Star.
London, England, 1822-11-20 00:00:00

frOilliT OF CHANCERY, NOIEMBER 19.

BUR V. WARD.
This important case is now in course of argumentl
on the point whether a new trial ought to be granted.
The merits of the suit, .so far as they tranipired by
the statements of Counsel, were these :—Mr. Wm.
Cotton, a lunatic, possessed large estates in Derby-
shire and Shropshire. His younger brother, Mr.
Evelin Rowland Cotton, was committee and receiver
upon his estates till his death, in 1795. Mr. Ward,
the defendant, nephew of the lunatic, and of Mr. E.
R. Cotton, was left heir by the latter, and by consent
of all parties, in 1795, became committee and re-
ceiver op the lunatic's estates. In 1820 Mr. William
Cotton, the lunatic, died. A question then arose re-
specting the legitimacy of the lunatic. It was con-
tended that his father, William Cotton, had children
by Rebecca Webster before he married her In 1742,
and that Mr. Evelin Cotton was the eldest male issue.l
The consequence of such illegitimacy woold be to
give Mr. Ward, as heir-at-law, all the estates of the
townie, who died intestate. Mrs. Beer and others
claimed an equal division of the intestate's estates as
legitimate sisters of the legitimate William Cotten.
An issue had been directed to try the question of le-
gitimacy ; and after a trial of four days, before Chief
Justice Dallas, in the Court of Common Pleas, a ver-
dict of illegitimacy was returned. Application was
then made to the Lord Chancellor for a new trial, and
the Solicitor-General appeared to have been fully
heard at some former period in support of the appli-
cation. This morning, at nine o'clock,
Mr. ScatticerT was heard against a new trial.—
The Learned Gentleman argued that no ground had
been laid far a new trial in the circumstances of the
documentary evidence. or the reputation proved by
parole evidence. Doubts had been cast on the legi-
timacy of Mr. William Cotton's children. In 1746,
a deed of settlement was made by Mr. Rowland Cot-
ton, William's father. The marriage was there men-
tioned, but not a word respecting the time, the place,
or the person by whom. He left it to the sagacity
which his Lordship was known to possess, to say
whether, if the marriage had been so early as was
contended, all those circumstances would not have
been mentioned in or der to remove all doubt. The,
affidavit of Mr. W. Cotton to the Surrogate stated
him to be a hachelor in 1742, and Rebecca Webster
a spinster. Mr. Sweetapple, the Clergymai. and Mr.
Reynolds, the Steward of the Duke of Kingston,
signed the marriage certificate, and their hand-writing
was proved. Mrs. Rebecca Cotton had a box which
he kept with great care, and in it after her death, the
certificate of the- marriage was found. Futile at-
tempts were afterwards made to prove that the do-
cuments found there had not been in Mrs. Rebecca
Cotton's possession.
The Loan CHANCELLOR said they were evidence if
they had been in her possession, not otherwise.
Mr. SCAR LETT.—The existence of them is evidence,
for who had an interest then in forging them ?
Lady Corbet, aunt of Lord Combermere, and Colo-
nel Calverly Cotton, her brother, proved the reputa-
tion to have existed when they were young, that Re-
becca Webster had been servant in Mr. Rowland
Cotton's house, and Mr. W. Cotton's mistress before
she became his wife. The Counsel on the other side
had assailed the witnesses on his side as greyhounds
did a hare or a fox.

The LoRD CIIANCELLOR.—They might perhaps
come tinder the late Act for cruelty—(l.aughter).
Mr. SCARLET.T.—Very likely. The contradictory
evidence now alleged as wound of new trial they
had had in Court at the teal, and had not ventured
to call. The letter of Mis. Mary Cotton, which had
been refused by the Judge, he read, to chew that it
had no relevancy to the case. It was a good house-
wifely letter, and prescribed for the jaundice and
quinsy, but had no reference to the question. Mr.
Carr, who was solicitor in the cause for Mr. Ward,
and secretary for lunatics, had been asked to pro-
duce documents which were in his office as secretary,
but he declined to do so without an order. _ _

The Loma Cursscatl,oftd--If be should again be
solicitor in a cause, to which I have no• objection,
and has notice to produce papers in his,possession,
as my secretary, he ought to inform the party that
they must apply tome, and not to make the objec-
tion at the trial. (This remark his Lordship fre-
quently repeated).
Mr. SCARLETT contended that the documents
could be of no service to the plaintiffs.
Me LORD CHANCELLOR asked if there bad been
any savings during the ltinatic's life?
Ms. Catta.—One hundred thousand pounds.
The LORD CHANCELLOILe..rAiId what says the'
Crown to that ?
Mr. WETHERELThere is a suit in the Com-
tisons for that.
Mr. SCARLETT came now to what he considered a
very important part of the case. It had been urged
that Mr. Ward, holding the estates for 24 years, as
those of a person lawfully possessed, could not now
come into Court and dispute the legitimacy. From
any other party the imputation would be just: but
they on the other side were the party who affected
this conceit. Their solicitude and anxiety was the
sole cause of delusion, if delusion existed. The other
parties had considerable allowances paid by Mr.
Ward as committee and receiver. A case bad been
hid before the late Mr. Sbadwell : and Mr.Vanhey-
thuysen, then secretary of lunatics, and solicitor to
all the family of the Cottons, recommended that no
inquiry should be made into the title when Mr. E.
It. Cotton died in 1795.
The LOAD CHANCELLOR.—I have no hesitation in
saying, if I had known what you now state, that I
would not have directed an issue. I would have
given possession to the plaintiffs, who were stated
befoie the Master, with the knowledge of Mr. Ward,
to be co-heiresses in 1796, and left Mr. Ward to
bring an ejectment.
Mr.Sommarr said, if he had then been Mr. Ward's
Counsel, he would have advised that course, [orb*
would then be plaintiff.
The LORD CtiANcELLou.—Am I to make as order
now on the result of an issue which I would not have
directed if I had known the facts? It is from the
care which I am bound to throw over all lunatics.
that I Inest take care not to be misled by the con-
sent of parties.
Mr. scAm.m..Shall parties who consented be
allowed to come forward now and complain ?
The Loi Cansemzon..Can I with safety to

•
lunatics act epos their. couseut2L—Mr. SWIRL/TT said
he had done, then.
The Luau CHANOELLORYOU have stated the
case very ably, and inn manner that must be 'satis-
factory to yourself and to all parties ; but, according
to my present opinion, 1 would not have ordered
the issue if I had known what I now know.
Mr. Serjeant VAUGHAN referred to a letter from
Mr. Carr to Mrs. Beeryfor the arrangemests respect-
ing
_the lunatic's funiral.
mr.SCARLETT said, there had been a-compromise
then by the advice of erniavt Counsel, and the plain-
tiffihad been offered a large proportion.
The LORD CHANCELLOR.—I don't say that that
would not have been a very prudent thing, but it
ought to have been concealed from me.
Mr. WETHERELL followed on the same side with
Mr. Scarlett, till the rising of the Court at two o'clock.
VICR-CHAT'ELLOWS COURT, NOVEMDER is.

STEWART V. STUART, STREET, MID SIUDPORD._

Mr. BELL stated, that in this case a bill was filed
by Wm. Stewart, Esq. against Messrs. Stuart and
Street, the piincipal Proprietors of the Courier News-
paper, and against Mr. Mudford, an alleged Proprie-
tor and Editor. The bill prayed that the defendants
might be compelled to pay the plaintiff one half-
year's profits upon two twenty-fourth shares, and also
to pay to the plaintiff £129. 13s. which he had by
mistake overpaid for those shares. Thirdly, it was
prayed that the defendants might be restrained from
selling any shares of the Paper without the plaintiff's
consent, and also that they might be compelled to
render him an account of the profits and disburse-
ments of the concern. The question turned, as it ap-
peared from the voluminous pleadings opened on thei
part of the plaintiff, as to the rights of the latter,
upon the construction of the deeds of assignment of
two shares. From Mr. Belles statement it appeared,
that from the year 1799, the Courier was carried on
jointly by the defendants Daniel Smart and George
Street. In 1308, Mr. Stuart became desirous of dis-
posing of some of his shares, and Mr. Paelder, a coal-
merchant, was introduced, but in consequence Of
some objections made to him by Mr. Street, as a per-
son from his pursuits incompetent to take a share in
the conduct of arch a publication, Mr. Paulder with-
drew. Articles of agreement were drawn up at that
time between the two defendants, Stuart and Street,
for the future conduct of the Paper ; and in these ar-
ticles it Was Agreed, that as they were equal proprie-
tors, the Paper should be divided into twenty-four
shares; that Mr. Stuart should be the senior proprie-
tor °lathe first twelve shares, and that Mr. Street
should be the senior proprietor of the second twelve
shares, reserving to. each other special privileges in
case of the sale of any of these shares. It was agreed
that in case of either or any proprietor wishing to sell
out, the others should have the right of purchasing
it upon a scale of prices according to the number
of sheets sold for the three calendar months before.—
If the sheets sold should amount to 600 per diem, the
copyright should be taken to be worth £lOOO ; and
frir every hundred beyond 600, the copyright should
be taken at 4:300. As the profit increased greatly
upon 2500, the sale of an Evening Newspaper for
every hundred sheets sold beyond 2500, £4OO was
agreed to be given in the purchase of the copyright;
and it was agreed, that if the sale amounted to 3500,
the copyright should be taken as worth £7OOO ; and if
it amounted to 4000, £12.400 should be taken as the
value of the copyright. If the proprietor or pro-
prietors should be unwilling to buy the shares for
disposal at this price, the holder' should be at liberty
to sell to whomsoever he chose. The person pur-
chasing was to be bound to give a bond to abide by
the same regulations. In 1819, Mr. Stewart; the
plaintiff, entered into a negotiation with Mr. D.
Stuart, and ultimately became the purchaser of a
share of the Paper from him, and also. of one from
Mr. Street, upon giving for the two a sum in propor-
tion to the four last years profits brthe Paper, which
on the last year was stated to produce £6OOO clear
profit. It was charged in the bill, that in the state-
ment of profits, there had been a mistake made by
Mr. Stuart, on which the plaintiff had paid £129
more than he ought. The plaintiff believed, upon
the deed of assignment, that he was entitled to a vote
in the management of the concern, but upon the
first day of settlement, at which he attended to take
his share of the profits, he was informed by Mr.
Stuart, the defendant, that it was not intended to
sell him any more than a share of the profits, and
not any of the rights as pr oprietor. A refusal of
the share of the profits now sought was given to him,
unless he would consent to give a receipt acknow-
ledging his right oily to the profits in the above
concern. At that time a third party, Mr. Mud-
ford, made his appearance, and claimed that he
should become a proprietor at a certain period, at-
cording to a promise made to him to that effect.
Mr. Beta. entered at great length into the terms of
the engagement, when
His Honour the VICE-Cnsireet.Loa said that he
could not hear the case further on that day, and
must hear the argument at another sitting.
NOVEMBER 19.
The hearing of this case was resumed this day.
Mr. Bait, Mr. HEALD, and Mr. SIDEBOTHAM,
were heard in support of the plaintiff's bill. The ar-
guments of the Learned Gentlemen were chiefly di-
rected to the questions, as to whether the.deed of as-
signment to the plaintiff conveyed a share in the con-
cern to him to be held under circumstances different
from those which-he would have held tinder, had be
received a share on the conditions directed by the
original articld.between Messrs. Stuart and Street,—
They contended that Mr.-Was. Stewart was entitled
to all the benefits that belonged to an original pro-
prietor. They supported this opinion by a reference
to the nature of . the transfer to various documents
which were exhibited in the pleadings, and to the
tenor of the conditions specified in the new as-
si.ganient. It was remarkable, they said, that the ni-
=Dt contained a clause of repurchase in favour
aniel Stuart. Was it possible that the de-
fondant would make a bargain by which he would
kia so much. prejudiced ? for if Wm. Stewart was in
an inferior relation to the other proprietors, Daniels
after he bad repurchased, would stand in his show)
as to the two shares, and thus lose a considerable ad.
vantage to that extent.
The Vzcs.CsAwczuoa asked what could be the
intent of the prayer of the cross bill Sled by the de*
indent in this causes to set aside the assignsuatt

since his Counsel now argued in a way totally ;neon-
, sistent with such an application?,
Mr. AGAR said that he would Ispply to Mr. Bell
for that explanation, as lie understood that it was by
1 his advice that the bill was filed, he having been re-
tained for the defendant.
Mr. BELL declared he had never gives such ad-
vice. He had bee* consulted on the occasion, but he
was not at liberty to state what advice he gave. It
might surprise some that be appeared in behalf of
the interest which he was then supporting ; but
.the
fact was, that no retainer had been offered or left for
him, though, having been originally consulted with ;
and therefore he had no hesitation in accepting the
retainer on the other side. He was sure he had
done nothing contrary to the rules of the profession.
If there were any fault in the case, it was the fault
of the parties.
The Vicii•Cnamet.Loa said, that no fault could be
attributed to the Counsel. It wasa mistake to suppose
that the regulations of the profession were made for
the benefit of Counsel—they were made for the be-
nefit of the Public. There was not a single rule in the
profession thatwas not bottomed on public convenience.
Mr. AGAR and Mr. Suonera were heard on behalf
of the plaintiff. The arguments of the Learned Gen.
men lose their interest in consequence of the Irma-
CHANCELLOR having early expressed his opinion that
the question, which was very simple, should be sent
to a Court of Law. He desired tint the case might
stand over to Wednesday, in the next week, in older
to give Counsel time to-determine on a case to be sent
to a Court of Law.