Star.
London, England, 1829-05-08 00:00:00

SMITH •. KIENNICK.

Sir' Y SCARLITT state) than this was an action for
money lent, for money paid. and for money had and
received to the plaintiff's use. The cause was tried at
Guildhall, before Lord Tenterden, at the last sittings
after Hilary Term, when a verdict was bound for •the
defendant. He now moved for a rule to show cause
why the verdict should not be set aside and a new trial
had, on the ground of misdirection on the part of his
Lordship. The plaintiff was a y, ung woman akb whom
the defendant. a Gentleman of fin tone. had occasionally
lived at Manchester, previously to the death of hi,
father. The defendant had agreed to allow the plaintiff
M. a year, but that not being recoverable at law was
not gone for. What the plaintiff sought ti' recover wasl
221. the defendant bad received on her account on the
24th December, 1824, of an attorney at Manchester,
who paid it to him on his bringing a receipt from the
plaintiff. There was no proof of his having• given the
money to the plaintiff. A sum of 10s. for fish, and
21. 12s. for boots and shoes,.paid for the defendant by
the plaintiff, was also gone for. It appeared by several
knees of the defendant to the plaintiff that he had bor-
rowed money of her, which he promised to pay on cer-
tain daycar also her allowance. It was perhaps going
for this borrowed money, of which he (SirJ.Scarlett) was
unable to bring any definite proof, that caused the plain-
tiff's failure in succeeding in that part of her claim which
was clear. His Lordship, after telling the Jury that the
plaintiff could not sue for any part of her allowance,
and that there was no proof of the amount of money
lent, said, with regard both to that and the 221. received
by the plaintiff, that the Jury might presume, from the
intimacy of the parties, that the money had leen paid.
This was the misdirection of which becomplained; and
be must submit that the intimacy was rather a presuisp•
tiun that the money had not been paid. and that, at any
'ant, the Jary should not have been directed to presume
without any proof whatever that it had.
Mr. Justice BAThir asked when the parties ceased
living together ?
Sir Jausaleamurre replied that the date of the last
letter was 1826; but the correspondence might have
been kept up by the plaintiff after that.
Lord TILIITIODIX.-YOU will remember that it was
part of the proof that the plaintiff had no visible means
of getting her livelihood except from the allowance
mad* by the defendant.
Sir JAP4I.II SCAALITT admitted that there was no
proof of what means of livelihood she had; but it was
clearly proved the defendant bad received 221. for her.
Lord Immense—Take a rule to show cause; per.
haps it may lead to some amicable arrangement.
Sir Jas. SCitaLITT said that his client was far from
wishing to mss' the matter, if it amid be settled pri•
vately.—Rule granted.

LYONS V. GOLDING.

Mr.TAuNtoa stated that this case *as tried at the last
Reading assizes, betnre Mr. Jamie'. Park, under whose
direction the plaintiff Mai nOnsuited. He now applied
for a isle to show•cause why the nOnsitit should not be
set aside, and a new tial hiJ, on the ground of 'misdi-
rection on the part of the Learned Judge." This was an
action of trover.' The defendant was a constable of
Reading. who, under a search warrant, entered the
plaintiff's house and seized certain goods. The plaintiff
demanded to have them restored to him, but his demand
was refused. • It afterwards appeared that there was no
ground to suppose that the plaintiff had improperrycome
by them, and they were,- after a space of six weeks or two
months bad elapsed;restored to him. In the meantime
the plaintiff bad brought his action of mover, for the
conversion during that period, going for nominal da-
mages; his object being to defend his eiartieter more
than any thing else. On the pint Of the defendant it
was shown that the plaintiff bad demanded a copy of
the warrant, which was given him. Wen this the
Learned Judge gave it as his opinion that the defendant
was protected by the Maigistraie's warrant. and that ti.e
case came precisely within the words of the 24th *Geo.
H. cap. 44'. • He (Mi. Taunton) contended that the sta-
mite would apply it this was an action of trespass, but
that the gilt of the action being the conversion of the
goods in the interim, which the warrant did not autho-
rise. the deleridintkould erit Shelter-him:elf under the
warrant. In the case of lietcher v. Wilkins, in 6th East,
it was laid down that the stato;e did ant extend to a
case of replevin.
Mr. Justice, HATLIM-aut is the refits) to deliver I
back iliegoOds re ibis case neonversion?
Mr:Tat:arson was about to proceed With his argil
menti'but • •
• The-Cowin decided, that they Could not grant the,
rule prayed for.
• seimay. ?Uri/AS eliFitellpW#.l. WWI, WiLLIM4
pmts.-dap arinklub '
I . 1:
1101basin' indictment tot' a cano44 lii.likraud 1
•

the erediton wrilkomarjageV, by'resiedwlest rgo 41,
and removals of hie goods. The threeirst -diietldents
were fogad stalky. but all thfrAmt Wes~111•111 ne,
the trial, which tent -place maim months back. • The
defendants were now brought op 'Of jodiessent. Los.,
Tentacles read his notes of thy tad; aißdscrits in
your of the defendants were pat in, and Counsel Wiwi
head for and against ; but the Coat postponed its
judgment till so ninermst. . -
altilli It COVRT. Mow t.
it
This being the first sitting di the COist during the
present Ina. a great man of common motions were
disposed vf. _ _

- • /PLATS e. PLATS.
' This was a question as to the te.taimentary intentions
of Thomas Platt. of Stamford-street. deceased, who
died on the Sd of Fcbroary.lB29, leaving real windy
to the value of about 30,0001.. and personal property
to the amount of about 80,u00L The deceased left a
widow and two sons and three daughters. and executed
a formal will, dispos.ag of the whole of his teal and I
personal property, and bearing date the 21st February.
1826. Two other papers of a testamentary character
were also found after the death of the deceased; the'
fiat appearing to be the memoranda of an intended
will, and the other a draft of a new will, founded on
I, the memoranda, and drawn op by the deceased's solici-
tor, pursuant to his directions. The present was an
amicable suit, to obtain the opinion of the Court as to
whether the draft will should be admitted to proof.
Drs. Doason and ADDAMS contended that the draft
will clearly contained the ultimate testamentary inten-
tions of the, deceased, and ought to be admitted to pros
bate. By the will of February, 1826, the deceased gave
legacies of 10.0001. to each of his daughters; but one
of those daughters having married shortly after the
execution of the will, and received a bond for 10,0001.
as a marriage portion, the deceased became desirous
to alter this will, so as to equalize the provision for
his daughters. He had also found that, upon the
sale of a property taken by the St. Kadtatise Docks
Company. it had not produced as much as be had
calculated it was worth, and he, therefore, determined
to reduce some charitable legacies given under the
will of 1826 to Christ's Hospital. and to the British and
Foreign Bible Society. The draft of the new will was
drawn up by Mr. Pearse, the deceased's solicitor, in
August last, and remained in the deceased's possession
until his death. Four days before that event he desired
the d'art will to be brought to him, and observed; that
be had previously read it over, and that it was all right;
and he then ordered it to be restored to an iron safe,
from which it bad been just taken at his desire. having
been persuaded by some of the members of his family
to postpone any further c' nsidetation of its contents
until a future day. Under all the cis cuntstsoces it was
submitted. that the draft will contained the UltilliSte
testamentary intentions of the deceased.
Dr. Luantuarou. at the other side, contended that
the draft 1,111 could not be admitted to probate. and that
it did not supersede the will of 1826. 11 was not disputed
that it was the intention of the deceased to make some
alteration in his will, but the fact appeared to be that
he had never legally given effect to his intentions. The
draft will was only a paper for deliberation, and there
was no impediment to its being carried into execution if
the deceased bad so desired. "When it was brought to
him four days before his death. however, the deceased
took no step towards executing, but merely declared
that it was all right, and that Mr. Pease, his Solicitor,
knew all about it.

The Comte was clearly of opinioo that the. draft will j
was only a deliberative paper, and that the deceased
was not prevented from execudag it by the act of Gob,
which was the grossed upon which the Court usually'
gave validity to uoesecuted papers. The draft was not
formally prepared for execution, and it was, therefore,
impossible for the Court to presume that it bad received
the final approbation of the deceased, or that be kneaded
that it should operate as his last will. For siz months
the paper bad remained io the deceased possession with•
oat his having taken any step towards its esectuion, and
it appeared that be abandoned the opportunity of ex..
ailing it during his illness, though. doubtle►s, be bad
ample•means of executing it if he so desired. Under
all those circumstances the Court condemned the un-
executed papers, and declared for the will of 1826.