The Sun.
London, England, 1834-11-20 00:00:00

KENNEDY. V. KIRBY.

This was an appeal from the Master of the Rolls. The
'plaintiff is, an aged lady, living at Ipswich in Suffolk, and
the defendant is an eminent manufacturer of the city of
London, who lately filled the office of Sheriff. Some time
in 1826 the plaintiff employed an attorney named Bostock,
then living in George-street near the Mansion-House, and
in extensive practice, to draw up her will. In consequence
of being so employed Bostock discovered the amount of her
property, and finding that she had 9,000/. in the Three per
Cent. Consols, he shortly afterwards proposed to her to in-
crease her income by authorising him to lend this money on
mortgage of real property, at an interest of five per cent.
This change, according to his representations, was to make
an addition of 180/, a year to her income ; and, seduced by
the brightness of his promise, and his assurances of the va-
lidity of the security, she ultimately gave him a power of at-
tornov to sell out the stock, and dispose of it according to
the plan proposed. The money, as he represented, was
accordingly advanced on mortgage in two sums of 6,000/.
and 3,0001. No inquiries were, on her part made into the
titles or the validity of the securities, and the interest was
regularly paid until 1829, when some slight delay took
place, and the plaintiff becoming uneasy, directed Bos-
tock to take measures for calling in her principal.
Bostock promised compliance, and it then appeared that
the 3,000/. had been lent to a person named White, who
was engaged in a building speculation on some land belong-
ing to Bostock, in the neighbourhood of Kennington. A few
days after this desire on the part of Mrs. Kennedy to call in
her principal, Bostock proceeded to Ipswich with a deed of
assignment, by which Mrs. Kennedy consented to assign
her mortgage to him on concrtion of receiving 3,042/. prin-
cipal and interest. This deed Mrs. Kennedy signed in the
presence of witnesses, and she also, as it was alleged, in ig-
norance of the consequences, wrote her name on the back
of the deed in the presence of the same witnesses. Above
this signature Bostock, on his return to London, placed a
receipt for the payment of the mortgage money, and, having
previously become possessed of all the interest which White
had in the property, he was then provided with a good title
to the estate at Kennington, and shortly afterwards pre-
vailed on his father-in-law, Mr. Kirby, to lend him the sum
of 2,0001. on it, by way of mortgage. Bostock, in the course
of a few months, absconded, and was Made a bankrupt. The
plaintiff, on discoverinc, the fraud practised on her, filed a
bill for the purpose of obtaining a preference- over Kirby in
the payment of her mortgage on the property, which she
contended to be still in force, as the signature to the pay-
ment of money on the assignment had been obtained by
trickery and fraud. The question was argued before the
Master of the Rolls, who declared that the defendant Kirby,
although perfectly innocent of all connection with the frauds
of Bostock, had yet direct as we'l as constructive notice of
the defect in the deed of assignment, and that the plaintiff
must, therefore, be: declared to have a priority of claim.
Against this decision the defendant now appealed.
The SOLICITOR-GENERAL was now heard in support of
this decree.

Sir E. SUGDEN followed in support of the appeal.
The further argumenti are to be heard to-morrow (this
day).

His Lordship sat until within five minutes of five o'clock.

COURT OF KING'S BENCH, Nov. 19.

THE KING V. THE RECTOR AND VESTRYMEN OF ST. JAMES'S,

WESTMINSTER.

This -,Tras a question upon the validity of a rate. The
Earl of Burlington had been rated as the owner of a house
and garden. in Piccadilly, and complained that the rate ha-
posed upon him by the vestry was too high, as the vestry
had proceeded on the principle of calculating the amount
to which his property there would be liable if fully built
upon. The Noble Earl appealed against the rate ; and two
Magistrates, before whom the appeal was heard, decided on
reducing the calculation of the value of the premises to the
sum of 1,6501., it being stated that about 1,600/. was the
highest sum at which they would let to any one person in
their present condition. The vestry contended that this
rate was too low, and insisted that the Magistrates had no
power to reduce it ; and the question was brought before
the Court on a motion for a certiorari.
Sir J. SCARIATT and Mr. ROGERS contended on behalf
of the Earl of Burlington that the Magistrates did possess
such a power under the authority of the local Act, 2
Geo. 111.

The ATTORNEY-GENERAL and Mr. CLARKSON, on be-
half of the parish, contended that to allow two magistrates
to reduce a rate regularly imposed by the vestry was to
give them a power equal to the Quarter Sessions.
The COURT thought that the words of the Act were too
clear to have any doubt as to the construction which must
be put upon them. The magistrates most clearly had juris-
diction, and their decision therefore was lawful.
Rule for a certiorari discharged.

BAIL COURT, Nov. 19.

A rule had been obtained to show cause why the pro-
ceedings in a case to tax costs should not be set aside under
the following circumstances :
Some disputes had arisen at the late election for North-
ampton, in which the Rev. Mr. Tarplin was a party, and
actions were brought against two individuals nnmed Pack
and Russell to try a right of way. These actions were
withdrawn, in consideration of the Rev. Gentleman being
desirous to preserve the peace of the parish. It was un-
derstood that there the matter ended, but the Rev. Gen-
tleman bad, though it was supposed-no costs would be
asked, applied three days before the conclusion of Trinity
Term to the Court for leave to tax the costs. It was now
desired to set aside the rule on the ground that the Rev.
Gentleman had consented to waive all right to costs.

Mr. Justice LITTLEDALE doubted whether the rule
could be maintained, but at all events the Learned Coun-
sel, he said, might take it.
Mr. Sergeant TALFOURD moved for a mandamus against
the Rev. Mr. Lee, vicar of a parish in Cambridge, to com-
pel him to deliver up certain parish books, which he had
obtained from the overseers as chairman of a committee for
examining the parish accounts, at which he refused to de-
liver up. They comprehended the rates from 1818 to
1833.—Rule granted.
Mr. AUSTIN moved for a certiorari to remove an indict-
ment for compounding a penal action, on the ground that
a fair and impartial trial could not be had at Norwich,
the city where the offence was alleged to be committed. It
was stated by the Learned Counsel that bribtry had been
alleged at the last election against certain parties. In the
present case one of the defendants was aged sixty-five, and
is a person of great respectability, and the other is an at-
torney, equally respectable. Notice of trial had been given
at the Sessions. In Norwich political disputes ran very
high. The Mayor and many of the Aldermen were warm
Partisans, as were the majority of the Common Council ;
tl:e prosecutor was an attorney, and member of the Coun-
cil, and so was his partner ; the Jurors were similarly af-
fected as respected politics, and were adverse to the de-
fendants, Messrs. Cozins and Coleman. Placards had been
circulated against them, and paragraphs inserted in the
newspapers imputing to them that they were extortioners
and common informers. Two or three days before the bill
of indictment was preferred the party met, and every means
was resorted to in order to prejudice the defendants. The
case was set down for trial at the next Sessions, and unless
the Court granted a certiorari, justice, probably, would not
be done.

Mr. Justice LITTLEDALE directed the Learned Counsel
to take a writ.

A gentleman in Court, supposed to be the prosecutor,
had no wish to oppose the application.
Mr. Justice LITTLEDALE observed that the rule was a
matter of course.

COURT OF COMMON PLEAS, Nov. 19.