The Sun.
London, England, 1834-08-06 00:00:00

'`COURT OF CHANCERY, AUGUST 5.

The LORD CHANCELLOR gave judgment at the rising of the
Court in the following cases :

ROBERTSON V. THE MARQUIS OF LONDONDERRY.

The LORD CHANCELLOR said—l am exceeding sorry that I
have found, upon looking into the authorities which I at one
time, thought I should not be bound by, and under the peculiar
circumstances of this case I have strained very much to free
myself from them, to find myself so far bound by these autho-
rities as to be underthe necessity of deciding that the building
contract is one that I have not the power to decree a specific
performance of. It is therefore with the, greatest reluctance
that I am obliged to affirm his Honour's judgment--with a re
luctance equal to that his Honour felt in pronouncing it ' • at
the same time, while affirming that judgment, I am clearly of
opinion that Mr. Robertson ought not to pay the costs of the
case below any more than those of the appeal here. lam per-
fectly certain if, instead of my being the Judge, the intimate
friend of Lord Londonderry, Sir Henry Brown, had sat in this
seat, he would have felt the same reluctance which I feel to
impose any one shilling of costs on Mr. Robertson after the
treatment he has received. In all my experience in Courts of
Law, longer than in Courts of Equity, in the class of indivi-
duals among whom .I have either seen justice administered or
have had occasion to administer it, I have not known one in-
stance in which the strict letter of the law had pressed
harder than it has upon this unfortunate man, the appel-
lant. He was an ignorant man ; he was alone ; but
the other party was powerful, surrounded by friends,
and assisted by a skilful and experienced professional
adviser of great respectability and firmness, and who, if he were
sitting here, would come to the same conclusion as Sir Henry
Brown shows by the correspondence that he would have come
to, and to which I have come. Ido not in the least blame
that professional gentleman ; but I think that he ought to have
shown more firmness towards his client—his misguided client.
No costs are to be paid by Mr. Robertson below, no costs are
to be paid here, and I shall look most narrowly into the re-
sidue of the case : I mean that part which regards matters
other than the building contract, in order that I may, if pos-
sible, get over or break through the trammels with which the
forms of the Court fetter me, and prevent me from doing sub-
stantial justice, and I feel, if I ever felt in my life, that in this
case I am pret'ented by the forms of the Court from doing
substantial justice. The decree of the Court below must ac-
cordingly be affirmed, but not with costs, and the deposit must
be returned.

THE ATTORNEY-GENERAL V. HENCHMAN.

His LORDSHIP said that the question in this case arose prin-
cipally between Mr. Henchman, the devisee of a copyhold
estate which he took under a will, and the Crown, the Lord
of the Manor not having put in any claim, and it related to a
sum of 2,0001. which was charged on the estate devised, and
which was to be raised within one month after the testator's
death, and which the testator had treated as reality. The
Master of the Rolls had decided that the devise had lapsed to
the Crown, not by right of escheat, but that the Crown took it
by force of the Royal prerogative as bona vacantea. He (the
Lord Chancellor) could not follow with his Honour's decision
on that ground, inasmuch as it would be absurd to hold that
when there was a tenant in possession an estate was in the
holding of no one. The devisee alone could take the estate,
there being no heir at law or next .gf kin of the testator ; and
resulting trust consequently having failed by the want of a
cestui que trust, consequently the judgment of the Court below
must be reversed and the deposit returned.

WHARTON V. LORD DURHAM.
His LORDSHIP, before proceeding to give his judgment,
could not forbear mentioning the anxiety he had all along felt
in hearing the case, for he had known one of the parties for
thirty years, and the other for a long period of time most inti-
mately. He had put off the hearing of it for three months,
and had proposed that Lord Lyndhurst should have heard it
with him ; but then that Noble and Learned Lord did not
stand so even with the parties as he (the Lord Chancellor)
did, for he knew Lord Durham most intimately, and Mr. War-
ton not at all. Therefore it was that he had proposed the
taking of the matter at once to the House of Lords, a course
which had been refused by one party, and consequently he was
obliged to hear it. He should now proceed to give his judg-
ment. The question, which was decided by his Honour the
Vice-Chancellor, and brought by way of appeal to this Court,
was, whether a portion of 15,000/. given to Susan Lambton,
the wife of the plaintiff, by her father General Lambton, was
to operate in ademption of a legacy left her by GeneralLamb-
ton. General Lambton died in 1794, and the present bill was
only filed in 1827, and consequently he should first have to
consider the length of time that had elapsed without any claim
having been made to the legacy in question—a consideration
always of the greatest importance. Mr. and Mrs. Wharton
had lived in habits of the greatest intimacy with Lord Dur-
ham's • family and Mr. Ralph Lambton, and from the cir-
cumstance of Mr. Wharton's having been in embarrassed cir-
cumstances, it seemed very extraordinary that neither he nor
his wife should have heard nothing of this legacy before 1827.
Upon the whole he (the Lord Chancellor) was of opinion that
the evidence preponderated decidedly in favour of the plaintiffs
not having had knowledge of the existence of the legacy prior
to 1827. Having decided the point respecting the lapse of
time before filing the bill, he should now refer to the main
question in the case, that of whether the legacy acted as an
ademption of the settlement; and in so doing he should not
go through all the arguments advanced in behalf of the plain-
tiff's claim, for there was one which of itself he thought was
sufficient to support the judgment of the Court below. It was
the agreement that a sum given to adeem one interest could
not be intended to adenn another. No authorities could be
cited to show the affirmative of such a proposition. All ob-
servations against either party in this case were totally uncalled
for. Lord Durham and the rest of his family were not in the
least to blame. Lord Durham stood perfectly above all re-
proach, and yet it was just as certain that no blame could be
thrown upon Mr. Wharton and his wife. The case was a
mere question of construction, and was therefore a point of
law or a matter of fact; it was simply a question whether Mrs.
Wharton was at law entitled over and above what the settle-
ment gave her to the legacy in question. Could any thing,
therefore, be more absurd and more ridiculous than to charge
her with unfairness in only having endeavoured to have the
intentions of her father carried into effect? Consequently the
decision of the Court below must be affirmed, and with costs.

SHERIFF'S COURT, AUG. 5.