Star.
London, England, 1822-11-09 00:00:00

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LAWINTILLIGENCE.

COURT OF CHANCERY, NOVEMBER s.
stat;7. PORTSSIOUTV CAUSE.
SI-PARTS FELLOWES, n 4 THE MATTER 01 LORD PORTS-
MOUTH, A SUPPOSED LUNATIC.
Mr. WETHERELL_ this morning closed his adds
• on behalf of the petitioner.
The LORD CHANCELLOR.---The duty of the Chan-
cellor is to consider whether the evidence is sufficiently
doubtful as to the sanity of the individual's mind so
as to require it to be sent to a Jury to a decide ; ande
then it is the Chancellor's e'sty to decide whether it
will be necessary for the individual's interest that a
commission should issue against him, provided the
Jury should find him to be insane; for I have known
cases where it was quite unnecessary—for instance,
where a woman is insane, she being a wife, and having
an affectionate husband, who takes every possiisle
care of her ; and so of a son or a child who has• a
father, who takes proper parental care of him, in
such a case it is quite unnecessary that a commission
should issue. Indeed it would be cruel were it not
so. The law is to take care of the individual when
he is not otherwise taken care of. Lord Hardwieke
laid down the law of the case to be, that the Jury
shall find die individual to be of an unsound mind,
and incapable to manage himself and his own affairs;
but the word lunatic is not mentioned.
Mr. SHADWELL next addressed the Court on the
same side.
• Before his Lordship left the Court, he stated that
he would inform the Bar, either to-morrow morning
or on Monday, on what days he would be prepared
to give judgments in cases, in which he has for some
time had the papers.
VICE-CIIANCELLOR'S COURT, NOVEMBER S.
THE EARL HOWE V. BERRIMAN.
Mr. &Intim, on the part of the plaintiff, moved I
that the defendant. Thomas Berriman, might be corn-
Mitred to the Fleet Prison for a contempt of Court.—
The Learned Counsel stated that the defendant hav-
ing been guilty of a contempt by not putting in an
answer to the plaintiff's bill, was in consequence ar-
rcsied by an officer of the Court. He contrived, how-
ever, to escape from custody, and on the 15th of Oc-
tober, whilst he was at liberty, he put in his answer,
which was accepted by the plaintiff. He had sub-
sequently been recaptured by the officer, and was
now in his custody.
The Vice-Cum:mum observed, that it was a
question whether the officer was justified in making'
a re•-Caption of the defendant ; because a defendant
in custody Was entitled to be discharged as soon as
his answer was accepted by the plaintiff. He was dis-
posed to think that the defendant must be discharged,
because the Court would consider him to have been
in custody. In order to determine the question of
costs, he would request an officer of the Court to in-
quire whether a similar case to the present had ever
before occurred, and to state what canduct the Court
pursued upon such an occasion. In the meantime
the defendant must remain in custody. He would not
hand the defendant over to the Fleet, but at the same
time he could not discharge him from custody until
a motion should be made fur that purpose. This, he
advised the defendant's Counsel to make, upon giving
notice to the plaintiff. The officer had been put to
considerable expense by the. re-caption, which would
not have happened, it' the plaintiff had stated, as he
ought to have done, that the defendant was entitled to
his discharge upon his answer having been accepted.
Mr. Umtata, Counsel for the defendant, applied
for the costs of the application.
The Vice-CHANCELLOR said he would consider the
question. He did not, however, feel dispoied to give
costs to the defendant, who had committed so gross
a contempt of Court.
GooDExoucti AND OTHERS v. JONES AND OTHERS.
Mr. AGAR, on the part of the plaintiffs, moved that
the defendants, as executers of the late Mr. Jones,
might be ordered to pay over to his clients the sum
of 1;5000, to be by them held in trust for the purposes
designated by the testator. The testator had instructed
his executors to assign the above sum to the Officers
of an Academical Institution at York, called the
Manchester Theological College, with directions that
the said officers should hold the fund in trust for the
pnrpose of augmenting the salaries of such conscien-
tious Protestant Dissenting Ministers as should stand
most in need of -assistance ; but the preference was
always to he given to those persons who had been
students in the institution before mentioned. The
plaintiffs, who filled the offices of Theological Tutor,
Visitor, President, Vice-President, and Treasurer to
the College, claimed the bequest, and prayed that
the Court would order the defendants to make the
necessary assignment.
Mr. Itoueccr., for the defendants, suggested that
the bequest of the testator constituted a charity, and
that.therefore the Attorney-General ought to have
been made a party to the suit.
The VICE-CHANCELLOR asked Mr. Agar; whether
he would not be compelled to require the presence of
the Attorney-General, and to refer it to the Master
to approve of a scheme for the security of the fund?
Could he, on behalf of the Public, permit the plain-
-tiffs to possess the property ? Those individuals did
not constitute a Corporation.
Mr. AGAR believed that the Court had in many
cases confirmed the bequests of large sums to Societies
not incorporated.
The Vice-CitAsera.r.on replied, that in those cases
the sums were to be applied to the general charitable
purposes of the institutions. Those cases were net
analogous to the present, which appeared to him to'
embrace the establishment of a permanent and per.'
petual charity. Could he leave it to the discretion of
the plaintiffs to execute the intention of the testator?
Mr. AGAR thought. that if the testator bad thought
fit to vest a discretionary power•-in the trustees, the
Court ought not to interfere. In support of his argu-
ment the Learned Counsel cited the case of Waldo
and Kaly, in 16 Vesey. In that case Waldo, the tes-
tator, had bequeathed his property to hii widow,
chargeable with the purposes of public and private cha-
rities, and the Court would not interfere to controul her.
The Vitr,CllANCeLlaalt, observed, that the case re-
fared to by the Learned Counsel was merely a pay-
sstent nut big .the life of the widow, but that before
lel Court was a perpetual and pet manent charity.
e duty of the Court was to further the intentions
of testator, and it would not perform that duty
by permitting the officers of the institution which had
been mentioned to obtain uncontrouled possession of

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the funds. In the first Awe, however,. it woad he'
necessary to have the Attorney-eveneral before' the
Chort, without whom the cause could not go on._
Thir.Attontey-General represented the executive au-
thorityv and it was the duty Of the Crown, as Farms
patriot, to secure the due administration of the trusts
Iwhich pious persons devoted to Charitable purposes.
Mr. AGAR, under*these circumstances, requested
that 4,e cause might stand over until the plaintiffs
amended Weir bill, by making the Attorney-General
a party to the suit.
The Vicx-Cnatrcst.t.oa consented to the proposi-
tion, and at the same time stated, that he never would
permit the money to go into the pockets of the plain-
tiffs. He did not, however, intend to prevent those
Gentlemen from being made the instruments by
which the funds should be applied according to the
intention of the testator.
Mr. Rotreat.t, applied for, and obtained, the costs
of the day.
COURT OF KING'S BENCH, NOVEMBER a.
HOFFMAN V. HEYMAN.
Mr. MARRTAT moved for a Rule to shew cause
why the verdict for the plaintiff should not be set
aside, and a new trial granted. This was an action
on a contract for the sale by the plaintiff's to the de-
fendant of 641 hogsheads of tobacco, the cargo of
the ship Ulysses, under the following terms :
" Bought of Messrs. Hoffman, the cargo of the ship
Ulysses, 641 hogsheads of tobacco, bound for Bre-
men, payable one-fifth on the sth of October next.
'and for the rest the sellers are to look to their cor-
respondents, Messrs. Delius, to whom the cargo is
consigned; interest at two and three months from
final delivery ; the buyers to have the benefit of the
seller's policies." The whole price of the tobacco
was something more than £18,000; ene-fifth of
which, £3,700, was paid according to the contract.
The whole of the tobacco arrived in due course at
Bremen, but, in consequence of a fall in the price of
the commodity, a loss of two-fifths arose on the sti-
pulated sum. The plaintiffs had received from Messrs.
Delius all the proceeds of the cargo, in addition to
the E 3,700 paid down ; but they brought their action
to recover the balance of the price and interest,
amounting to somewhat more than £4,300, which.
the Jury gave them by their verdict. Now he (Mr.
Marryat) contended that the true import of the con-
tract was this—that the buyers were to pay one-fifth
for the chance of profit on the goods, and were not to
be answerable for any further loss ; that Messrs. Hoff-
man were to look to the funds in the hands of Messrs.
Delius, and to those alone, for further satisfaction of
their claim ; and if these sunk below the remaining
four-fifths, they must bear the intermediate loss. He
submitted that the proviso respecting payment of in-
terest and the benefit of the policies could not, if
fairly considered, alter the meaning of the bargain.
The Comm said they must require very strong and
clear language to induce them to believe that it was
the intention of parties to a contract of sale that the
buyer should have all the chance of gain without
any risk of lois. Here the reference to Messrs. Delius
was evidently designed to do no more than to secure
the seller from a demand of the residue of the price
before the cargo should be turned into money. As
this was their decided opinion, they refused the Rule.
STANLEY V. DODD.
Mr. SOLICITOR-GENERAL moved for a Rule to
shew cause why a new trial should not be granted in
this case, or why the judgment should not be arrested.
It was an action on 55 Geo. HI. c. 137, sec. 6, which
provides that " no churchwarden or overseer of the
poor, or other person in whose hands the collection
of the rates for the relief of the poor, or the providing
for, ordering, management, or direction of the poor
of any parish shall or may be placed, shall provide
for his own profit any goods, materials, or provisions,
for the support and maintenance of the poor ia any
parish for which he shall be appointed," under the pe-
nalty of 1001. Defendant was charged with having in-
curred the penalty of this clause, because he, being a
governor of the poor of the parish of Bethnal-green,
supplied the workhouse of that parish with milk.
The case has been twice tried, and at the last trial,
before the Lord Chief Justice at Westminster, a ver-
dict was found for the plaintiff. This verdict the So-
licitor-General now sought to set aside, on the ground
that Mr. Dodd was not a governor of the poor un-
der the fair construction of the local Acts for the di-
rection of the parish funds, but only a vestryman.
He had, indeed, qualified, which he was forced to do
in order to be a member of the vestry, but he bad
never acted as a governor t at least, the only way in
which he had acted was by attending a particular
meeting, which was concluded by a dinner, and
which was usually attended very numerously, not
only by governors of the poor, but by members of
the vestry. At all events, the judgment ought to be
arrested, because the Act applied only to the provid-
ing for the maintenance of the poor in the parish,
and the workhouse of Bethnal-green was situated
without its boundaries.
The COURT intimated that the objection to the re-
cord, arising from the local situation of the work-
house, was quite untenable; but granted a Rule to
shew cause why there should not be a new trial, on
the doubt suggested respecting the official character
of the defendant.

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THE KING V. JOLLIFFE.
Mr. Serjeant PELL moved for a Rule to spew• cause
why the judgment in this case should not be entered
for the Crown non obstanle ueridicto, or a new trial
granted. This was a quo warranto, calling on the
defendant to shew by what authority he exerci,ed the
functions of Mayor of Petersfield,and wasltied before
Mr. Justice Burrough, at the last Assizes for Harm-.
The objection to the defendant was, that the Jury of
the Court Leet by whom he was appointed were sum-
moned,. not by the. Bailiff, but by the Steward of the
Court. On his behalf it was alleged that, by imme-
morial custom, the Steward had authority to summon
the Jury, which was the substantial issue at the trial.
To support this custom, evidence was given of usage
only within 20 years ; and it was Lid down by the
Judge, that on the slightest evidence of usage, unre-
' butted on the other side, the Jury were bound to find
the existence of the custom. On this direction the
Jury found a verdict for the defendant, which the
Learned Serjeant argued was enti'rely against evi-
dence, and could only be sustained by a doctrine
which was contrary to law.—Rule granted.
HEMMING V. HALSEY.
Mr.CHITTY moved for a Rule to.shew cause why
the verdict for the defendant in this case should not
be set aside and anew trial granted. It was an action