The Sun.
London, England, 1804-05-02 00:00:00

COU XT OF %HdNCEnY, ArRrL 23.

TOO V. EtAnwooD, E;;Q, V. JOHN HORFR TOOKE,
rt. Q.. SIR rRA. eueoETT, BART. AID OTitt:-.RS.
This important Case has occupied the attention of,
the Cour: for yearly three days ; and was Argued.
twilit eery wear ability, by Mr. Roett Ley,
Cut este, and Mr. PLOWDF NI, for the Plairitiff; by
Le Acre, for Mr. ayrne Tooke ; and Mr.
RICHARD:, for Sir Francis Burdett.
The cirgernstances nf this extraordinary case, as
stated in tiCe Bill, and the answers of Mr. Borne
"Uneke, were as follow :
ne Defendant Tooke, then the Reverend John
Hurry, had so long ago as tie year 1768 formed an
aceuaintanee with a Geerleman of large thrtune of
Cie Pattie of Tneke, which in titre was rieeeed into
the closest friendship, the Defendant constantly re-
siding in Mr. Tooke's house, and being generally
considered as the adopted heir to his large property.
—1 he Bill then statedethet in the course of this in.:
!'rnlev, the Detendent levi represented to Mr. Tooke-
that it would very much facilitate the negotiation he
v. as !hen caeryine on wish the Earl Of Shelburne,
now M:trquis of Lansdowne, if he, the Defendant,
were pertritted to assume Mr. Tooke's name in ad.
dition to his own. That Mr. Tooke, influenced by
anxiety to serve the Defendant, consented to this
tittle sal, and the King's Licence was accordingly
obtained, by which Mr. Tooke was permitted toes-
seine the surname of Toeke in addition to his own.
That several years efierwerds a shyness took place
N•tween the Defendant and Mr. Toeke, when the
hitter eroposed, in case the Defendant did not live
with him upon the same intimate footing as before
to s' re: for his tieeliew, the present Plaintlf, theproe
prier v of which W4S strongly Urged to Mr. Tooke
by the Defendant, who did not till this cccurrenct
know that Mr. To ke had a nephew, never having
heard his name mentieneck before. That the Plain-
tiff is as accordiegly sent for, and resided occasionally
with Lis u' dc, the Defendant alto continuing upon
a lii telly fuming >s lilt Mr. Toeke, but not in the
habits of strin intimacy which had formerly sub-
sisted between them.
Some time atier this arrangement, the Defendant
To ke being in want of meney, and it being then
keeerally understood that he and the Plaintiff would
• be left''the greatest part el Mr. Tooke's property,
an agreement was executed between them, in order
ble the Defendant to accomplish his object.
This agreement was, that the Plaintiff and Defend-
ant should equally divide between them whatever
property they should respeelively became entitled to
teethe Mr. To ,Ite's Will. This agreement was soon
afierwar!li dep.sited by the Defendant with Mr.
Felix Vaaghane now deceased, as a secueity, the
P:aietiff at the same time executing a bond jointly
with the Defendant, to secure the•payment of what,
ever swiss Mr. Vanghan had advanced, or might ad.
vince. That Mr. Felix Itmehin, a short time
previous to iii death, sent for Mr. William Scott, a
frneid of the Defeedent's, and told him that he had
eiredei in his' Will that the bre ind should he can.
cehe f, and the agreement given up to the Defend-
ant, at the same rime strongly recommending that
• the tansaEli n should be kept a profound secret
from Mr. T.oke, a., in case he heard of-it, he might
pr,'• 3,,ge his intentions with toped both to
the Plaintiff and Defendant.
Mr. "Fo9ke died about two years ago, leaving the
grf, er part of his property to the Plaintiffeand his
eeeltew, John Bazely Tooke, and a legacy of
fool. only to the Defendant. The Testator'. Nor.
teik estate was entailed upon the Plaintievand Mr.
Bazely Tc• ke. •
A short time after Mr. Tooke's death, the Plain.
tiff and the Defeelant . then being, upon terms of
great intimacy, the Defendant reminded .the former
t the agre,ement which bad been executed between
17tryir,d stated to him his anxietyto make a provision
fhr Mrs. `fooke and his two daughters, requesting
to know what the Plaintiff would do to assist him
in r ffeEting that objefi. That the Defendant static).
his wish to hte to eurchase thiee annuities of
aiel that his friend Sir Francis Burdett had.
promised tti grant them. The Plaintiff upon this
owed iris reeiliness to assist the Defendant, but that
he lied not then received a debt of 'O,OOOl. dile to
the late Mr. Tot ke, the payment of which had
been postponed, and added, that he had merely a
life estate in the landed property, under Mr.Tooke's
That from the intimacy which subsisted be-
tween the Poithiff and the Defendant, the latter
was ,eriee,red t asist in the settlement of The proe
pert), staid the will of Mr. Tooke, between the
Kain•ef Bazely Tooke, and that several
interviews no the stihje(i took place between the par-
ties and Mr. Caviler, a Solicitor. Tjat at one of
tho'e n:e•iegi "gr. Tooke renewed the subjed of the
annuietet ,end stared that the purchase money of three
eneui.nes of tool, each, forehree lives, would mount
t t. 3 6661. adding, that he would he perfeEtly
tibti-.1 it the Plaintiff would pay him that sum
upon which the Plaintiff said, it certainly was his
wish to assist the Defendant, and when-the affairs
- were settled thee would see what, could be done.
That therraint;ff hail some time previously request_
• •ed the Deferidant to sit for his piflure to Mr.Opit,
which he had consented to, and the Plaintiff was in
the habit of sending'his carriage to the Defendant's
house at Wimbledon, whenever he found it conve-
nient to attend Mr. Opie. That on .the 9111 of
July, 1803, the Defendant came to town, and af.
• ter sittnig to Mr. Opie, called at the Plaintiff's
house in Berners-street ; and upon- his ordering the
carriage to be discharged, the Defendant said,
" ,No, let it wait, I want it to catty me to Mr.
Coutts'S." That the Defendant then said, "I have
purchased the three annuities which I mentioned
to you, tient Sir Francis Burdett, and as I mast
• • itay the money to Mr. Coitus this day, I have
4-;;:h-•d upon you to settle ehe business between us."
That the Plhintiff thereupon asked, " what annul.
ties, and who aethorized you to do so ?" to which
tie Defendant replied, 4.‘ Why, the three annuities
which you meetir to give me." That the Plaintiff
then said, that Mr. Culvert's bond for 10,0001.
was not to he :paid off ontilethe zeth of March,
rBe4., end in the mean time he had •nothing ; that
he w °old talk to 'Mee Bazely Tooke upon the sub-

1.01)ON: Printed by BUCHAI
At the SUN.OFFICL, P

wh%t %XIS to be done for the nefetilinr,
and that lie thought whatever :mutinies were to
be given, had liet:er be secured upon his (the
Plaintiff's) estate iii Norfolk. - The ll:lentiant said.
" No, you have only a life interest in that estate,
and what you mean to do for me sln:uld be done
without the intrrvention of any third person."
Upon which the Plaintiff said, Then we can settle'
this business some other time." The Defendant,
with considerable agitation, 'el lied, " No, to-mor-
row- I will accept nothing from yr,u. I have crime
here with a deterrninAtiun to settle this busiuess this
day. You said, that if 37,',1-could not pay the mo-
ney, you would give me a bill or a note, and I have
brought a stamp in my pocket for that purpose.
My honour is solemnly pledged to Mr. Courts."
. _ _

The Plaintiff then said, " I have nothing, and I
neither will or.c.anty such a suns of money. You
know that I have not yet received Mr. Tooke?s per.
sonal property." The Defendant, with increased
agitati7n, then siid, " I will hear no explanation 3,
If not now aided by you, my credit is lost," offer.
jog at the Same time to leave the room. Upon
which the Plaintiff observed, " Ycit cannot have
any doubt of my liOnottr." The Defendant replied,
" Until this hour I never had ; but I suppose some
unexpected misfortune has happened, which has in.
duced yod to change your mind. I have told you,
-that if not now aided by you. my credit is gone, my
honour is at stake." That the Plaintiff thereupon,
anxious to preserve the Defendant's honour, and in-
duced by the false representations of his.having
adually piircha-ed the three annuities from Sir
Francis Burdett, ," Give me the stamp,-and I
will copy the note; but it must be mede payable
;slur the 25th of Aire!), 184, when I am to receive
.to,coo . oefendant then observed, that
as the money was not to be paid until Char time, that
the note should he for .4.c001. t, which the Plaintiff
consented, and accordingly gave him the note, after
which the Defendant left him.

The Bill than stated, that the Defendant had riot
purchased the annuities from . Sir Francis Burdett,
which he bad stated, upon the faith of which, and
under the belief that his credit was pledged to give
some security for the same, he had signed the note,
hut that he had purchased an annuity of fool..per
annum for his own life, with zaool. part of the
40001. and had received fount Sir Francis Burdett
a bond for the remainder of the money.
The Bill then stated, that the Plaintiff, upon dis-
covering the use the Defendant had made of the
nate,- and the false representations Hader which it
had been obtained, wrote to the Defendant, charging,
him. therewith, and informing him of his intention-
to resist the-payment, and that he also wrote to Sir,
Francis Burdett to the same effea ; that the Defend-
ant returned a verbal answer only,
.promising to
call upon the Plaintiff, which he never did ; and
that upon the note's becoming due, an aClion was
brought against the Plaintiff, nen which he had
been held to bail ; that the Defendant had also ob-
tained from Mr. Bazely Tooke the promise of an
annuity of tool. per, annum, which the Piaintiff con.
tends ought to have been c mununicated to him, hut
which the Defendant entirely concealed. • The Bill
therefore prayed a discovery, and an. injainetinn to
restrain the Defendant from
.recovering at law, and
that the note might he delivered up to be cancelled.
The Defendant,' John..klorne Tooke, in his an.
swat; denied that he had taken the surname, of
Tooke from the motives stated in the Bill, or that
he hail ever 'Made such representations to -IVlr.Tooke
as stated ; but that he,wes•inciticed to change his-
name from the -expedation of certain beneftcial ar-
rangements which bad been promised to him by the
late Mr. Tooke, but which had never been perform.
ed.—He also denied that the Plaintiff was in any
manner surprised in giving the note,! but that he
perfeelly understood such a settlement was to take
place, having.declared. to Mr. Gawler that his, the
Defendant's, chndutt was very handsome, and his
exeettations reasonable; and from the freqUent con.
versations which had taken place, on the.subjeCt, he,
the Defendant, had been in daily expectation previous
to the 9th July, 1803, that the Plaintiff would settle
with him. l hat when the Plaintiff-wrote the note,
the Defendant told him that the annuities ought not
to be charged upon the estate, Mr. Bazely Tort-ke
having already done enough for him. That the
Plaintiff, upon giving him the! note, observed,'' You
must be sati,fied that I never meant to settle this..
business otherwise than to your. satisfaCtion ;" upon
which the Defendant replied, " It was not likely to
finish otherwise." . That the Defendant observed it
was only right the note should be for 40001. as he,
the Plaintiff, .had long ago received his share of the,
property, while the Dafendant would not have any
thing until the note became due. That the Plain-
tiff, after giving the note, observed, He had no
doubt but that the Defendant would at any time
be ready to serve him," adding " tie Vtitable.ion.
estate is now your own." To which the Dasiend.
ant replied, " It is not too much for my family." 1
The Plaintiff then said, " You may leaveait to
me, settling: what you.think prover as a provision
for your daughters upon it."
•Upon which the De-
lenthint observed-5- " If I live, I may perhaps be
able to save something ; but this is not a fit subjett
for conversation." That the Defendant, upon
leaving the Plaintiff, paid the note to Mr. Courts,
to the credit of Sir Francis Burdett, and admits
the purchase of the annuity from Kira ; but he posi-
tively denies having extorted the note from-the
Plaintiff wenn the false and fraudulent representa-
tions stated in the Bill, or upon any other grounds
than as the proportion he was entitled to under his
agreement tvi.h the Plaintiff. He admits that his
intention was to purchase the three annuities, as-
stated in the Bill, and that he had communicated,
the same to the Plaintiff; buy he-lays, that he after.
wards thought he could in Ike a better provision by
adopting the mangementstated. And the Defend.
ant admits, that Mt. Bazely :cooke had, 'voluntarily
anti unsolicited, told him
_thAt he would settle an
annuity of torah per annum upon him, and that he-
had actually Paid him the first year in advance.—
This shortly is the substance of the an,wer, which
cOntaina a positive denial of the greater part of the
charges in the Bill.
The pretext Motion was made by the
for an injandtion to restrain the Deferaiants from re-

cerering at law upon tilt note, and suing on' exe-
cution, and was argued by the (..:;unset
braced; l.ut a. their principal argt:mt..nts are cntene-
rated by the Loan CH ANC R tit delivo, jog his '
opinion, we shall not recapitelate theen.
The Lox ct CHANCELLOR itter stAting the Icad;vg•
features of the case) said, " This Bill, and cons,,
trendy the answer, have gone into the d,•cail of
many topics which have no relation to the imme-
diate question between thee parties. It has b.:en•
stated that Colonel Harwood is ready to IRNify the
statements in this bill, up.,n Its oath, and that if
this'cause goes on to a heating, his ca,e, as stated,
will be fully proved. If it were ins- sitti”g
here, to lament the prudence or itnproderct
indi-
viduals; I shouid certainly do it in rl,is.cas-e, fir I
never recd left one which contains such cltockitte
contradietfons between the charges ni the till; and
what is sworn to in the answer. But the rule of
this Court is, upon a motion of this nature, that the
Defendant.shall have the prote&ion of his own con-
science, and I must, in this stage of the cause, take
the answer as true. With resuea to the agreement
wein Col. Harwood and :Mr.HnrneTooke,taparti.
ciliate in what they might eventually become entitled
to under Mr. Tooke's will, I have very great doubts
indeed, whether this Court would execute it. It is
the case of an old man surrounded by two persons,
Who are parcelling his properiy between them in his
life time; and would a Court of Equity give its sane.
tion to an -agreement founded upon a consideration
not sttialy ny)ral? .The anxiety t; conceal from
Mr. Tooke the eeivence of such an agreement,
proves what the parties themselves thooAht Of it.
The whole of this answer proceeds upon the gr9utati
that the Plaiertiff and Defendant were emitted to
equal .participation in this property, fir Mr. H.
Tooke says, he always understood that Colonel
Harwood would settle with him upon'the footing
Of that agreement; Colonel Harwood's intentions
are, however, stated very d:irlently in the Bill.

" The most material transanion is that of the 9th
of July 5863, for it does not appear that any very
particular intercourse about the annuities took place
before that time. Thi»Transadion has a very dif.
ferent colour givervto it .by the two parties : hut it
is at-least clear that the note was on that day given,
and that day paid into the House of Couto and. Co.
to the credit of Sir Francis Burdett. Upon the
statement of the Bill, this note would be mere waste
paper ; but for the present purpose. I must take it as
stated in the answer. The Defendant seems: all
along to have thought of nothing but carrying the
old agreement into execution; and when he limited
his claims to a sum sufficiencto purchase three an.
ntiities, he 'says that the Plaintiff declared that he
thought his conduft very handsome ; Mr. Tooke
evidently thought that if he bad not a legal, he had
at least an honorary claim upon Colonel Harwood :
Nor can I avoid noticing the solemn and positive
manner in which he denies the account given in the
Bill, of the circumstances under which the note was
given. It, this Bill were sworn to, it would he im-
possinle not to lament that oath should r.kus be Op_
posed to oath ; but alihnugb the transaffion, as stated
by Mr. Tooke, is a very extraordinary one, it is
possible to disbelieve is at present. I refer to the
whole answer for the optnion which I have formed,
that Csdonel Harwood's intention evidently was to
enable- Mr. Tooke to purchase three annuities, and
I think it clear that this note was given fur .a special
purpose.

"...it has been pressed very strongly from the Mir,
that Mr. Tookt's silence, after Colonel Harwood's
letter, which contains the same charges as this Bill,
must 'oe taken as an admission of its truth.; although
that letter was one calculated to extort an answer
from the most philosophical stoic. This silence has
been ascribed to his subdued tensper and well tap'.
laced mind; but Mr. Tooke must he considered as
affitated by the same motives, provoked by Ilse
same causes, and conciliated by the same c=leans as
aauate other men ; and silence, unexplained, is ge-
nerally, in a Court of Justice,, taken as affirding
at least strong presumption. A man might receive
such a letter as to mike it beneath him to give any.
answer; and I must say, if this letter Le not true,,
it is impossible to embody slander in a human shape.
It has also been urged, that Mr. Tooke's uncom-
mon talents, merits, and learning, give him an
ascendancy ovet most men; but if a roan, 'in a.
paroxysm of folly, chuses to put his name to a vote,
it is not, sufficient for him atterwardi to say he has..
been foolish. If this transadion is to he considered
as separated from pattircular circum•rauces, and the
rights of other persons, then Sir Francis Burdett.
has taken it without' any trust ; for it would be a
trust for the Plaintiff. it improperiv obtained ; and,
f.!r others, if specifically given. Ile is a purchaser.
for a valuable con:clatr.m.?n but vet he had notice
before the payinent of his money ; for Col. Hat-
woOd :wrote to him as well as to Mr.- fooke, and
this notice -makes bins liable fir what he (i)c.s• al-
ter it. If this note was given for specitie.purposes,
it has been misapplied, and' the C.ourt mast take
ciire-that that shall be set right. It is impossible,
the:efort, to decide this ease-with ut
.further inves-
.
tization, which I should do if I were to refuse this
Iniundion. This money, according to the Dden.
.dam's own confession, has not been applied in the
manner in which he stated to the Plaintiff that it -
should; and it must be secured for the benefit of
those it may be found ultimately to Gel (4% to. I will '
therefore grant the Injundion, tipon the Plaintiff's.
undertaking to pay the money into Ctiurt, within
two tnonths."—lnjunaion granted.

.21r

r 3

ti r, having been given in these cases, the
trate levied but the sunl st meptioried•
re
Several of the st,,:nal posts along our Ccasis
now Completed, and we are happy to ohstl'c'
that Government have, with their usual a'ten
tion to the prote6ion of trade, direaed that
the
tern of Vessels shall be made acquainted will'
.(iiirerent signals established at these
the appro;ieh of the Enemy, some copies of °lice
?re posted •Vp in the Long Room, Custom-10°4
and we understand some have been received at t"
Cast,.ll.ltow.e ;f.-..Cork, kr the purpose of beinbge
to
tofflfo,Piicared there are but three signals
ati,,,ied by merchants' vessels, viz.
For an Enetny'S Frigate.Or Frigates,
;in Cruizer,
For atil-Fnems Ve,sel close under the land, ,e
wikch arc too simple to be misunderstood ; and as t'o
pn,t; are so placed as to be discernable at,
Posts, denoting
the entite extent of the horizon on all sides, the 8
vantage th'•V must afford -40 trade is incalculable;
more especially a• this arrangement extends all
the COiibt of the United Kingdom.