of Somerset. A
sum of money had _ been originally bequeathed by
a gentleman for that purpose, which having accumulated
to between 10,000/. and 15,000 L, an Act of Parliament
was obtained, and a Company formed, with power to
raise money upon loan or otherwise. At the trial the
books of the Company were produced, but the resolution
authorizing the calls was not signed by the Chairman as
it ought to have been. Now, in the case of the South-
ampton Railway v. Richards, the same point bad been
raised, and it was decreed in that case that the books
should be signed by the Chairman at the time when the
meeting was held at which the calls were authorized.
Another objection was that there were no Trustees
within the meaning of the Act, as it was not proved that
they had been regularly sworn.
The COURT thought the Learned Gentleman was en-
titled to the rule, but as the question was one of some im-
portance, they would see Mr. Baron Maule in the first
instance.

Mr. KINDERSLEY (with whom was Mr. Russell) stated
that this case came before the Court on demurrer, fu'r
want of equity, and also, for want of parties. The
bill was filed by Robert Allen and others, which
prayed that he might be entitled to a legacy be-
queathed to him by a codicil in the will of John
Allen, which had been revoked by fraud ; and that the
parties profiting by such fraudulent revocation might bo
appointed trustees of the legacy for him. It alleged
that the testator, John Allen, in the year 1824, made his
will, and thereby gave large bequests to his daughter,
Susannah Evans, and made her his residuary legatee, and
appointed Messrs. ll`Pherson and Tomkins execu-
tors. That he subsequently made nine codicils to
his will, by which, among other legacies, he gave certain
legacies to the plaintiff, and by the sixth of which he gave
to plaintiff and his children one-fourth part of his estate
and effects. It further stated, that soon after the execution
of the sixth codicil Susannah Evans was informed of it by
ono of the attesting witnesses, and in consequence became
extremely jealous, and entertained great dislike to the
plaintiff ; also that soon after the execution of this co-
dicil the testator became very infirm and unable to
undertake any business requiring serious attention, and
that Susannah Evans acquired great influence over the
testator, and used it to acquire the whole or as much as
possible of the property to herself and Wm. Allen, an
illegitimate son of the testator, whose mother he after-
wards married, there being a secret understanding be-
tween them as ta sharing testator's property. It also
stated that the testator, when about to marry the mother
of William Allen, received an anonymous letter, dis-
suading him from doing so ; which Susannah Evans
and William Allen represented to testator was
written by the plaintiff, and used to preju-
dice testator ngainst the plaintiff, for his al-
leged opposition to testator's marriage; and it fur-
ther stated that Susannah Evans, with a view to obtain
a revocation of this codicil, urged testator to send Wil-
liam Allen into Somersetshire to inquire into the cha-
racter and designs of plaintiff and his family,
and that William Allen was accordingly sent, and
remained there two days, but did not make
bona fide inquiries respecting the plaintiff, and returned
on the 2d October to the testator's house, and made a re-
port to him prejudicial to the plaintiff ; and that on the
following day testator made another codicil to his will,
whereby he revoked the bequests lie had given to the
plaintiff; and substituted for them a devise of
8001. stock to Wm. Allen, Nath. Bartlett, and Susannah
Evans in trust, to pay the income to the plaintiff for
life, or until he charged it with any incumbrance, after
which it was to go to his children. John Alleo, the
testator, died in 1837, and the will was ad-
mitted to probate after an attempt on the part
of plaintiff had failed to prevent probate as to
such codicil. The Learned Gentleman said the
first observation was, supposing no observation to be
made on the number of allegations, but simply that the
testators intended, by a former testamentary instrument,
certain benefit to the plaintiff, which, by reason of repre-
sentations made fur the purpose of inducing him to alter
it, and which were false and fraudulent, he revoked,
and the party who induced the testator to
alter his opinion with respect to the individual,
and upon that altered opinion took all the benefit
intended to the other party. Of course the Ecclesiastical
Court and no other would have jurisdiction to judge how
far that which was propounded as the will of the
testator was to be admitted to proof, and no
doubt if a case was made out that the testamentary act
was done by the testator in consequence of fraud, that
Court would have jurisdiction to decide whether that was
to be treated as a testamentary act of the testator or not.
But in this case, the Ecclesiastical Court, after all
the evidence had been laid before it, was of
opinion that the testamentary act of the testator
was a valid testamentary act, and was of opinion that
the codicil in question expressed the last will and in-
tentions of the testator. What, therefore, was asked of
his Lordship was, after the attempt had failed in the
Ecclesiastical Court to make out a fraudulent intention
to depart from the general rule of the Court, that it
was limited to the construction of the will, and

to invalidate the testamentary instrument which had been
pronounced valid by the Ecclesiastical Court. No case
could be adduced to show that the Court had ever ex-
ercised such jurisdiction, and therefore he felt assured
that his Lordship would nut make a decision which
would overturn the established principle of the Court
with respect to its jurisdiction. With respect to the
demurrer fur want of parties by the will, Messrs. M'Pher-
son and Tumkins were appointed trustees, but by the
last codicil, William Allen, Nath. Bartlett, and Su-
sannah Evans, were appointed trustees for the benefit
of the plaintiff. How then was it possible the suit could
proceed without having Mr. Bartlett as a party to it?
Moreover the allegation as to testator's state of mind,
as to the influence used upon him, and as to
the circumstances under which he was induced to make
the ninth codicil, applied to every individual affected by
it ; but these parties, whose interests were to be affected,
were not brought into Court. He submitted, therefore,
on these grounds. that for want of parties, as well as for
want of equity, the demurrer must be sustained.
Mr. PEMBERTON (with whom was Mr. Joliffe) said, the
cause, as it stood before the Court, rendered it perfectly
clear that there was no want of equity. What was the
principle of law on which the bill rested ? Not that
his Lordship was to control the decision of the Eccle-
siastical Court. Tho bill alleged the testamentary act
of the testator, and that it was a valid instrument,
and properly admitted to probate ; but it said
there were circumstances of equity which should
induce the Court to convert the individual who
had obtained a bequest by fraud, into a trustee for
that individual, who by that fraud had been deprived
of it. It asked that the plaintiff might be
declared entitled to the several bequests given to or
intended for him by the testator, notwithstanding the
revocation of such bequests by the 9th codicil,
and that the defendants might be declared trustees to the
extent of such bequests. Now, was it or not the principle
of a Court of Equity that where a testamentary paper
was to be adhered to, having been revoked, or to be
acted on, having never been called into existence, through
• fraud, the Court would deal with these instruments
as
still subsisting instruments for the benefit of the
party deprived by fraud, and against the party
who commited the fraud ? lie should prove that it
was the principle of the Court so to act.
He should prove, by a number of cases, that where a
partytlegacy
ti
le intendeddefrauded,
frauintention,d e to an individual was not in a will
through fraud, the Court would defend the
notthat dealif
a partyv,ith i
‘t, a andsi
i though
becauseu induced
that
Ecclesiastical e ff e c
t wo u
Court d b e
couldgiven
itd wtou rnevootkie n
t e existenceraeywei
cl
tihey fraud
e
Court would give effect to it, as if it had not been re-
voked. These principles were familiar to every
:th
of the individual benefited by and
the
person conversant with the rules of equity.
What were the authorities necessary to produce ?

THE SUN, LONDON, MONDAY, NOVEMBER 8, 1841

peared that one of the Directors, named Clift, •
being made aware of the fact of the premium not having
been paid, had written on the policy the word `` lapsed"
in pencil; but when Mr. Rapallo called for payment, the
actuary being then in the country, and the director Clift
having no recollection of the facts at the moment he paid
the sum of 9971. 10s. to Mr. Rapallo on behalf of Mr.
Solari, the defendant including in that sum 1971. 10s.
upon the policy of the 3d of September, 1836, which
had lapsed. Under ►these circumstances his Lordship
was of opinion that the plaintiff was not entitled to reco-
ver, because the money had been paid, they having at
the time full means of knowledge.
Lord ABINGER—NO full knowledge, because the evi-
dence of one of the clerks in the office was, that he had
not only mentioned the fact several times, but, according
to the practice of the office, the lapsed policy was carried
through five different books.
Mr. THESIGER—There was no doubt they had the
knowledge at the time the policy lapsed, but the circum-
stance was forgot at the time of the payment of the
money, and the question was, had they not a right to
recover it, it having been paid under an evident mistake.
The law upon the point was very obscure. It was laid
down that all monies paid by mistake, but where the
party had a full means of knowledge, were not recover-
able; but he could find no authority for saying that
where a party has the means of knowledge, but has not
the actual knowledge at the moment of payment of the
money, is precluded from recovering. The Learned
Gentleman went at considerable length into the cases of
Byas v. Dickenson, Ist term Reports, 285; Bilby and
Lumley, 2(1, East 649; Cox and Prentice, 3d, Manic and
Selwyn, 344; Wilkinson and Johnson, 3d; Barnewell
and Cresswell, and Mills and Duncan, 6; Barnewell and
Cresswell, 671; and trusted that as the law was so ob-
scure, and as the point in question was of so much im-
portance, the Court would see fit to grant him a rule.
The COURT granted a rule to show cause why the ver-
dict should not be entered for the plaintiff for 1971. 10s.