The Sun.
London, England, 1834-11-06 00:00:00

COURT OF CHANCERY, Nov. 5.

STIERRAT V. BENTLEY.
This was an appeal from a decree of the late Master of
the Rolls on further directions. The question in dispute
arose out of the construction of a will of a very singular
description made by a person named Thompson, with the
assistance of the village schoolmaster. The property, real
and personal, was worth about 4,0001., and the testator
commenced by bequeathing the whole of it to his wife, her
heirs, executors, administrators, and assigns, for ever, and
at the same time giving her a power of appointment in the
event of her dying before him. Notwithstanding this ab-
solute and unprecedented bequest, the testator, in a subse-
quent part of the will, divided the same property at his
wife's decease among his relations, and named a Mr. Allen
as residuary legatee. The wife survived her husband, and
married the defendant, and at her death the legatees claimed
the property on the ground that she took only a life estate,
the latter part of the will being construed as overriding the
positive bequest of the first part. The Master of the Rolls,
acting on the recognised principle of the. Court, that where
there are contradictory injunctions in a testamentary paper,
the latest are always to be taken as the intention and mean-
ing of the testator, decreed in favour of the legatees, and
against this decision the representatives of the widow of the
testator now appealed.
Mr. TINNEY supported the appeal.
Mr. TRIsLovE, for one of the parties, said that the
will was, he understood, drawn up by the schoolmaster,
and that he had a great number of documents of the same
kind.

The LORD CHANCELLOR was glad to hear that the pro-
fession escaped the imputation of having produced so much
expensive litigation. His Lordship hoped, however, that
if the schoolmaster proposed to continue his practice in
this department, he would, at all events, get some one to
teach him the A, B, C, of his new profession, for he had not
yet got even so far as that.
Mr. ROLFE and Mr. JACOB having been heard in support
of the decree, _

His LORDSIIIP should take a day or two to consider the
arguments adduced in favour of the appeal, although he
confessed he had a strong leaning in favour of the decision
of the Master of the Rolls.

VICE-CHANCELLOR'S COURT, Nov.s.

THORPE V. POMFRET.

This suit arose out of the marriage of Dr. Thorpe, the
preacher at the Lock Chapel, Grosvenor-place, with the
Countess of Pomfret, the widow of the late Earl, the ob-
ject being to make the infant children of the Earl wards of
Court.

Mr. KNIGHT stated that this petition of the plaintiffs,
Dr. Thorpe and Lady Pomfret, prayed, in addition to the
usual reference as to maintenance, that two of the infant
children of the late Earl might be permitted to reside with
Lady Pomfret, their mother, and that the present Earl
might be permitted to spend his vacations with her. Lord
Pomfret died in June, 1833, leaving four children, the pre-
sent Earl now of the age of nine years, Lady Anna Maria
Fermor, of the age of six, Lady Harriet Fermor, of the
age of four, and Mr. Fermor, of the age of two years. His
Lordship made his will in 1830, of which he appointed
Lady Pomfret sole executrix and residuary legatee, and sole
guardian of his children during her widowhood ; but should
she marry again the guardianship was to devolve on Sir F.
Shuckburgh, Mr. Penn, Mr. John Granville Penn, and
Mr. Borough, her Ladyship's brother. This will was con-
firmed by a codicil made a little after the birth of the
youngest child. On the 17th of May last Dr. Thorpe and
Lady Pomfret were married, and Dr. Thorpe communicated
the event a few days after to the guardians. On the 12th
of June Lady Pomfret received a letter at Cheltenham
from Messrs. Currie and Co., the solicitors of the guardians,
announcing that the latter had taken upon themselves the
guardianship of the infants, and had taken possession of
the family residence, and of all the property in it, and
had come to the determination of making the children
wards of Court. At the same time Sir F. Shuck-
burgh and Mr. Borough set off for Easton, where they
closed the house, and brought with them to London
the two children, Lady Harriett and Mr. Fermor, the
latter then not eighteen months old, and placed them with
their grandfather and grandmother, Sir Richard and Lady
Borough, of Portland-place, where they have ever since
continued. An affidavit by Lady Pomfret stated that she
entertained serious objections to the children being under
the care of Lady Borough, as she felt convinced her late
husband would have been much averse to such an arrange-
ment, for he had been in the habit of using frequent and
strong expressions of alienation and dislike in respect to
Sir Richard and Lady Borough. Dr. Thorpe swore he
and her Ladyship were in receipt of an income of 4,000/.
a year and upwards, and offered to educate the younger
children at his own expense. He also stated that he had
been but once before married, and that his youngest child
was twelve years old, and that his three step-children were
settled in the world. A lady proved that she saw Lady
Harriet Fermor without any person to attend her in the
garden at the head of Portland-place, where the person
with whom she was sent had lost sight of her. The
guardians, in their affidavit, alleged that they acted
under an imperative sense of their duty to infants
whom they were unwilling to leave under the con-
trol of Dr. Thorpe ; and that they were always wil-
ling to allow Lady Pomfret every intercourse with her
children at her mother's house. The affidavits of Sir
Richard and Lady Borough stated that they never doubted
of the affections of their daughter till her second marriage.
In one of his letters Sir William said he received the news
of the intended marriage with astonishment and dejection,
and requested his daughter to defer it till two years at least
had elapsed. Her Ladyship replied that she was now a
widow of thirty-two or thirty-three, and competent to act
for herself. They admitted that they were very averse to
the marriage, and that they told her the birth and parent-
age of Dr. Thorpe. Another witness spoke to the late
Lord Pomfret's concerns ; and that Lady Pomfret went to
the Lock Hospital, and said that Dr. Thorpe was invited
to his Lordship's house solely to gratify her Ladyship. This
was denied by Dr. Thorpe and Lady Pomfret ; and the
latter swore that any marriage of hers would be disagree-
able to her parents ; and, in fine, Dr. Thorpe stated he had
no objections to statements as to his birth and parentage,
provided they were true, as they were highly to his credit,
and equal, if not superior, to Sir Richard Borough's. Upon
these allegations it was submitted that the trustees had ex-
ercised their legal power in a rigid, harsh, and severe man-
ner, by abstracting children of such tender age from their
mother's care.
His Honour, without hearing Sir E. Sugden on the other
side, did not see any sufficient case to induce the Court to
interpose. There was an evident willingness to settle the
matter with the greatest amity towards Lady Pomfret.
There was no case for present interference with the un-
questionably legal right of the guardians. But is it neces-
sary, said his Honour, to make any provision as to future
maintenance ?

Mr. Wigram replied the will was explicit upon the sub-
ject, and suggested that perhaps Lady Pomfret would con-
sent to deliver up the child at present with her, 43 it would
save the necessity of any application.
It was understood the petition was to stand in the paper,
to give an opportunity for some adjustment out of Court.

COURT OF KING'S BENCH, Nov. 5.

THE KING V. THE JUSTICES OF KENT.

Mr. PETERSDORFF moved for a rule to show cause why
a nzandanzus should not be issued to the Justices of Kent,
directing them to insert two names in the list of the inha-
bitants of the parish of Tenterden, returned to them as
elected to the select vestry.—Rule granted.

THE JUNG V. ALLDAY.

The defendant in person, who was understood to describe
himself as the proprietor of the Birmingham Baths, ap-
peared to move for a new trial in this case, which had been
tried at the Spring Assizes for the county of Warwick be-
fore Lord Chief Justice Tindal. He had been tried for a
libel.
The COURT inquired why he had not moved at an earlier
period ?
The defendant said it was because he had only just
come out of prison, where he had been confined for another
offence.
The COURT thought that they could not now entertain
the motion.
The defendant pressed it upon them, and said that he
had lately conversed with three of the Jury, who told him
that the foreman had not returned the proper verdict, as
they were not all agreed.
Lord DENMAN said the Court could not receive such a
statement.
The defendant had an affidavit from those Jurymen, and
offered to produce it.
Lord DENMAN said the Court could not hear it read.
The jurymen ought to have expressed their opinions at the
time. _ _

The defendant claimed to be heard, and asked for justice.
Mr. Justice TAUNTON said that there were certain rules
in the administration of justice which the Courts were
bound to observe, and from which they could not swerve in
this instance more than any other.—Application refused.

ISAACSON V. MENNELL.
Mr. KELLY moved for a rule to show cause why the
verdict given for the plaintiff for the sum of 471. should
not be set aside and a nonsuit entered, or a new trial
granted. This was an action for goods sold and delivered.
The plaintiff was a dealer in corn and flour at Newmarket,
and the defendant was a gentleman who, during 1829 and
1830, kept at Newmarket a place called Phantom Cottage.
In 1830 he removed and let the place to Lord Mount-
diaries, and did not return till 1834. A man named Price
obtained the cottage at a rent of .50/. a year, after Lord

Mountcharles had left it, and trained horses for Lord
Mountcharles, and also carried on business as a trainer for
other gentlemen. The case was tried before Mr. Gaselee,
at Cambridge, and the question left to the Jury was, whe-
ther there was any contract between the parties, and whe-
ther Price was a bona fide tenant of the defendant, or was
only acting as his servant. This was a misdirection of the
Judge. Evidence was, besides, improperly admitted.
The COURT thought that the Jury had been properly
directed, and refused the rule on that point ; but upon the
other the rule was granted.