The Sun.
London, England, 1842-01-17 00:00:00

THE CORPORATION OF DARTMOUTH V. ELOLESWORTH,

In this case a bill was filed by the Corporation of
Dartmouth against the defendant, Arthur Howe Holes-
worth, and the object of the suit was that the plaintiffs
might be relieved from the payment of a certain bond
by having it delivered up to be cancelled, and that an in-
junction might be obtained to restrain proceedings at
law upon that bond.
Mr. GIRDLESTONE, who opened the case for the
plaintiffs, said that the bond in question was dated May
22, 1833, and had been given to the defendant under the
common seal of the Corporation, for the purpose of se-
curing to him the payment of the sum of 1,2491. Bs. 9d.
with interest. That sum was the amount of costs of
certain legal proceedings which had been paid by the
defendant ; and these proceedings were taken on a quo
warranto instituted by the Attorney-General against
the defendant and others formerly members of the Cor-
poration of Dartmouth. The Corporation consisted
previously to the passing of the Municipal Corporations
Act of a certain number of aldermen, two bailiffs, and
and an indefinite number of freemen, the governing body
being composed of a Mayor and Councillors, amounting
altogether to twelve. The first charter constituting the
Corporation was of the 3d Edward 111., in the year
1340 ; and by an Act, of .James 1., the Mayor and
twelve burgesses were empowered to make by-laws bind-
ing on the whole body. By a by-law passed in the
month of September; 1706, it was enacted that no act of
the Corporation should be legal unless the major part
of the governing body should be present, and unless ten
days' notice should have been given that a meeting of
the body was to be held, .In the year 1829 a gentleman
of the name of Whitney . was exercising the office of
Mayor of the borough, and_the defendant was at that
time one of the aldermen. The defendant was a gentleman
of great influence in the borough, in which he possessed
considerable property, and which, previous to the passing
of the Reform Act, he had for several years represented
in Parliament. The defendant, at the time in question,
also exercised a paramount influence in the nomination
of the members of the Corporation. It occurred to cer-
tain burgesses and inhabitants of the borough that this
influence had been illegally assumed, and as improperly
exercised ; and a rule nisi was obtained in Michaelmas
term 1829 by the Attorney-General at the relation of
those parties, calling on Mr. Whitney, the Mayor,
to show cause why an information of quo warranto should
not be issued, calling upon him to show by what autho-
rity he exercised his office. In Hilary term 1830 that
rule was argued and the rule was made absolute. It ap-
peared that' Mr. Whitney not liking to undertake the
defence of those proceedings, Mr. Holesworth under-
' took the defence for him ; and accordingly Mr. Holes-
worth authorised Mr. Robert Priddeaux, his private so-
licitor and the Town-clerk of the Corporation, to con-
duct the proceedings on his behalf. The rule having
been made absolute, fifteen informations were filed
against the Mayor and other individuals, two of whom,
of the name of Newman and Rennels, were at the time
burgesses, but not aldermen. The defendant Holesworth,
who was an alderman, was also one of the parties. The
defendant undertook the defence to these proceedings,
Samuel Priddeaux, who had succeeded to the office of
Robert Priddeaux, deceased, acting as his solicitor. In
Trinity Term, 1830, judgment was given with costs against
the Mayor, Whitney, upon the information filed against
him. It appeared that on the 11th June, 1830, there had
been a meeting held by some members of the Corporation,
and a memorandum was signed at that meeting by Mr.
Whitney, the Mayor, by Thomas Newman, Henry
Holesworth, Joseph Parke, Edward Brooking, Robert
Holesworth, and Frank Rennels, who were all
among the individuals against whom the infor-
mations had been filed. That memorandum was to the
effect, that the defence to the informations should be
left to the defendant. It appeared, however, to the
parties on further inquiry, that no defence could be set
up against the informations; and the consequence was
that, after the defence had been proceeded with
to a certain point, disclaimers were instituted upon all
the informations then pending, and the result was, that
judgment with costs was given against the defendant.
The costs amounted to the sum of 1,2491. Bs. 9d., and
those costs were paid by Mr. Holesworth. No claim
had been made upon the Corporation for the payment of
that sum, either by Mr. Holesworth or by his solicitor,
until the month of April, 1833, although there had in the
meantime been many dealings between the Corporation
and the defendant. In the month of April, 1833, however,
Mr. Holesworth made out a bill of costs for the amount
of the expenses of the legal proceedings ; and that bill
was forwarded, on the 15th of that month, to the then
Mayor, Mr. Strong. On the same day a meeting of the
Corporation was held, at which there were but five mem-
bers present, together with the defendant, who assisted
there as Recorder, at which the claims of Mr. Holes-
worth were discussed, and a resolution was passed that
the subject should be taken again into considera-
tion at an adjourned meeting. Mr. Harkstone,
however, one of the aldermen present, refused to
sign that resolution, so that it hnd only the
signatures of the Mayor, and of three other individuals,
who were among the parties against whom the informa-
tions had been filed. On the 22d of April a meeting
was held, at which two gentlemen, of the names of
Codner and Harris, were created aldermen; and on the
16th of May, 1833, another meeting was held at which
eight aldermen assisted. At that meeting a resolution
was passed to the effect that the town seal should be af-
fixed to a bond, for the purpose of securing to Mr. Holes-
worth the amount of the legal expenses he had incurred.
It appeared, however, that Messrs. Codner and Harris,
two of the gentlemen present, had refused at first to sign
the resolution ; but their scruples were remoi ed by
certain representations made to them, but which it was
contended were false. They were told among other
things that Counsel had been consulted, who declared the
legality of Mr. HOlesworth's claim, although there was
no evidence that that representation was true. The
teenr amount
pnratinn of
for th
its payment ; to that action
Municipal Corporation Act was subsequently passed, and
the consequence was that the new Corporation refused
to pays t
h the
brought an action before the Court of Queen's Bench
again
three pleas had been put in. Those pleas were over-
ruled by the'Court, and the question at common law was
therefore disposed of. But the Corporation came before
this Court on their equitable claim. It was contended
e bond. Mr. Holesworth
At the meeting at which the bond had been granted it had
that they had no right to pay the amount of the bond.
been represented that the sum was a debt owing by the Cor-
poration to Mr. Holesworth, that the expense had been in-
curred at the request of the Corporation, and that Counsel
had been consulted as to the legality of the claim. These re-
presentations, however, were false ; and the members
who empowered Mr. Holesworth to conduct the legal
proceedings had not acted as a corporate body, and a
sufficient number of the Corporation had not been pre-
sent at the proceedings. The plaintiff was not, therefore,
entitled in equity to the payment of the bond.
Mr. WAKEFIELD having argued at some length against
tfhenedaapnptlitchaetisounmunhae had de to Court,tehxepended,and which had been
on the ground that
there were no equitable grounds for refusing to the de-
insured to him by the bond, the further hearing of the
case was postponed till Monday
(Before, Vice-Char cellor BnycE.)
His Honour did not sit to-day, in consequence of a
Privy Council at Windsor.

COURT OF QUEEN'S' BENCH, Jan. 14.
,
THE QUEEN
V. TIIE VISITING JUSTICES OF THE lIANWELL
LUNATIC AsYLUItt.
[Our Reporter was in error in stating in our Morning
Edition of Saturday that'the Court would take time to
consider its judgment:
elettr Ophlicat that this rule
The COURT exp re d a
must be disehirged." The -app.Reant appeared here to
dispute the Power of the Visiting Justices either to ap-

point or dismiss the chaplain, Yet it was clear that
unless those Justices possessed the power to appoint,
the applicant had no right at all to come into Court with
this application, for, as he could not be removed from
an office to which he had not been appointed, his Com-
plaint that he was illegally removed implied that he had
been lawfully appointed. If, then, he was the chaplain
of the asylum, the question arose whether the Justices
who had appointed had power to remove him. There
seemed no reason to doubt that they had such a power.
The 30th and 32d sections of the 9th George IV., cap.
40, must be read together, and then it was' clear that
they gave the Justices the power to appoint the chaplain,
to regulate his duties, and to remove him if they saw
occasion to do so. It was true that this power was not
s• clearly expressed in this act as in the Goal Act,
because, in order to make it out, two distinct sec-
tions required to be read together ; but there might be
good reasons for making some difference between the two
cases. The Gaol Act gave in express terms the power
"of removal, but then it restricted the exercise of that
power to certain specified cases. There was no such re-
striction here, and could not be, for in some cases the
very approach to the performance of religious duties
might increase the malady of the patient, and it was
therefore absolutely-necessary that the discharge of the
chaplain's duty should be left more in the discretion of
the Visiting Justices, acting. on the advice of the physi-
cian, than could be done in the case of persons who,
though criminal, were in a sound state of mind, and to
whom, therefore, the administration of religious instruc-
tion must at all times be beneficial. The Justices had
therefore, in both cases, the appointment and the re-
moralspif the chaplain in their hands, and the Court now
was not ealled on to decide whether they had rightly ex-
ercised iike discretion vested in them. The rule must,
therefore, be discharged.
The SOLICITOR-GENERAL asked that it might be dis-
charged with costs.
The COURT, in pursuance of the general rule, which
ordered that rules against Justices, if discharged, should
be discharged with costs, ordered it to be so.

JANUARY 15

THE QUEEN V. THE VESTRYMEN OF THE PARISH OF

MARYLEBONE.

- In, this case a rule had been obtained, calling upon the
Vestrymen of the parish of Marylebone, to show cause
Why a writ of mandamus should not issue directed to them,
and commanding them to invest the surplus of any sums
remaining in their hands, and derived from pew rents and
burial fees, after defraying the expenses of the erection
of the district church, and the other necessary expenses,
stipend, salary, and repairs thereof.
The ATTORNEY-GENERAL was now heard against
the rule, and proceeded at some length to com-
ment upon the construction of the various clauses
of the local Act under which the application
was made. The Learned Counsel contended that
there was nothing in tho Act which authorised the
making the account of the receipts and expenditure an
annual one, nor was there anything in the form
of the writ of mandamus as applied for, which
would render it imperative upon the defendants to
make the return in the form of an annual
account. The accounts had been made up to the present
time, and the entire sum which remained over, after de
Fraying all the necessary charges and expenses, was only
168/. Having entered into a statement of the receipts
and expenditure for several years past, the Learned
Counsel submitted that the rule ought to be discharged.
Mr. BUTT, in the absence of Mr. Prendergast, was
heard in support of the rule, and
The COURT said, that although some of the points were
pretty clear, it would be, perhaps, better to pronounce no
opinion until they had looked into the entire case.
Judgment deferred.

COURT OF EXCHEQUER, Jan. 15.
WAKELING V. DEWEY.

This was an action of trover, to recover a ticket in-
teribed with the name of " Van Amburg;" it. was tried
in July, before Lord Abinger, when the Jury found a
verdict for the, plaintiff, damages 75/ A rule for re-
ducing the verdict to nominal damages was ob-
tained last term, and cause was shown to-day.
The Learned Judge read over his notes of the trial, from
which it appeared that the plaintiff was a draper in the
employ of Messrs. Sewell and Cross. He was in the
habit of frequenting the public-house kept by the de-
fendant, at which an Epsom Derby Club was established.
He became a subscriber, and was fortunate enough to
draw Van Anibnrg, and got a ticket inscribed
with that name. Being short of money he borrowed
the sum of ,Sl. of the defendant, upon the security of
his ticket. The defendant afterwards allecred that he had
bought the ticket for the 51.; in some-of!the discussions
upon the matter, he offered the plaintiff 40g. for it, but
it was refused, and it was, sworn to be worth 801. As he
could not obtain redress of any kind, he brought his
action, and the Jury gave him the sworn value of the
ticket.

This morning after his Lordship had read over his
notes, he said it was unnecessary for Mr. Thesiger to ad-
dress the Court, as they were of opinion that as no evi-
cence was given at the trial of the manner in which the
drawing took place, they could not infer that it was done
illegally. -
Mr. Crumpton and Mr. Hill, in support of the rule,
contended that the ticket was of no value except through
an illegal betting upon a horse-race—that as nothing
could be recovered-on it through the law, it was worth
no more than its intrinsic value, which was a farthing.
Lord ABINGER—Why not give it up then ?
Mr. CRUMPTON did not know. He stood on the legal
view of the case.
•
The COURT said th©y were not prepared to say that
this was an illegal transaction. They could not upon
mere suspicion invalidate the verdict of a Jury. The
onus probandi was upon the defendant; he ought to have
put in the Rules of the Club, and failing that, the rule
must be discharged.—Rule discharged.

BAIL COURT Jan

Mr. Justice WILLIAMS having disposed of a few mo-
tions of a purely technical nature, in the early part of the
morning, sat afterwards at Nisi Prins, with a Middlesex
Common Jury.

RIGGE AND WIFE V. MILBOURNE.
This case which was partly heard yesterday, was an
action brought by the plaintiff to recover a balance of
account with interest, amounting to 1991., alleged to be
due from the defendant. It appeared that the wife
of the plaintiff and the wife of the defendant are sisters.
That defendant was married first, and had borrowed the
sum of 3601. from Mrs. Rigge before her marriage, por-
tions of Which he had from time to time subsequently
repaid, leaving the amount of 1971. Bs. 4d. unpaid.
The defendant pleaded a set off; and in the
course of the defence went into the details of various
family quarrels. It was apparent throughout the case
that there was a great deal of ill-blood between the parties.
Mr. Justice WILLIAms, in summing up, animadverted
upon the time of the Court having been wasted by going
into the circumstances of the family quarrels, which had
nothing to do with the case.

The Jury, without hesitation, found for the plaintiff
for 1991.

WEADON V. LORD HIINTINGTOWER.

This was an action on a bill of exchange for 1,0001.
accepted by the Noble Defendant; which had become due,
and had been dishonoured. The defendant pleaded that
he had never accepted the bill.
Mr. Hiooprs, for the plaintiff, called Mr. Ford, a
solicitor, who had frequently seen Lord Huntingtower
write, and who swore distinctly that the aceptance was
in the handwriting of the Noble Lord.
__ _

The Jury immediately returned a 'rerdict for the
plaintiff for the amount of the bill, with interest.

INSOLVENT DEBTORS' COURT, Jai. 15.
IN THE /HATTER OF JOHN HILLINO.

Pursuant to an order made by the Court in this case
(which was reported in The Sun of Thursday, Mr. Mor-
rell, the insolvent's attorney, attended, when the Learned
Commissioner strongly reprehended the practice of soli-
citors committing the conduct of cases to incompetent
and disreputable persons, and said it was the determina-
tion of him and his colleagues, in all cases where it was
possible to enforce the personal attendance of the sf li-
eitors themselves. In the present instance, no further
remarks should be passed until a full Court was sitting.