The Sun.
London, England, 1828-05-16 00:00:00

LAW INTELLIGENCE-(THIS DAY.)

ROUSE OF LORDS.
EATON ANA COWAN V. DIURDOCH.

This case, which has been argued at great length, relates
to the legal responsibility of the appellants, who became
bound as sureties for the conduct of a person of the name
of Aitken, in the office of curator bonis to certain lunatics.
This office had been conferred upon him by the Court of
Session in Scotland ; and the question, which is of consi-
derable importance, shall be more fully noticed by us when
it comes on for judgment.

VICE-CHANCELLOR'S COURT.
JUDGMENT.
GOODACRE V. WILKINSON.

His HONOUR gave judgment at the sitting of the
Court to-day in this case. It was a bill filed for the
specific performance of a contract for the sale of the
first presentation to the living of Presteign. His
Honour was of opinion that the bill ought to be dis-
missed.

ARIGNA MINING COMPANY.
HITCHENS V. CONCREVE AND OTHERS.

An application was made for an interlocutory
order in this cause, calling on the defendants, Sir
W. Congreve and others, to pay into Court to abide
the result of the suit, the sum of fifteen thousand
pounds, which they were charged in the bill with
fraudulently appropriating to themselves.
The circumstances of this case have already been
discussed in such a variety of shapes that the public
must be fully acquainted with them.

The arguments are likely to .occupy the Court
during the entire day.

COURT OF KING'S BENCH.

Lord TENTERDEN sat at Nisi nius this morning
for the trial of undefended case, until 11 o'clock,
when the Court sat in Banco.

THE KING V. THE CORPORATION OF EXETER.

In this case Sir J. SCARLETT moved for a rule
to show cause why a mandamus should not issue
against the Mayor and Corporation of Exeter, com-
manding them to remove a nuisance. The nuisance
complained of was the shutting up an old canal
and making a new one, on which the public were
charged a higher toll. It appeared, that under
an Act of Henry the Eighth, the Corporation were
empowered to make the river Ex navigable from
Topsham to Exeter. Instead of making the Ex
navigable, however, they had cut a canal many years
ago, and had lately shut up this canal and opened
another, on which the public were charged higher
tolls.

The COURT granted a rule Nisi.
THE WING V. DUNN.

This was a rule obtained by Mr. BROUGHAM, to
show cause why a criminal information should not
be granted against Charles Dunn, for a libel, against
Sir Paul and Lady Joddrel, published in a work
called the " Modern Law List."

The defendant now appeared in person to move
for an enlargement of the, rule until next Term,
and in support of this application handed in an affi-
davit, stating, amongst other things, that he had an
affidavit framed in explanation of slime of the facts
contained in the libel which he was charged with
publishing, and that he required four persons to join
him in this affidavit, and that those persons not being
in town, he could not get them to join him, and
therefore required delay.
Mr. BROUGHAM contended that the only object of
the defendant was delay; but he was willing to
leave the case entirely in the hands of the Court.
The COURT consented to enlarge the rule until
next term, on the condition that if the inforMation
was granted, the defendant should plead to it four
days after it was filed, and be ready to take his trial.

COURT OF COMMON PLEAS.
FOTIMOILL V. WALDO.
In this, case Mr. Sergeant LAWES obtained a rule
to show cause why the defendant should not be
discharged out of custody, and
Mr. Sergeant WILDE this day showed cause against
the rule. The following were the circumstances of
the case as stated by the Learned Consel. The de-
fendant was in execution at the suit of a person
named Fothergill, who had recently died, having been
previously a bankrupt. His wife took out letters of
administration, and therefore without her consent,
the Court, he apprehended, could make no order for
the liberation of the prisoner. It was true that she
claimed no beneficial interest, and it was also true
that the assignee under the bankruptcy claimed no be-
neficial interest; but this formed no ground why he
should be liberated, for the deceased Fothergill
was only nominally the plaintiff, the action having
arisen upon a charter party, lie being the ship's
husband, and acting for the owners, Messrs. Atwood
and Co., for whom Mr. Sergeant Wilde now ap-
peared. They had a beneficial interest, and were
of course opposed to his discharge.
Chief Justice BEST.—How can we discharge him,
if there be an administratrix who can do so if she
choose, though she will of course do it at her own
peril ?

Mr. Sergeant apprehend, ray Lord,
that the Court cannot, and the rule must, therefore,
be discharged.
Mr. Sergeant LAWES, in support of the rule, said
that if there was ever a case which appealed to the
compassion, as well as to the equity of the Court,
this was one. The defendant was 76 years of age,
and had been eight years in prison for a debt which
he had no equitable right to pay, and he would now
offer to refer the case to any gentleman at the bar
for arbitration.

Mr. Sergeant WILDE declined to do any thing of
;he sort.

Mr. Sergeant LAWES proceeded—The defendant,
in conjunction with another person, chartered a ship to
Terceira, from whence she was to return with a cargo
of fruit. Fothergill was the ship's husband, and
undertook that she should take in some hogsheads
of brandy at Bourdeaux, which were to be paid as
purchase for the fruit to be taken in at Terceira. The
brandy, however, was not taken in, owing to a let-
ter from Messrs. Atwood and Co. to the owners,
and the consequence was, when the ship arrived at
Terceira without the brandy, the fruit could not
be obtained, and the ship was forced to re-
urn without. The present defendant, in conjunc-
tion with his partner, lost about 2,0001. by
this breach of the charter, and brought his action to
recover damages, upon which the action in the name
of Fothergill was also commenced as a mere colour-
able action against them. The action came to be
argued upon a demurrer; as to whether there was a
preceding breach of contract on the part of Fother-
gill, and the argument was against the defendant,
upon which judgment issued. This was the state of
the case ; so that Messrs. Atwood and Co. (Fother-
gill being dead) had only an equitable standing in
the Court; and that equity being against them, the
prisoner was entitled to his discharge.
The CHIEF JUSTICE said that the Court had more
than once discharged a prisoner when his plaintiff
had died, but then it was only where representatives
could not be found. In the present case there was
a representative in the person of Mrs. Fothergill,
who administered; and although she might have no
objection to the prisoner's discharge, yet she only
had the power to release him, though in doing so
she of course rendered herself liable to the claims of
those who had a beneficial interest. He saw no
grounds for appealing to the compassion of the
Court, for two reasons : in the first place, the
Court could not act upon any such grounds; and, in
the next, according to the present laws of England,
110 man need remain in prison for any length of time
if he either paid his debt, or gave up such property
as he had, however inadequate to the payment
of his debts, according to the. provisions of the In-'
solvent Debtors' Act. In the present case, there
is an administratrix, and the Court cannot there-
fore interfere ; for if she had not administered, the
Ecclesiastical Courts would most likely have granted
letters of administration to Messrs. Atwood and Co.
The other Judges concurred in this opinion, and the
rule was ordered to be discharged.

The rtnnoured marriage between Lady CAS-
TLECOOTE and Lord Mit:rowg, we are authorised to state,
is completely at an end.wrifeelnas ,Icnfrnal.