Star.
London, England, 1805-08-07 00:00:00

LAW LNIELLIGENCE

COURT OF CHANCERY, AUGUST S.
CRIVALIIR DI Guam O. USURY LORD F'AUCONIIIO

♦NS OTN IRS.

We noticed tb6 cafe on Monday lall : it now
came before the Court on exceptions to the Mailer's
repent. The firit was with regard to the evidence ;
the licond, to the confirnition on that evidence.--
Nathaniel Piggot, one of the parties, died fince the
commencement of the fuit. It refpeited the will of
Anne Fairfax, dated the 17th of March, 1784. The
cattle was heard in this Court or, the 19th of pine,
dot, in confequence of which, the report, on nu-
merals faits, was referred to one of the Mailers,
and on the s6th of left month that report was given.
The will, after various devices, allitzned all the refl
and refidue of the perfonal dices of the tettattix to
her executors (the Defendants), upon a troll, that
they, t.r the furvivor of them, Ihould apply and dil:
pufe of the fame as fht: by a codicil Ihould
And for want of fuch appointment, then to pay and
apply it to Charles Redden and John de Garcen,
who were thus made her refiduary legatees. The
codicil was fuhfequently annexed, anti contained
(mall legacies to the following perfons, or communi.
ties To the Superior dale Benediaine Monks
of the North and South Provinces, :001. 2. To the
fon. Nlinillers of the Chapels of Gating, Lopley, and
Mtcklegate, tool. each. 3. To the Superiorefs of
the Bencdietine Nuns of Cambray, loci 4. To the
Soperiorefs of the Poor Nuns of St. Claire, cool.
5. To the Supedurefs of the Black Nuns of Pad.,
sod. 6. To the Superiorefs of the Benediaine Nuns
of Loraine, —. 7. To John Boulton, of Gilling
Caftle, rcaol. for the maintenance of a Catholic Mi
Miter in any fituation he Ihould fele&

The queltion on the original bill was. whether
thee legacies were valid ; or, whether being nuga-
tory, the rums fib intended to be applied, were to de-
volve to the tcliditary legatee, the prefent Plaintiff ?
Mr. ROMILLY, for the Plaintiff, Paid, that the ft l.
lowing queltions were referred to the Mailer, with
refpea to theft ecclefiaflical in:litutions : tlt, If there
were any Superiors to thefe orders ? Idly, If there
were Superiors, what was their office ; and whether
legacies could devolve to them ? Further, where
they were refident at the time of the death of the
telt:stria, and when the report was made ? The learn-
ed Count-el, after reciting the report of the Mailer,
dated the evidence which had been laid. before him,
and the codicil of the will. The principal authority
on which the report was founded, was the affidavit
of John Blurt, Doane of the Sorbonne, and of five
or fix other canonical gentlemen.
The Matter found there were eftablifhments of
the kind mentioned in the will ; that there were Su-
periors to there institutions ; and he not only points'
out their fittiation, but their duties. He gives the
amount if the whole eflate at 15,2171. of which
10,4781. is in a mortgage, and 1,6501. -the eftimate
of a houft belonging to the tellatrix in Grosvenor-
(beet. tie finds that aoool. had been laid out upon
fecurities, and he nate. the interefl accruing upon it.
Mr. Romney argued. that the Mailer. instead of
dating the eziglenee of thefe religious tircieties, ought
to have found in his report that they had been abro-
gated and deliroyed. The Plaintiff was a foreigner
it was true, but he was refident in this country, pay-
ing at least a temporary allegiance to the Sovereign,
and he was as touch entitled to the potation of the
laws of this country as any other individual. The
Plaintiff was the neat ell relation, and the objea of
the peculiar favour of the telt:mix. It was very ex-
traordina: y that the Mader, intlead of feeking pro-
fellional affillance for the eondrua ion of foreign laws,
had taken the opinion of clerical perfons, who would
be fuppoled to he wholly unacquainted with juridi-
cal fultjea. unconnected with the Cation Law.
Learned Counfel was fortunately povided with the
opinions of Francois de Turnot, a Counfellor of the
Parliament of Paris, born at Rouen. of the age of 42
years. This Getitleman depotes to the former es-
'lichee of the Orders dittirignifhed in the will, but
alien:, that on the 13th of February. 1790, they
• were fiipprelfed. He does not content hint elf with
giving his opinion, but cites hi. authorities. He lays,
that No. 45 ttfthe 31oniteur gives the decrees of the
National Atteuably, which, with refpal to tilde or.
ders, declarant, font el dvoteurent anoullii en France. He
lays, that Intuit the diffolution of their ellablifitments
a Superior was only a temporary chief ; that he was
retnoveuble at pleafure : that in law, if a male. he
was only a monk ; if a female, the was only a nun ;
and that, male or female, they took only fibs the be-
nefit uf thc infittution to which they belonged. Zalie.
gaud sequirit nionachue, ad monajlerimas aegairiiisr. The
mitt tit the Parliament of Dij..n declares legacies to
be void, the application of which was not fpecifically
aided. Religious perfons were considered, with re-
(pelt to property, as culprits doomed to death ; they
could receive no legacies. Among the authorities
%looted by the Learned Profelfor were, the etlid of
t 749 rettrating perform in Inortmain ; the Didion-
. .

monk, es loon Its he has made prnfefiinn, is dead,'
?wad tittilia ; he cannot poilifi property I all he ac.
quires is for the benefit of the convent. The lame
principle is recognized in Dertlzar't Coll:Mote de 7ortj:
prudence, title Mort Livilt, where the principal quell
tions on civil death are *Rated. To thefe he adds,
Loix Eeckfillliguee de la France, par Loreis de Herigitoi:
The affidavit of Monfieur Samuel Coffiart was ann.
ther refpatable fnurce by which the Mafia 11:61 not
been Alined in his decilion. He depoles, that by
the decree of the National Affembly, thefe religious
perfons were deprived of their-rank as the regular
clergy ; that they were thrown into the mats of le-
culars ; and that they no longer exifted as a canoni-
cal institution. The Learned C-unfel cited from a
MS. in the collation of the Britilh Mufeum, with
which one of the librarians attended, the ob-
fervance if poverty ordained by St. Benedift. Ne
guts pr forme aliguid dare oat ampere ;—net nihil omits°,
onmia omnibus font cominunia. Another difium of equal
importance, was that of the Cardinal De Tune.—
Net guifguam aliquid &cat. nee tefuntat aliguid fount.
Not even a pen, or a bodkin, ant graphium ant aces,
could by their own property. To thee the Learned
Conrail :Oders the decrees of the Council of Trent,
and the CatX MOnailiClN, all of which were arrang-
ed on the floor of the Court. Mr. ROMILLY was
greatly ifioniflied, that fuch an ecclefialiical ella-
blilliment was fisted as that of the north and tomb
province' of England. He had heard of the province
of York and Canterbury; but with this ecclefiaf
heal geography he was whoily s n icquainted, and
it fo much resembled the inftituii. n of a Catholic
hierarchy, that he could not wonder at the indig.
nation againft the Papal power among the lower
orders, althopgh heclifipproved of it. It WAS not
to be fuppofed, that the Legiflatiire could have
lately aged from the fentiment to which he had jull
adverted ; hut although the liberal mind would give
every poffible indulgence to the dilates of con-
lcience, yet it was neither difcreet nor decent, that
a report recognizing this canonical division of the
kingdom Ihnuld he admitted on the files of the
Court. After entering much at length on the prin-
ciples of foreign law, and on the general adoption of
thefe throughout Catholic Europe,the Learned Coun.
fel direfted his attention to the maxims of Britifh ju-
rifprudence. as Itated in Littleton, Coke, Brookes,
and Lord Redefdale, noticing in his progrefs the
na-
tutes of the to of Edward Vf. and of the 9th Geo.
[I. as applicable to this lubjed. He concluded with
remarking that thefe legacies could not be valid, be-
caufe the whole of the property which mull be ap-
propriated to them were either in mortgage or in
leafehold, and therefore in the nature of real prope.-
ty, fo that they could not be given in mortmain.
Mr.-Pic col-, on behalf of the Legatees, contended
that thefe Superiors were cot to be confidered as re-
prefentatives of a relig order, but-as individuals,
and as the private and confidential friends of the tef
tatrix. lithe piefent Plaintiff were the next of kin,
and connated with the teltatrix in the bonds of affec-
tion, it was fingular, that of this near and dear friend
the had not learnt the lame, for John, nct Joseph de
Careen, was appointed her reficloary legatee.—The
Learned Counftl thought, during the Ipeech of his
learned Friend,that he had been ii anfported into Come
Catholic country, where the Papal rights were mak
zealoufly fupported. He would confidently main-
tain, that even in the time of Henry VIII. before
the reformation, no fuch dottrines would have been
endured as were urged on the prefent occafion.
Mr. PICCOT followed his learned opponent through
the feveral Englith authorities he had cited, and con-
tended they were all favourable to the legatees.
The LORD CHANCILLoa-0 The firft words are, I,
give to each Superior of the Monks of the North and
South province. Can I recognife an any man or wo-
man the Charaeler of Superior in the North and
South of England ?"
Mr. Paccior My. Lord, this is only the method
in which the teftatrix hat chofen to designate parti-
cular perfons, et certain #l, good cerium fedi;
m
pot o.
Here is nothing fiduciary, nothing in at, as in the
cafe of Smart and Prugen, 6 Vefey, 560. That was
a bequestto Sifter Winifred Clare, the confideration
for which was, that fifty MARS, and one annual
malt, for the poor foul of the teliarrix, were to be
performed. Some of thefe Eccleflailical Societies
are now eltablifhed iii Dorfetfhire and in Lancafhire,
, and the fame names, forms, and diftinftions are
continued wherever any of thefe communities 'lade."
—The ibluntent dferra

THOMPSON AND FOREMAN V. BUNN.

We' have noticed the arguments in this caufe in
two recent Reports ; and, in the lall, the recr mmen-
darion of the CH MCC!. LOA of an amicable adjustment
of the difference• between the parties.
AS his Lordihip was about to pronounce judg-
ment, Mr. ROMILLY interpofed, and lignified, that
according to the advice of his L,rdlhip, all matters
in dilpute in this carve were referred to the arbitra•
tioa of Mr. Thomas Maltby, Mr. William Hood,
and. Mr: Samuel Brandram. Pet mltfion was given
to the arbitrators to' enl•rrge the time, and it was
agreed not to the any bill in this Court until the
award was made.

The Lola) CHANCILLOIL." I think they have
aited very wifely."

IARTTLILOT V. HAWICFR.

for the i'l;intiffi;this cafe, Rated
that his Client had married the mother of the Defen-
dant in the year 1783. fn May, 1786, Inc Lady
eloped from her hufband, and in September, 1787,
during the interval between which and tfty, '786,
the Plaintiff had no accers to his wife, the Defendant
wilt born. It was therefore nhvi,us, that (he was
•an illegitimate child, and in consequence, a divorce
a menja & thorn had been obtained againfi her mo-
ther. The Plaintiff held certain Mates in life-rent,
which, in' the event of their being children of the
marriage, went to them in remainder, but, in the
failure of filch children, the fee fimple reverted to
the Plaintiff• The bill Hated, that there was danger
of the Defendant's claiming an interell in thefe
climes as a legitimate child; and, AS the Plaintiff
had no power at prefent to compel a legal in.
velligation into her right in this charader, prayed a
commißion, while witnelLs yet elided who could
prove the fans, for perpetuating the teflimony of
witneffes to eltablillt, that from May 1786, to Sep.
tember 1737,• the Plaintiff had not had any accefs to
his wife, the Defendant's mother. The Learned
COunkl Rated, that he underßood it was objettedby
the Defendant, in:the leiteral*plea of demurrer, that

' enhld tint he entertained.' Thi. I.e wag
difpotte. and. in ancwer, addut I :..he ce

v: May, where a bill having hecn filed to
the Plaintiff was a legitimate child, a croft
alfo filed, to (hew that he was nut legitimate ; And
though that averment was clearly negative, was e 1.
tertained. In the fame way, the Learned C .
let maintained, if the Defendant in the prefekt cafe
alledged, that his evidence was merely Revive.
was in her, the Defendant's, power to overturn it, by
filing a crofs bill.

Mr. Aorta, fnr the Defendant, argued that no hill
for perpetuating tetlimony, merely rf a negative na-
curt, could be entertained. The cafe of May v. May
was not altogether, nor, indeed, at all in point.—
There it was afferted, in contradiaion to the plea of
legitimacy, not only that the child was illegitimate,
but a particular fad was relied on, from which filch
illegitimacy would be inflrufted. Here, however, the
Facts were completely negative, or, rather, refolved
into an inference deducible from ciiciimltances not
fully and fultantially let forth in the bill. There were
however, betides this plea, which the Defendant
teemed in itfelf fufficient, the being in Inch a cafe en-
titled to plead only by way of demurrer, other air-
cumftances which his L iii.ffhip would think not
altogether unworthy of confederation. The elope-
ment, as alTerted in the bill, took place in the year
1786, and the Defendant was, according to the
lime tiatement, born in the year 1787. It was not,
however, till the year 1790, that the atlion against
the adulterer was brought. The divorce a morfa et
thoro was not obtained from D.,flors' Commons till
the year *797 ; the Bill now demurred to was not
filed till the year rtlot, and at length, after a lapfe
of 18 years from the birth of the Defendant, came
on to be argued in the year tBog. The Learned
Connie' begged his Lordthip to confider, if Bills of A
nature like the prefent were at all to be lillencd to,
whether they could be entertained under circumaances
fimilar totfinfe which now prelemed themfelves. The
Defendant was equally a min I now as the was at the
time of her birth, or at the time when the action of
damages was brought against the feducer of her mo-
ther. If perpetuating the tellinsony o• all the witnef-
les able to prove how far the Plaintiff had had accefs
to his wife, from May, 5786. to September, 1787,
had been the object in the view of the Plaintiff, how
could he have done fo more effectually than by filing
a bill to that purpofe, immediately after the birth of
the child ? Then there might have been lime ground
for fuppofing that a fair and complete teltimony
might have been procured. The Defendant was then,
as much as at prefent, an adult in the eye of law, and
then the circumstances of her cafe, and of the inter-
courfe b:tween her mother and the Plaintiff, her re-
puted father, mu'l have been more generally known.
Eighteen ye trs, however, had been allowed to elapfe,
during all which time it was in the power of the
Plaintiff to have filed a bill fimilar to the prefent..—
Having omitted, during all this great fpace of time,
to do to, what inference naturally fuggetled itfelf,
but that the evidence which could have proved the
accefs having now failed, the Defendant willed to
avail himfelf of that occurrence to edablifk the nega-
tive of the potition. The Learned COW id therefore
febmitted that tie demurrer mutt be allowed.
..The. LORD CHANCILLCC conlidered the pelvic as
a quettion of the very high:it importance. It the
point of jitrifdietion bad remained entire, he Omuta
have been inclined to reject it. Having, however, Co.
fat as he could recoiled in" his prailice, been eni-
formly admitted by ever y Chancellor who for the
latt twenty-five years had fat in that Chair, he was
bound to follow a fimilar courfe. There was, how-
ever, in the preterit bill, a want of a fpecific fate on
which to ground the. inference (which alone it was)
of nun-amt:, which, if not fuppiied, he thought muds
prove fatal to the bill. As, for inllance, it was net.
charged that from the month of May *786 to Au.
gull 1787, the Plaintiff retitled entillantly in loch
and fuch a place, and never quitted it, while at the
fame time the mother of the Defendant remained in
another, and ditlanr flotation, to which; in the na-
ture of things, the Plaintiff could have no accefs, but
it was deemed fufficient, without fpecifying the fait
as to place of abode, to affert that no fuch accefs
had been bad. He therefore willed, to lave expence
to both parties, that the Plaintiff &wild he allowed
to amend his bill. If he chofe to do fo, is would he
the taller for the Defendant, a; her alien ion would
be then called to a fpecific fad. If the Plaintiff fail-
ed fo to amend his bill,his Lordlhip would difpofe of
it accordingly. In the event of the bill being amend-,
ed, the Defendant would alto be entitled •to amend
her plea of demurrer, and then the ,question on the
law of the Court on that point would come to a fair
dircuffion.

DOWNSHIIIt ELTCTION—On Wednefday evening
the date of the poll for the county of Down ttood as
follows :

-For Vireount Caftlereagh •
For LieutrnAut Coload Meade
Majority
State of the poll on Thutfdaty
Fur Vireount Cattlaeagh -
For Licutchaut COLA: RI Meade

' 114
tos
X 24

.-;

Alajcit it y —3O
GLOUCESTER ELECTInN.—We are informed by
our Correlpondent from °Cid:sneerler that the Eleetion
of Captain MORRIS, for that place, is now confider-
ed As cersi,in.—The attempts which have been made
to convert this opulent and refpeClable City into a
Family /Arome, have again rnufed that Ipil it of In-
ceisenslance which, at the memorable contelt in 1739,
fecureci to the Freemen of Gloucefler a worthy and
indcpendant Citizen of their own to reprefent them
in Parliament, and which oa the prefent occafion
cannot tail to cruwn their exertions with fimilar
tucceiS.

The quantity of rain which fell during the• lea
month, was equal to three inches and a half in depth.
Tire barometer on the evzrage was 30,047, beiqg
hig!.er than during any given month for leveret yeafs
pall.
It is a cirenmflance highly flittering to this ccrun
try, that 'although the little Emperor of the Gauls
fuc.eeds in general, but too ....ell, in prejudicing 'he
minds of hio newly created tititjetts against us, all his
endeavours to reitrain them from pnrchafing in our
Nails or adventuring m our Lotteries, have hitherto
proved inelfatuAl. Such is the Jeff of a fair and
liberal fyitem of fpecutation, where the foccefsful
adventurer cannot be deprived or defrauded of his
fortunate purehafe, but has it amply fecs•esluL!.......Arins

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