The Sun.
London, England, 1827-07-24 00:00:00

LAW INTELLIGENCE.-(THIS DAY.)

COURT OF CHANCERY.
-EMDEN V. COVENTRY.
His LORDSHIP delivered his judgment in this ease.
He said, it arose out of exceptions that were taken
to the Master's report upon a reference made to him,
by which he was directed to enquire whether a sum
of 2501., which had been paid in respect of two half-
years' annuities, one item due in March, 1807, and
the other in September, 1807, had been twice paid
to Colonel Thornton. The Master, after having
investigated the matter, reported that the sum had
been twice paid to the Colonel. There was an
exception taken to that report, which was ar-
gued before the Master of the Rolls in 1820.
The Master of the Rolls confirmed the Mas-
ter's report. Colonel Thornton then appealed to
the Chancellor, and the appeal was heard at West-
minster in the course of last term. The facts of the
cast his Lordship considered were extremely simple,
when disentangled of some of their' circumstances:
It appeared that, in 1806, the annuity was granted
by the Hon. Me. Coventry to Cal. Thornton. The
annuity was charged on real estate, and also upon
personal estate in this Court, certain di-
vidends standing in the name of the Ac-
countant-General. In the whole of this property
Mr. Coventry had a life-interest, which interest he
charged with the payment of the annuity. When
this arrangement was made, the interest was devised
to a person of the name of George Hubbard, as
trustee for the annuitant; and there were the usual
powers executed, to enable Hubbard to enforce the
payments should they not be regularly made.
Shortly afterwards a, power of attorney was given
by Mr. Coventry, who was then going abroad, to
receive the rents and dividends ; and whatever
question might arise as to the trustee's having paid
the attpuities, kt was clear that he had charged him-
self vh the receipt of the money ; and whether,
he retained the money in his possession, or
paid it over, he received it as Colonel Thorn-
ton's trustee, and therefore it was to be con-
sidered as a payment made to Colonel Thornton
himself. It further appeared that. Colonel Thorn-
ton himself attended personally all the meetings be-
fore the Master, in the course of the investigation,
and that he made no affidavit on the subject. The
Court, therefore, felt at liberty to infer, that Col.
Thornton was satisfied he had received the payment
twice; and under these circumstances his Lordship
felt bound to diamiss the appeal.
Mr. WAKEFIELD. hoped the Court would dis-
misslt with full costs, the costs of this proceeding
having been most enormous.
Mr. HORNE, contra, submitted that the Court
ought not to give extra costs. He could assure his
Lordship that, in point of fact, Colonel Thornton
had never received one shilling of this money ; on
the contrary, that Hubbard died indebted to him
many thousand pounds. As there was no »talc fidcs
imputable to Colonel Thornton, he could not under-
stand why extra costs were asked against him.
His LORDSHIP felt bound in point 6f law to
believe that Col. Thornton had received the money
twice and certainly was induced to suppose that in
point of fact he had . been twice paid. If he
knew that he had been twice paid, he ought not, in
the first instance to have appealed to the Master of
the Rolls, and again to this Court; if he felt con-
scious that he had not been twice paid, he ought to
have made an affidavit to that effect. As the case
stood, the Court considered itself justified in dismis-
ting the appeal with extra costs, as against Colonel
Thornton.

VICE-CHANCELLOR'S COURT.
SALE v. 51001tE. .

This was a case in which a person named Moore,
devised by his will all his property to his wife, sub-
ject to certain charges and trusts. The testator,
after apologizing for not leaving any property to
some of his near relations, and stating that he could
not give them any thing without depriving his wife
of an income sufficient for her support, said, that
he made this disposition of his property, not doubt-
ing that she (his wife) ‘vetild " consider" his rela-
tions if she survived him, in the same manner as he
should have considered them if he had survived her.

A question arose upon the construction of these
words—namely, whether they amounted to an
implied trust.
The VICE-CHANCELLOR said, that he would look
through the will to satisfy his mind fully on the
subject, but at present he was of opinion that there
was no trust. The testator had first of all left his
property of whatever kind to his wife, subject to the
payment of his debts and funeral expenses, and then
charged it with an annuity of 50/. a-year to his sister
Fanny Moore. Nothing could be more absolute
than this devise. The testator then went on to say,
" my brothers being in affluent circumstances, and
my eldest sister provided for, I hope that they
will think this a sufficient reason for not leav-
ing any thing to them in this my will, which I could
not do without taking from my wife property which
she stands in need of." After this apologetic state-
ment came the words which were supposed to con-
tain an implied trust. Now, it was quite impossible
that the Court could tell how the testator would have
considered his relations if he had survived his wife.
He thought this want of certainty and definitiveness
in the language of the testator, was fatal to the ar-
gument in favour of an implied trust. The Court
had frequently interfered, and converted words of
recommendation iato words of command. 'He had
no doubt that the principle on which a Court of
Equity first acted in this manner was this. When
a testator recommended that the persons to whom
he left his property ' should dispose of it in
this or that way, it, is argued that such a recom-
mendation amounted to a command, because, if
the testator had supposed that these persons
would not have attended to his recommendation,

he would not have left.thero his properly. A Coud
of Equity, therefore, said if your consciences are not
good enough to fulfil the intentions of the testator,
we will substitute our consciences for yours, and
compel you to be honest. In several cases this
doctrine bad been carried to a great length, and
Lord Eldon perhaps had been inclined to go farther
than any other judge was disposed to carry it. His
HonoUr thought the principle should be applied very
'carefully, and jealously. In this case, where the
testator first of all gave his property absolutely to
his wife, and then, added his recommendation, he
was of opinion that it ought not to apply. It must
not however, be forgotten that neither the Court
nor the widow could tell in what manner the tes-
tator himself would have considered his relations.

ADMIRALTY COURT.
PALEMBANG.

This case was fully argued on the last Court day,
and was now called on for the judgment of the Court,
Lord STowELL said, that after fully considering
the documents produced in this case, he was clearly
of opinion that the claim of the captors was not sup-
ported to the full amount by any legal evidence. It
was admitted on the part of the East India Company,
that they had received two different sums of 6,000
and 10,000 dollars, on account of the forces engaged
in the caption of Pftlembang, but the Court did not
consider that there was any legal evidence to prove
the receipt of those sums. As to the further sum
of 23,000 dollars it was disputed, and it might be
supposed justifiably dispiited, by the East India Corn-
Lmy, and there certainly was no legal evidence ad-
duced to prove that the sum of 23,000 dollars had
been paid an account of the captors. Under -all
the circumstances, therefore, the Court ,pronounced
that the claimants were only entitled to the gross
sum of 16,000 dollars.

Dr. LUSIIINTON, on behalf of the captors, ap-
plied to the Court to order that the interest should
be paid on the sum pronounced for.
The KING'S ADVOCATE thought the case was one
which did not call for such an order. The Court
could not fail to consider that the.sum pronounced
for was a small 'proportion of the whole amount
claimed.

Dr. LUSHINGTON contended that the ordinary
principles of justice required that the captors should
receive the interest of that property, which was
held from them for several years, and remained in
the possession of the East India Company.
Lord STOWELL pronounced that the captors were
entitled to interest.