The Sun.
London, England, 1842-01-31 00:00:00

HERRING V. CLOBERRy.
The arguments in this part-heard case were resumed
this morning, and occupied his Lordship the whole day.

DAVIS V. THE EARL OF LICHFIELD.

. - ROLLS' COURT, Jan. 28.
DAY V. CROFT.
Mr. TINNEY said this was the petition of the plaintiff
praying that it might be referred to the Master to as-
certain whether it would be for the benefit of the testa-
tor's estate, that Mr. Samuel M'Dougal should become
the purchaser of certain property mortgaged to him by
the ' testator ; and if any, what proceedings should be
taken in equity for that purpose. The petition stated,
that the estate comprised certain copyhold property which
had been mortgaged to Mr. M‘Dougal, for the sum of
6,000/. It then stated the death of the testator, the
mortgager of the property, after which event the execu-
tor continued to pay the interest on the mortgage, till
within the last year and a half, when the interest had
been•in arrear to the amount of 430/. The petition then
went on to state, that the said copyhold premises were
in a very dilapidated condition, and required immediate
repair. The Solicitor had made repeated application to
the executors of the mortgager for payment of the in-
terest, and also to put the premises in repair, but they had
stated that the whole of the estate of the testator
had been exhausted in Abe due course of administration.
In consequence of this the property was surveyed on the
19th of January, and from the letter from the surveyors
it appeared that they could not hold out any well
grounded expectation that any sum above that of 6,500/.
could be obtained for the property. This did not include
the fixtures. The property had cost the. testator, Mr.
Jones, 14,000/., and owing to the depreciation of the
value of the property it was now insufficient to pay his
debts. Under these circumstances he thought it would
be to the benefit of the plaintiffs to have this property
conveyed to the executors of the mortgagee for the
sum of 6,500/., which sum was to go in liquidation of
the mortgagee debt and interest in arrear, the executor
of the mortgagee to pay for the fixtures in the general
way. The petition now prayed that this should be re-
ferred to the Master to know whether this course would
not be for the benefit of all parties.
His LORDSHIP ordered it to be referred to the Master,

. .
DUKE OF CAMBRIDGE V. THE DUKE OF BRUNSWICK.
On this case beingcalled on, this day Mr. HEATRFIELD
said he wished the case to stand over till Monday, as his
clients, the late Solicitors to the Duke of Drunswiek,
had not had time to answer a certain affidavit respecting
them in this cause, and which affidavit was only, filed
the day before yesterday.
Mr. PEMBERTON said that the solicitors named had had
plenty of time to make the required answer.
His Low:mu-IP—When do you say the affidavit was
made, Mr. Heathfield ?
Mr. IlEsnitriziz--Theiday, before yesterday, my Lord.
His Lonnsnip—Then I will take upon myself to say,
that there has been :plenty of time to get oopies. In all
cases under my experience—and I have had a good many
—where neglect has been charged upon the office, I have
found that charge of neglect was unfounded.
Mr. PEMBERTON said this affidavit was relative to cer-
tain papers which were held by the clients of Mr. Heath-
field, and which they refused to deliver up, in conse-
quence of the Duke of Brunswick having disputed their
bill. These papers were necessary to be produced in
their cause, and must be produced before the case could
be_ gone into.

Mr. HEA.THFIELD said be could not take upon himself
to make any arrangement with respect to these papers,
as he had received no instructions relative to them.
His LORDSHIP—It is not usual for a solicitor to keep
papers necessary to a cause because a party chooses to
employ another solicitor, is it?
Mr. HEATIIFIELD said it was not shown that these
papers were necessary to the cause. His clients had not
seen the affidavit referred to, and therefore they could
not make any answer to it. If his Lordship would let
this case stand over till Monday, the answer would be
produced, and Ur. Pemberton could then go on with the
case if he thought fit.
__. _.

His LonpaHYP—Mr. Pemberton can go on with the pe•
;ion now if he thinks proper.
The case was then ordered to stand over till Monday,

'RT OF QUERN'S BENCH, Jan. 28.
IN RE SAWYER.
This was an application to take an affidavit of the de-
fendant, an attorney of the Court, off the file, and for
which a rule had been obtained in the course of the pre-
sent term.
The Attorney and Solicitor-Generals were heard to-
day against the rule. The application was founded upon
some alleged irregularity in the conduct of Mr. Sawyer,
with respect to the management of a suit at law, but the
facts were of no public interest, and were naturally of an
ex parte nature.
The CounT was of opinion that the rule ought to be
discharged, but without costs.
The case occupied the attention of the Court upwards
of six hours.

CO

The ATTORNEY-GENERAL moved for a rule in this
, case to show cuuse why an order of Mr. Baron Rolfe
should not be set aside. The order was that the defend-
ant should have a month's time to plead to an action
brought by the plaintiff, and that he should be at liberty
to change the venue into Surrey. The action was to
recover the payment of a bill of exchange to the amount
of 4,0001. from the Earl of Lichfield. The plaintiff
wished that the action should to be tried in London, and
that the case should go on, so that he might have the
benefit of the proceeding he had taken in the usual way.
It appeared from the affidavit of the plaintiff that the
bill had been given in payment of a loan, and that Count
D'Orsay had acted on the occasion as the friend of the
Earl of Lichfield. It was stated that Baron Rolfe had
not read over the affidavits produced on behalf of the
plaintiff when he had made his order.
The COURT—Take a rule to show cause, to be heard
in Chambers before Baron Rolfe on Monday.

VICE-CHANCELLORS' COURT, Jan. 28.
(Before Vice-Chancellor BRUCE.)
OLIVER V. LATRAM.
In this cause, with the hearing ,of which the Court
was engaged the last three days, his Honour gave judg-
ment to-day at the close of the arguments.
The plaintiff was the Rev. William Oliver, the per-
petual curate of the parish of Barleston, in the county
of Stafford, and Joseph Latham and others were the de-
fendants. The object of the suit was the recovery of certain
descriptions of tithes from the defendants, who occupied
glebe and other lands in the parish.
His HONOUR, in giving judgment, said that the case
was one of considerable complication, but that the Court
had received such valuable assistance in it from the Bar,
and had had such opportunity of inspecting all the docu-
mentary evidence, that he did not feel it necessary to
delay the statement of his opinion. The tithes
in question were tithes of hay, milk, calves, and ajist-
ment. Moduses were set up with respect to each ; ex-
cept as far as regarded that' portion of the lands that
were not coloured in the map, concerning which hay was
sought. The title of the vicar was also denied. That
as far as the moduses were concerned, seemed a course of
proceeding perfectly competent to the defendant. The
vicar's title was a matter of consideration of a na-
ture quite distinct from the question of the maduses.
The rectory had been a lay rectory from the time of
Henry the Eighth ; there had been no vicar, and the
ecclesiastical functions were performed by a perpetual
curate for at least a century. The term " perpetual
curate" had been for that length of time legally and
properly applied .to the incumbent for the time being.
It appeared established by the evidence, that for
a similarly long period no tithes of the de-
scription sought by the present bill, nor any compen-
sation for them had been received or demanded by the
impropriate rector—that impropriate rector being resi-
dent in the immediate neighbourhood, a fact not unim-
portant in the present discussion. It was manifest that
for upwards of a century past, whatever compensation
had been paid respecting the tithes in question, was so
paid to the curate or enjoyed by him. It appeared,
also, there had been a corporation in the parish for the
purpose of acquiring and holding property of the above
description, and that that corporation was now repre-
sented by the plaintiff. Under those circumstances his
Honour found it impossible to entertain any very
serious doubt, that as between the plaintiff and the de-
fendant a title must be considered as established in fa-
vour of the former. The mode of his participation was
another question. The hay tithes were to be considered
in three branches, namely, the tithes of the
land not coloured in the map ; the land co-
loured red, and the, land coloured yellow. With
respect to the first there must be a decree for the
hay tithes, which had not been paid. Respecting the
two latter, the evidence was all satisfactory, but having
regard to the terriors, especially that which had been
admitted by successive curates upon this particular sub-
ject, his Honour did not think that such a case was made
out on the part of the curate as against the evidence on
behalf of the defendants, as to induce him without fur-
ther investigation to give his decision. He thought
that was a case demanding further inquiry. There
must therefore be an issue, in the language of the
answer, with respect to the alleged satisfaction of the
lands coloured yellow by means of a piece of land called
Dusdilowdole. A. second issue to the same effect re-
specting " the Priest's Meadow ;" and, lastly, an issue
both to the tithes of calves and ilk ; and that also to
be in the language of the answer, with directions to be
given to have it admitted before the jury, that if the hay
tithes were payable in kind for the red and yellow lands
they should be payable to the curate. Similar directions
to the jtiry to be also given respecting the tithes of milk
and calves. The jury were also to have, with all just
exceptions, all the documentary evidence laid before the
Court. The Master to take an account respecting the
hay tithes of the white or uncoloured lands, and a general
account of ajistment ; and if any defendant, an occupier
of the last mentioned land, should not appear to have
owed anything at the time of the filing of the bill, no ac-
count to be taken against him. The Judge to be at
liberty to endorse special matter on the postea. The
issues to be tried at the next Gloucester Summer Assizes.
(Before Vice-Chancellor WIGRAX.)
ALLEN V. CORNFIELD.
In this case the property, which was the subject of
dispute, consisted of several small houses in Northampton.
By-consent of counsel the cause was ordered to stand
out of the paper generally.
The 'cases which came before the Court involved
scarcely any feature of public interest.

COURT OF COMMON PLEAS, Jan. 28.
BORODAILE V. HUNTER AND OTHERS.
This was an action on a policy of insurance for LOON.,
upon the life of the Rev. Mr. Borodaile, who was alleged
by the defendants to have committed suicide by throwing
himself into the Thames from Battersea-bridge, and
thereby forfeited the insurance; it being expressly con-
ditioned in the deed that the policy should be voided if
the insured came to his death "by his own hand." The
case was tried at Guildhall, before Mr. Justice Erskine,
when it was contended for the plaintiffs, first, that
there was not sufficient proof that the deceased
threw himself into the river ; and, secondly,
that even if he did so, that was not suicide
in the meaning of the policy, or in law, as the unfortu-
nate gentleman, who had suffered shortly, before some
severe pecuniary losses, was not in a sound state of mind,
at the time of the act. The Court left it to the Jury to
say whether the deceased was insane at the time, and if
so, they would find for the plaintiffs, as in that case the
policy, notwithstanding the express words of the condi-
tion, would not be voided, the insane not being responsible
agents. But if, on the other hand, they. thought the
proof of insanity not sufficient, they must find for the
defendants. The Jury were not able to agree to
a finding that could satisfy the. Court or the
Counsel on either side ; for they would go
no further to determine the question of sound mind,
than to say that the " deceased voluntarily- threw himself
into the Thames with intent to destroy life, but that he
did not know right from wrong at the time." To save the
parties from coming down to a new trial upon the ambi-
guity of this verdict, it was agreed, on the recommenda-
tion of the Court, that a verdict should be taken for the
defendants, with leave to the plaintiffs to move that the
verdict should be entered for them, so that the Court
might decide, without another Jury, whether the find-
ing was tantamount to one of insanity.
Sir T. WILDE this day moved ,accordingly, and ob
tanned a rule nisi.

Sittings at Nisi Prius, at Guildhall, before Mr. Justice
CRESSWELL and a London Common Jury.)
POWERS V. BARER.

The plaintiff is a smith, the defendant a confectioner
or cook in the Commercial-road, and this action was
brought to recover 84, as the price agreed for an
oven made for the latter. The defence was that the
oven did not answer. To this there was a re-
plication that the defect was occasioned by improper
setting, the defendant having employed his own brick-
layer instead of allowing the plaintiff to complete the
work.—Verdict for the plaintiff:
IPARSES V. GREAT WESTERN RAILWAY COMPANY.
This was an action against the Company, for work
and labour done, and for materials supplied, by
contract. It appeared that the plaintiff contracted
to supply stone, and make a raised way in the neigh-
bourhood of Compton (Berks), at 3s. 9d. per yard.
The agents of the Company disapproved of the man-
ner in which the work was done, and made altera-
tions at an expence of 3d. per yard, informing the
plaintiff from time to time that a corresponding deduc-
tion would be made. Ultimately the plaintiff refused to
allow the deduction, and brought this action for the
whole amount of the work done. The Jury found for
hum, in damages 571. Mr. Sergeant Ludlow obtained a
rule nisi for a new trial, on the ground that the verdict
was against evidence.
Mr. Sergeant BOXPAS this day showed cause against
the rule, which, however, was made absolute, after hear-
ing Mr. Sergeant Ludlow in reply.

POLICE INTELLIGENCE.
MANSION-ROUSE.
On. Saturday an elderly man of respectable appear-
ance, named John Reshen, was brought before the Lord
Mayor in the custody. of Roe, the officer, charged by Mr.
Freshfield, the solicitor to the Bank of: England, with
having personated Robert Bamford, the elder, and trans-
ferred 110 Z Long Annuities, standing in the names of
Robert Bamford, sen., and James Berryman Tippett, on
the 16th of May, 1840.
Mr. Freshfield attended upon the part of the Bank of
tEhnegplrainsdo,ne andr. Mr. Clarkson, the barrister, attended for

Mr. Thomas Hall, of the Long Annuities Office in the
Bank, stated that, on the 15th of May, 1840, the sum of
110/., which stood in the book in the joint names o
Robert Bamford, the elder, and James Berryman Tip.
pett, was transferred to the name of Charles Clayser.
Witness did not recollect the person of the prisoner, but
the individual who made the transfer signed the book,
which was accordingly produced.
Mr. Timothy Surr stated that he was acquainted
with the prisoner, and the prisoner's wife's family. The
prisoner had been a tobacconist on Cock-hill, Ratcliffe,
and afterwards resided at Romford, and carried on
business there as a plumber. He subsequently and at
the present time resided at Brighton, and he married
the daughter of Mr. Bamford, senior, of Tilbury, Glou-
cestershire, who was now dead. Mr. Tippett was uncle
to the prisoner's wife.
Mr. Clarkson asked witness whether the prisoner did
not sustain a high reputation ?
The witness said that such was the case until within
the last few years, when-Mr. Tippett refused to have
anything at all to do with him.
Mr. W. H. Mullens, stockbroker, stated that he sold
for the prisoner, ou the 16th of May, 1101. Long An%

NAVAL INTELLIGENCE.
PORTSMOUTH', JAN. 28.—The Vindictive will go into
harbour at high water to-day, and will be taken into
dock to be examined, in order to ascertain to what ex-
tent she has been injured by her late disaster. It was
intended that she should proceed to China with the flag
of Rear-Admiral Sir T. Cochrane ; but whether such
intention will now be carried out will depend entirely
upon the state she is found to be in upon examination,
and how long it will take to repair the damage she has
sustained.
The Warspite returned to Spithead on Tuesday even-
ing last. Her powers of sailing are found to surpass
even the most sanguine expectations of those who knew
her of old, when as a 74 on the South American station,
with the flag of Admiral Sir T. Baker, she was noted as
a fast sailer, and made one of the quickest passages from
Rio to this country on record. On Monday night, at
eleven o'clock, she was in company with the Vindictive,
off the South Foreland, and on the Tuesday morning she
anchored at Spithead, while the Vindictive did not reach
the offing until Tuesday afternoon, and was obliged to
bring up there, the tide being against her and the wind
having dropped. It was in removing from the anchorage
to endeavour to reach Spithead on the following morn-
ing that she unfortunately got on shore. The Warspite
sails admirably, even in a moderate breeze, but it is
when the wind is fresh that she displays her speed to
the greatest advantage. It is considered by competent
judges that few, if any, ships in our own, or any other
service, can equal her. She is now having hor bulk
heads fitted up to make the additional cabins necessary
for the accommodation of Lord Ashburton and suite.
The Hastings, 74, is nearly unrigged, and will be paid
off to-morrow.
The Queen, 110, is likely to remain at Spithead for
three or four weeks longer, as she is still considerably
short of her complement of hands, and it is expected it
will take that time before she obtains the whole of them.
A Dutch man-of-war is lying at the Motherbank. She
saluted the British flag yesterday, and the compliment
was returned by the St. Vincent, which hoisted the Dutch
colours at the fore.
The Rhadamanthus, steam troop-ship, sailed on Tues-
day for the Mediterranean, having on board a company
of the Royal Sappers and Miners, tinder the command of
Lieut. Ford, and a detachment oigunners and drivers of
the Royal Artillery, under the command of Capt. Dunlop.
She also takes out 50 boys for the Mediterranean squa-
dron, and has 30 women and 45 children on board, being
the wives and families of the soldiers on board.
the The e
oaßs
tapaid,A
Africa
in
hutihtee ready
courseof
for sea
the nextand
at Spithead.—The Queen, Warspite, and Vin-
dictive elel ks.il for
a
(at St. Helen's).
Ships in Harbour.—The Carysfort, Rapid, Nautilus,
St. Vincent, Victory, Excellent, Royal George, and
Hastings.
PLYMOUTII, JAN. 27.—This port has not escaped the
visitation of the tremendous gale of Wednesday last, and
it is feared that from the coast of Cornwall sad accounts
are forthcoming of the effects of its violence.
The Delight, 10, packet-brig, Lieutentant-Commander
William Lory, arrived here yesterday with the mail from
Mexico. She intended to have put in at Falmouth, but
was driven further up the Channel by the furious gale,
The Delight has brought home, from Mexico, a quantity
of specie for the merchants. ie sailed from Falmouth
for Mexico on the 17th of September last.
The spy, 3, Lieutenant-Commander J. M. Potbury,
arrived here yesterday, from Portsmouth. It blew such
a hurricane the whole of the day, that to secure her safety,
in the Sound, she was obliged to hoist a signal for an ad-
ditional anchor, which was supplied to her by the Tavy
lighter. Scarcely any boat could rest for a moment in
the water on' her keel.
The Implacable, 74, Captain E. Harvey, lately from
the Mediterranean, it is expected, will be paid off on
Monday. A survey is ordered to be immediately mad.
on the Implacable, to ascertain if she is eligible for re-
commissioning for service in the West Indies, and how
Jon it will take to get her ready again for sea.
"-che Hope, 10, packet-brig, pmaucler G. W. 54eit,