The Sun.
London, England, 1829-07-22 00:00:00

FLETCHER AGAINST LE BRETON.

In this case the subject of dispute was the will of
Mrs. Mary Ann Fletcher, which disposed of certain
property reserved to her by a deed of settlement, in
which Sir Thomas Harvey Farquhar (of the firm of
Herries, Farquhar, and Co., bankers) and Sir Chas.
Ogle were named trustees. In October, 1826, she
married her surviving husband, Mr. Thomas Flet-
cher, and in November of that year a will was drawn
up by desire of the deceased, in which she bequeath-
ed the residue of her property to her husband. In
January, 1829, this will was brought to the bank-
ing-house of Berries, Farquhar, and Co. with the
date altered to " January, 1829." On the 17th of
April Sir Thomas Farquhar was sent for to the de-
ceased, and took down at her desire some bequests,
amongst others, legacies of 500/. each to Miss Hes-
ter Le Breton and Miss Lucy Le Breton, to be paid
out of the funds in her banker's hands. On ex-
amining her account, however, it was found that her
balance was not more than 1301. Sir Thomas F.►r-
quhar, therefore, thought it better to draw up a fresh
will, charging some leasehold property of the de-
ceased with the bequests. The will was read over
to deceased, and executed by her in presence of two
female servants. By this will the former was re-
voked, and the residue of the property was left to
the Misses Le Breton, the deceased alleging that
her husband had squandered her property.
Dr. LustuNGToN, on behalf of Mr. Fletcher, the
husband of the deceased, contended that the will
had been drawn up by Sir Thomas Farquhar with-
out any instructions from the deceased, and that it
was not what he professed to make it.
Dr. PIIILLIMORE, for the residuary legatees, con-
tended that Sir Thomas Farquhar had acted with
perfect good faith in the transaction.
Sir JOHN Nicnou.., in giving sentence, observed
that the case depended upon the credit of the wit-
nesses; if the two attesting witnesses were to be
believed, Sir Thomas Farquhar had not given true
testimony. That gentleman, however, was the
banker and the trustee of the deceased, and I►ad no
motive to bias him. On the whole, he was of opi-
nion that Sir Thomas Farquhar had stated the truth,
and that the two witnesses had not given a correct
account, and the statement of Sir Thomas Farquhar
having satisfied the Court that the deceased was
capable of making a will at the time, he was bound
to give effect to the instrument propounded.

ARCHES COURT, JULY 21.

BEARBLOCK AND ANOTHER AGAINST MEAKINS.

This was a tithe case, involving a question of
some novelty and importance. The defendant is a
farmer at Hornehurch, in Essex; the promoters of
the suit are the lessees of the tithes in the parish,
who have proceeded against the defendant for what
is technically called subtraction of tithes, on account
of the tithes of potatoes (a vast quantity of which
are cultivated in the parish for the London market)
not being set out in a legal manner.
Dr. LUSIIINGTON, for the lessees, stated that the
defendant, after sending a notice to the lessees of
his intention, began to dig up his potatoes, and to
set out the tithes of them in the following man-
ner :—He took them up in prittle baskets, as they
were called, and upon every tenth basket being
filled one was emptied out, and the remainder were
conveyed to another part of the field to be sorted.
This, he contended, was not a legal mode of setting
out the tithes. It was not competent to any persou
to take away nine-tenths of the prodnce without
affording to the tithe-holder a reasonable time to
see that his proportion was properly set out. With
regard to the consequences of this mode, it would
be necessary, according to the notice of the defers•
daut, that a tithing-mail should be present on the
field from half-past seven in the morning till six at
night. The consequence of this practice would be,
that the value of the tithes would be utterly de-
preciated.
Dr. DODSON followed on the same side.
The KING'S ADVOCATE, on behalf of the party
proceeded against, agreed with Dr. Lushington that
nothing precise could be found as laid down in re-
gard to the mode in which the tithes of potatoes
should be set out ; the general principle was to be
extracted from the diferent cases, which was, that
tjhuedg timeig differed
the tithes should be so set out, that the tithe-holder
whether
they
might
wereha v e
rightly fair opportunity oorut it'.nityßu otf

according to the nature of the crop; wheat, hay,
peas, and potatoes, each required a different spare of
time to allow the clergyman to judge whether Lis

proportion was right or• not. As to the quantity lie
did not agt.ee that legal measure was the rule; it
was sufficient in tho present case, if the ten baskets
were of equal dimensions. It would be impossible
to grow potatoes for the London market if the crop
were to lay all day upon the field, liable to injury
from the sun and air, which would deteriorate the
July crop one-third or one•fourth. lie admitted
that the tithe-holder did offer to attend twice a day,
but this would not obviate the objection. The pre-
sent mode was calculated for mutual advantage, for
it prevented the clergyman's crop from receiving
damage as well as the farmer's.
Mr. PICKARD followed on the same side.

Sir JOHN NICIIOLL gave sentence. The question
lay in a narrow compass. The law required that
the tithe should be separated from the other nine
parts, and that the tithe-holder should have an op-
portunity to see that the proportion was a fair one.
The defendant in this case had given a notice to the
tithe-holder that he shoal] begin digging his pc-
tatoes at half-past seven in the morning, and con-
tinue till six in the evening, and the mode was this :
—he dug up ten baskets, threw out one as tithe,
and carried the others to another part of the field,
where they were sorted for market. In order that
the tithe-holder might be able to judge of the fair-
ness of his proportion, it was necessary for him to
have a tithing-man on the field all day. Now, it
appeared, there were .50 farmers in this parish, who
grew potatoes for the London market; and even
supposing no combination among them, it was im-
possible for a tithe-holder to see that his tithes were
fairly set out, without employing a great number of
tithing-men. There was nothing in the principle
of the tithe laws which established this as the legal
mode of setting out tithes. It might be convenient
for the farmer, but the convenience of both sides
must be considered. The tithe-holder had offered
to attend twice a day, but that was declined. On
the ‘vhole, he was of opinion that the tithes were
not legally set out, and therefore that Mr. Meakins
had not paid them ; and he pronounced for 29/., the
amount of them.

Previous to the argument, the Learned JUDGE
stated that he had received two letters respecting
this suit, either from the parties or others interested
in it; and he animadverted, in very severe terms,

upon the gross impropriety of attempting to bias
the judicial mind of the Court by this clandestine
proceeding. As soon as he perceived the subject of
. .

the letters, he laid them aside unread.
Both parties, by their Counsel, disclaimed any
knowledge of these letters. The case, we under-
stand, is to be appealed into the High Court of
Delegates.

COURT OF COMMON PLEAS, JuLy: 21.

HEALD V. SMITH.

This %vas an action brought to recover the amount
of two promissory notes, the one drawn in November
1827, for 100/., the other, in March 15128, for 18/.

The Jury returned a verdict for the plaintiff for
the amount of the 1001.-note with interest. The
amount of the other note had been paid into Court
by the defendant.