The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1842-04-05 00:00:00

I again and again,,ppon fortrier oegasions,.what he had
and the docuntents which he (the learned counsel,)
tort in his hand, in which he had given an account of the
uatter, expressing his sincere regret that Mr. Hilton should
lave suffered foci his misconduct. That there was a degree
if intimacy between Mr. Topham and Mr. Hetherington was
;ear. They had been clerks together, and when the jury
ieard some questions which he should put to Mr. Topham,
Ind when they remembered the qualified answer of Mr. Pen-
nington, that he did not think Mr. Topham had any thing to
do with the transfer, they would judge whether the solicitor
of Mr. Hetherington must not have had full notice of the
nature of the property of which Mr. Topham claimed the
right. He contended that under these circumstances, Mr.
Hilton had a clear right to detain the deed against Mr. Heth-
erington, and the question was, whether Mr. Hetherington
had a right to sue him as a defendant, and take the deed from
him. It was Mr. Topharn's duty to have handed the deed
to Mr. Hilton in 1836 ; could Mr. Hetherington then claim
to take it from him ? He Could not. The conveyance had
never been in the possession of Mr. Hetherington at all, and
he 'could not take it, he apprehended, unless he could shew a
good title to it. And how did that title come ? Not through
Mr. Topham, for he had parted with it in direct defiance,
and breach of his trust, and he could not give Mr. Hether-
ington a legal title to it. If Mr. Hetherington had it once
in his possession, it must have been a different case, but he
bad not had it. Now it did seem to him most monstrous
and illegal to say, that when Mr. Hilton had properly ob-
tained possession of the deed, Mr. Hetherington should step
in and assert the claim which he now set up.
Mr. BAINES then proposed to put in the marriage settle-
ment of Mr. and Mrs. Hilton.
Mr. KNOWLES objected to it, on the ground that the
plaintiff had nothing whatever to do with 't.
The JUDGE said the settlement proved that Topham was
the legal owner of the property, and the legal holder of the
deeds. He commenced being so in 1833, and he continued
till 1833, and he had made a valid legal transfer of property
• in 1836 to Mr. Hetherington.
Mr. BAINES contended it was not a valid legal transfer
under the circurnstanees, • Mr. Topham, be apprehended,
could convey no title. •
The JUDGE said Topham could have maintained an eject-
ment under the deed of 1836.
Mr. BAINES apprehended not, under the terms of his
trust.
The JUDGE was clearly of opinion thut be might ;• unless
somebody or other could shew a better title by the title deeds.
The marriage settlement was eventually admitted, in order
to shew how Topham had become entitled to possession ; and
also Mrs. Hilton's will, to shew that if there were any parties
equitably entitled it was' Mr. 'Hilton.
Mr. John Topham, whose name has been so often mention-
ed, was then called by Mr. BAINES.—No answer being re-
turned, he was called by the Marshal upon his subpoena, with
the same result. I.
Mr. BAINES said, that under these circumstancesbe should
tender, as evidence, certain declarations which Mr. Topham
had made, upon the ground that he was the principal under
whom the plaintiff claimed.
The JUDGE said he would admit any declarations made be-
fore the transfer.
Mr. BAINES said lie had no evidence of declarations made
before the transfer, but lie had of declarations made after-
wards.
. .

—the property the title-deeds of which the present action
was brought to recover. A Mr. Price had mortgaged that
property to Mr. Topham. It consisted of three parcels of
land, and one of these parcels was the property to which the
deeds related. Mr. Price.mortgaged to Mr. Topham " The
Riding," situated in. Bebbington ; and as this was an ample
security for the £BOO which still remained .due from Mr.
Topham to Mr. Hetherington, Mr. Hetherington had no
objection to accept an assignment of this mortgage. Upon
that, Mr. Hetherington became entitled to all the titleedeeds
relating to that piece of property.• At the time when this
security was changed, Mr. Topham gave up to Mr. Hether-
ington, as he thought, all the deeds relating to this property;
but by some accident the particular deeds in question. were
not delivered up. Mr. Hetherington died in 1839.
was no occasion for any enquiry about the deeds, because
Mr. Topham paid the interest „till he became bankrupt in
1841, and it was not till after the death of Mr. Hetherington
that the mistake was discovered. After Mr. Hetherington's
death the plaintiffs were desirous of availing themselves of
their power of sale ; and in order to prevent that the re-
presentatives of Mr. Price were anxious to pay off the
mortgage, and their attorney tendered the money. was
then discovered that the particular lease and release in ques-
tion were not among the deeds, and it was afterwards found
out that they were in thelaossession of Mr. Hilton, the de-
leudant. Mrs. Price then refused to pay the money ; 'so
that the present plaintiffs could neither avail themselves of
the power of sale, nor get the mortgage-money back, because
Mrs. Price would not pay it till the deeds were given up to
her. He understood that tile defendant married a lady of
the name of Shallcross; and he believed that his defence
to-day would be this—he would say that Mrs. Shallcross,
when he married her, had several sums of money in the
hands of Mr. Topham, as her trustee', and that part, if not
the whole money which Mr. Topham advanced to Mr. Price,
and Price's mortgage to Topham, was the trust money of
Mrs. Shallcross. The defendant married Mrs. Shallcross;
by the marriage settlement he had an interest in her property,
which was afterwards confirmed by her will ; and he now
said that be was entitled to these deeds, because the money
of his wife was the money which Topham advanced to Price.
There was no reason to believe this story to be true, but if
it was true, he ;the learned <cruise) apprehended that his
lordship would tell the jury that an equitable right would
give the defendant no title to hold these, deeds. They were
part of the property, and they must go along with the legal
estate. The plaintiffs had the legal estate, and an equitable
equitable estate in the property ; and having a legal as well
as an equitable right, they were clearly entitled to the pos-
session of the deeds.
The deed, dated dated 7th and 8111 of January 1833, (to re-
cover which the present action was brought,) was then pro-
duced from the defendant's custody, and put in : also the
lease, by the trustees Qf the late Mr. Orred of " the Riding"
at Bebbington' to Mr. Price ; the mortgage of the property,
dated Ist and 2d April, 1833, to Mr. Topham, by Mr. Price
for £7OO ; and the undertaking of Topham to assign this
mortgage to Mr. Hetherington, dated September 9th, 1836,
for the considerations mentioned in the opening of the learn-
ed counsel.
Mr. John Pennington, solicitor, was then called. and he
proved having acted as attorney for Mr. Hetherington in all
these matters. Mr. Hetherington's will was then put in to
shew, that amongst other property he had devised the mort-
gage in question to the plaintiffs.,
11r. James Wilson, clerk to the plaintiffs' solicitors, prov-
ed having demanded-the deed from the defendant, and that DOUGLAS AND ANOTHER v. GLYNN AND ANOTHER.
he refused to give it up. The plaintiffs in their declaration alleged that the defen-
This closed the plaintiffs' case. dants were indebted to them in the sum of £425 10s. for
Mr. BAINES, (with whom was Mr. G. Henderson,) then goods sold and money received upon an account stated. The
addressed the court and jury. He said he appeared before defendants pleaded that they were not liable.
them as counsel for the defendant, and he trusted that he Mr. Knowles and Mr. Cowling appeared for the plaintiffs,
should be able to establish, to the entire satisfaction of the who were James Douglas and James William Douglas, who
jury, under the direction of the learned judge, that in point carry on business in Newfouudland • and the defendants,
of law, the defendant was entitled to retain these deeds, which Henry Glynn, and Richard P. Glynn, brokers, of this town,
were unquestionably in his possession. He should have been were represented by Mr. Wortley and Mr. Crompton.
glad if this investigation had taken place elsewhere, not that The action was brought to recover £425 10s., the balance
he had any doubt whatever of the justice of his client's case, of £925 10s., for a cargo of cod oil, which the plaintiffs
but because, in order to explain fully the nature of the cir- shipped to this country in December last, by the brig Marge-
cumstances under which it came into his possession, and the ret. The oil was consigned to Messrs. Valiance and Henry,
nature of the circumstances "Which entitled him to retain it, merchants, of this town, who acted as agents of the plaintiffs
he should be under the disagreeable necessity of making strong in the sale of it. They
sold the oil to Mr. John Davies, who
imputations upon toe character of a professional gentleman, was then carrying on business here, and the mode in which
which he would gladly have avoided had it been in his power, the sale was effected was this :—The defendants who had dealt
but which, as he could not avoid them consistently with his with Messrs. Valiance and Henry, acting as his agents, pur-
duty to his client,he must not flinch from. He only desired chased the oil for Mr. Davies, at the rate of £3l 10s. per
the jury to be in possession, in a clear and connected man- ton. The invoice and a note of sale left no doubt that the
ner, of the circumstances of the case, because when they un- sale had been made to Mr. Davies. There was considerable
derstood them thoroughly, they would see that nothing could difficulty about the money, and at last Messrs. Valiance and
be more just than the claim of Mr. Hilton to retain this Henry received £5OO from the defendants, leaving the balance
deed. It would therefore be his business to go through of £425 10s., 'which it was now sought to recover. On the
the whole transaction, and if the jury would' follow him in day that this balance was to be paid Mr. Davies stopped
dates and facts, he should be able to make out a complete payment. It was Shown
.by the evidence of Mr. Thomas
case for his client. They had heard that Mr. Hilton, about Dover, of the firm of Thomas Dover and Co., warehouse-
February, 1833, was upon the point of contracting marriage men, that on the 30th December, they received an order to
with Mrs. Shallcross, a lady of considerable property. She transfer the oil in question to the defendants, and that they
had several sums of money in real securities. She had were still in possession of it. Under all these circumstances
£1,600 in her own hands ; and she had a further sum of the plaintiffs contended that Messrs. Glynn were liable for
£BOO in the hands of her bankers, Messrs. Hey woods of this the balance. On the other hand the defendants contended
town. Being about ca contract this marriage, it was deter- that the plaintiffs had trusted Mr. Davies, and that instead
mined that a marriage settlement should be drawn up, and of seeking to recover from •the brokers, they should prove
Mr. Topham, it was arranged, should be the trustee under against the estate of Mr. Davies, under the fiat issued
that settlement. This settlement bore date the 27th of Feb. against him.
1833 ; and without going through the whole_ of it, he would The jury returned a verdict for the plaintiffs—Damages
state its provisions, as far as they related to the‘present case. £425.
It was provided by this deed, that Mr. Topham should be-
come the trustee, that all the securities which Mrs. Shall-
cross held for money, should be transferred to him ; that the
sum of £1,600 which she had in her hands should be put in
his, and that the further sum of £BOO, in Heywood's bank,
should also be put into the hands of Topham, fur the purpose
of enabling him to perform the trusts of the marriage settle-
ment. The trusts were briefly these—that during the joint
lives of Mr. and Mrs. Hilton, Topham should pay over to
them the rents, profits, and interest of these several securi-
ties ; that after the death of Mrs. Hilton, if she should die
.first, Mr. Hilton should be permitted to receive the same for
his life, and that after the death of Mr. Hilton, the ultimate
interest in the whole property should go to such issues as
Mrs. Hilton should, by her last will, appoint. There was this
also provided, that it should be lawful for the said John Top-
ham to invest, upon such government or real securities, as he
should think fit, the different sums of money of which Mrs.
Shallcross was possessed, and which came into his hands as
trustee, with the consent and approbation of the said Mr. and
Mrs. Hilton,—that he should, at different times, when it
might seem expedient, but with such consent and approbation
of Mr. and Mrs. Hilton, transfer such securities to any other
investment, and this he should be at liberty to do during the
joint lives of such parties. This was material, because they
would find that Mr. Topham, in the breach of the trusts of
the marriage settlement, did transfer to Mr. Hetherington,
whose representatives the plaintiffs were, the deed of mort-
gage in question, which formed one of the securities entered
into under the marriage settlement, and he did this without
the knowledge and approbation of Mr. and Mrs. Hilton,
though they were both in their lifetime. What he should sub-
mit in law to the learned judge, by and bye, was, that if Mr.
Topham did, in breach and fraud of that trust, convey away
property which he had no right to do, it was quite impossible
he could give a title to anybody else, and above all, be could
not substantiate any_claim against the defendant. It was on
the 27th Feby., 1833, that the deed of settlement was made ;
on the Ist and 2d April the indentures of lease and release
were executed which had been put in. Mr. Topham had
looked out for a mortgage security for the £BOO which had
been transferred to him as trustee ; Mr. Price, whose name
had been often mentioned, wanted some'rnoney ; Mr. Topham
communicated with Mr. and Mrs. Hilton, and they agreed
to let him have that £BOO on the security, and then Mr. Price
executed that instrument, which as the jury had heard, was the
mortgage security from Mr. Price to Topham in fee upon
receiving the sum of £BOO. From that time Mr. Topham
continued to pay the interest regularly to Mr. and Mrs. Hil-
ton, during the whole of Mrs. Hilton's life, and after her
death to Mr. Hilton long after he had transferred the mort-
gage. That transfer took place in 1836. In September,
1836, Mr. Topham having a debt due from him to Mr.
Hetherington, in breach of his duty as trustee, actually as-
signed to Mr. Hetherington the mortgage security which
belonged to those for whom he was trustee, which had been
obtained for money, which he ought never to have transferred
either as a professional or as a moral man, and that without
approbation, or even knowledge, upon the part of Mr. and
Mrs. Hilton. Mrs. Hilton died in 1837 : this security there-
fore was transferred in her life time; and by that instrument,
the marriage settlement, the jury would find, that Mr. Top.
ham was expressly prohibited from making any transfer of
any security except by their consent. This was done without
their knowledge, .or approbation. It was under these cir-
cumstances that the tionsfer was made to Mr. Hetherington,
in the year 1836. Down to 1840, when Mr. Hilton discovered
the breach of trust of which Mr. Topham hid been guilty,
and learned that this transfer had taken place behind his back
in 1836, and to the bankruptcy of Mr. Topham in 18-10, the
interest was paid by Mr. Topham no doubt with the view of
keeping the parties in the dark as to what had been done ;
and 'it was only when Mr. Topham was finally broken up
that these circumstances came to light. Mrs. Hilton died in
1837. The jury would remember that by the terms of the
marriage settlement she was to have a power of appointing
by her last will the uses to which the whole of the trust pro-
.perty should go after her death. She made her will, and she
devised all her property, real and personal to, her husband,
the present defendant, who thus became interested, under the
joint operation of the marriage settlement and of the will, in•
all the property his wife had ; among the rest in this sum of
£BOO, which was put out on the mortgage security, in the
mortgage security itself, and in every other kind of property
of which his wife died possessed. When Mr. Helton became
so interested, he made application to Mr. Topham for the
different securities which he held, and for the payment of all
money which he, as trustee, had. Mr. Topham handed over
all the other securities, of every kind, to Mr. Hilton ; but
this mortgage security, of the Ist and 2d April, 1833, was not
forthcoming. It was above, two years before he succeeded in
obtaining the other documents ; and even in 1839 this mort-
gage deed was not forthcoming. Mr. Topham made various
excuses for not returning it : at one time he had changed his
office ; at another the carelessness of his clerk had mislaid it;
and at another he was unable to tell what had become ofit at
all. At this very time the transfer had been made to Mr.
Hetherington, and Mr. Topham must have known that he was
making these excuses in order to conceal the real nature of
the transaction which had taken place from Mr. Hilton,
whom he bad thus been the means of defrauding. Mr. Top-
ham, he understood, was a professional man in this town ;
and let it not be understood that he was applying to this'case
epithets harsher than it deserved. He was willing to believe,
from all he had heard of Mr. Topham, that he did this im-
proper act at a time when he was much pressed himself, and
with a bond fide intention, upon his part, that no injury
should be sustained by those for whom he was trustee, and
with the full purpose of restoring the deed as soon as he could.
Unfortunately he was unable to do it ; and it was not until
his bankruptcy, in 1840, that Mr. Hilton had any notion that
his mortgage security had been transferred in fraud of
him in 1836. They would by and bye have some reason "'
to believe that he (Mr. Topham) knew the real nature sr;John
of the transaction ; for he would now state some circum- 6, John WLean,
stances to which he would call attention in point of time and 6, Piers Lowe, fist).
fact. In 1840, Mr. Topham became bankrupt, and then all 11, Robert M•Lachlan, (proof and div
these matters came out. He was brought before the Corn- 1,3, Thomas Peake Pearson
missioners of Bankruptcy. Mr. Norris attended on behalf of 13, John Senior
Mr. Hilton ; there was an examination of Mr. Topham onls Peter
Boggs, (21,0'
that occasion ;it became necessary for him to give some ex- 15, Deatneirz Anr.d '
planations, and then this circumstance came out, namely, 15, John
that there had been a transfer iii 1836, without the b ur
appro a- ,
tion of Mr. and Mrs. Hilton, to Mr. Hetherington. it

The JUDGE said he should not admit as against the party
to whom the title was given, declarations to do away with the
effect of his own acts. He would, however, take a note that
such declarations had been tendered, in order to show that the
plaintiff was not entitled to the deed in question, as against
the defendant.
Mr. BAINES said this was his case.

3e JUDGE said there was no case at all. The property
been conveyed in the regular course, and the plaintiffs
entitled to the deed.

111,• 1•••.,.•
The jury, under his lordship's direction, returned a verdict
for the plaintiffs for £4OO, subject to the damages being re-
duced to 40s. on the deed being given.

HIGGIN, ADMINISTRATRIX V. WATSON.;
This was an action to recover the value of certain house-
hold goods demised to the plaintiff under the will of a per-
son deceased, which the defendant wrongfully detained. The
parties reside somewhere in the neighbourhood of Burnley.
The circumstances of the ease were uninteresting ; and the
jury returned a verdict for the plaintiff—Damages £54.

JACKSON V. PRESTON

This was an action to recover damages for an illegal dis-
traint, at Warrington. Mr. Wortley and Mr. Atherton
appeared for the plaintiff; Mr. Dundas for the defendant.
The jury returned a verdict for the plaintiff—Damages
£lB 18s.

LIABILITY OF DROKEBS

ILLEGAL DISTRAINT

MARSH V. GERARD AND WARD

The parties in this case live at Eccleston, near St. Helens,
and are connected by relationship. The action was brought
to recover damages from illegal distraint, under circum-
stances of no public interest. Verdict for the plaintiff,
damages £6O-.
The court adjourned at seven o'clock.

Iftaritt t. 3.

LIVERPOOL PROVISION MARKET, APRIL 4

Very fine Butters are rather scarce, and are the only descriptions
at all saleable. We quote the price of such 86s to 88s. Middling
and inferior kinds, although offering at an absolute sacrifice, can-
not be parted with. The Provision trade continues in a very dull
and unsatisfactory state. Beef of fair quality for ship stores, we
quote llos to 115 s per tierce ; Pork 60s to 66s per barrel. Bacon
in moderate request at 50s to 52s per cwt.