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

William Hetherington died

3y his will he devised

all his estate to.

widow, who was now Mrs. Scholes, and to Mr. Jonathan
Grindrod. Mr. Hetherington had advanced to Mr. John
Topham, an attorney of Liverpool, the sum of £1,500, and
he held as security the deeds of certain property in Woolta?,

and in Brownlow-street, Liverpool. ^ln September, 1536,
Mr. Topham became anxious to pay off this sum, and he
wished for the'property at Woolton and in Brownlow-street,
to substitute some other security. This business was ma-
naged by a Mr. Pennington! Mr. Pennington communicated

with M. Hetherington, and in the end it was agreec

Topham should pia' £7OO of the mortgage, and give secu-
rity, for the remaining £BOO. On the sth of September, 1836,
Mr. Topham paid off £7OO ; he therefore received back the•
deeds relating to the Woolton and the Brownlow-street pro-
perty, and he gave an undertaking to assign a mortgage for
£BOO which he himself had upon certain property in Cheshire
—the. property the title-deeds of which the present action
was brought to recover. A Mr. Price had mortgaged that
property to Mr. 'Popham,
..lt 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 ; arid 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 assigpment of this mortgage

tb-at, Mr. Hetherington became entitled to all the title-deeds
relating to that piece of property. At the time when this
security was changed, Mr. Tophain 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. Hetherinkton'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. It 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 the poss.ession of Mr. Hilton, the de-

iendant. Mrs. Price -then refusal., to pay the money ;so
that the present plaintiffi couktlng4ler.avail themselves of
gag-e
-money back; because

r of sale, norget the aim

Mrs. Price would nntpay it till tiiu-deeds were given up to
her. (le understclinktiat- the 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. Tophatn, as her trustee, and that part, if not
the whole money which Mr. Topham advanced to Mr. Price,
and, Price's mortgage to Tophain, 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 he 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 counsel) 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 Bth of January 1833, (to re-
cover which the present action was brought,) was then pro-
dueed from the defendant's custody, and put in : also the
lease, by the trustees of 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.
Mr. James Wilson, clerk to the plaintiffs' solicitors, prov-
ed having demanded . the' deed from the defendant, and that
I' he refused to give it up.- •
This closed the 'plaintiffs' case.
Mr. BAINES, (with whom was Mr. G. Henderson,) then
addressed the court and jury. He' said he appeared befcire
them as counsel for the defendant, and he trusted that he
should be able to establish, to the entire satisfaction of the
jury, under the direction of the learned judge, that in point
Of law, the defendant was entitled to retain these deeds, which
were unquestionably in his possession. He should have been
glad if this investigation-had taken place elsewhere, not that
he had any doubt Whatever of the justice of his client's case,
but because, in order to explain folly the nature of the cir-
cumstances under which it came into his possession, and the
nature of the circumstances which entitled him to retain it,
he shouldbe under the disagreeable necessity of making strong
imputations upon tae character of a professional gentleman,
which he would gladly have avoided had it been in his power,
but which, as he could not avoid them consistently with his
duty to his client, he must not flinch from. He only desired
the jury to be in possession, in a clear and connected man-
ner, of the circumstances of the case, because when they un-
derstood them thoroughly, they would see that nothing could
be more just than the claim of Mr. Hilton to retain this
deed. it would therefore be his business to go through
the whole transaction, 'and if the jury would follow him in
dates and facts; he should be able to make out a complete
case for his client. They had heard that Mr. Hilton, about
February, 1833, was upon the point of contracting marriage
with Mrs. Shallcross, a lady of considerable property. She
bad several sums of money in real securities. She had
£1,600 in her own hands ; and she had a further sum of
£BOO in the hands of her. bankers, Messrs. Heywoods of this
town. Being about to contract this marriage, it was deter-
, mined that a Marriage 4ettlernent. should be-drawn up, and
Mr..Topharra it was arranged, should be the trustee under
that settlement. This settlement bore date the 27th of Feb.
1833'; and Withotat go througlaathe whole.of it, he would
'grate its proliiiions, as far as they related to the present case.
It was provided by this deed, that Mr. Topham should be-
come the trustee, that all thesecurities which Mrs. Shall-
cross held for money, should be aransferred 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, for 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'iaterest of these several securi-
ties ; that after, the death of Mrs. Hilton, if she should die
first, Mr. Hilton should be peratitted 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. Hetheringtim,
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, he 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 money ; 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 beard, 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. Hiltou 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 settlemect, 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 transfer was made to Mr. Hetherington
in the year 1836. , Down to 1840, when Mr. Hilton discovered
the breach of trust of which -Mr. Topham had been guilty,
and learned that this transfer had taken place behind his back
in 1836, and-to-the bankruptcy of Ig4o;"thri
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. Hilton 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 of it 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 had 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 be 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
I of the transaction ; for he would now state some circum-
stances to which be would call attention in point of time and
fact. In 1840, Mr. Topham became bankrupt, and then all
these matters 'Came. °et. He was brought before the Com-
missioners of Bankruptcy.. Mr. Norris attended on behalf of
Mr. Hilton ; there was an examination of Mr. Topham on
that `occasion ; it became necessary for him to give some ex-
planations, and 'then this circumstance came out, namely,
that there had been a transfer in 1836, without the approba-
tion of Mr. and Mrs. Hilton, to Mr. Hetherington. It

It had; howevey,

would he bit, 'duty to call Mr. Tol
been suggested to him, that Mr. Topharo might say that the
money which he laid out in the year 1833, upon Mr. Price's.
mortgage, was not the trust money of Mr. and Mrs. Hilton.
He could not believe that when he knew what Mr. Topham
had said again and again, upon former occasions, what he had
written, and the documents which he (the learned counsel,)
held in his hand, in which he had given an account of the
matter, expressing his sincere regret that Mr. Hilton should
have suffered from his misconduct. That there was a degree
of intimacy between Mr. Topham and Mr. Hetherington was
clear. They had been clerks together, and when the jury
hould put to Mr. Topham,
!notified 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 bad full notice of the
nature of the property of which Mr. Topham claimed the
right. He contended that under these circumstances, Mr.
Hilton bad 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. Topliam'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
had 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.

and when they remembered

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 it.
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 circumstanees, Mr. Topham, he 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 that 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. ZAINES.—No answer being re-
turned, he was called by the Marshal upon his subpoena, with
the same result.
• • • •

Mr. BAINES said; that under these circumstances he 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 he bad no evidence of declarations made
before the' transfer, but he had of declarations made after-
wards.

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. _

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

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 BROKEBS

DOUGLAS AND ANOTHER V. GLYNN AND ANOTHER

The plaintiffs in their declaration alleged that the defen-
dants were indebted to them in the sum of £425 10s. for
goods sold and money received upon an account stated. The
defendants pleaded that they were not liable.
Mr. Knowles and-Mr. Cowling appeared for the plaintiffs,
who were James Douglas and James William Douglas, who
carry on business in Newfoundland ' • and the defendants,
Henry Glynn, and Richard P. Glynn, brokers, of this town,
were represented by Mr. Wortley and Mr. Crompton.
The action was brought to recover £425 10s., the balance
of £925 10s., for a cargo of cod oil, which the plaintiffs
shipped to this country in December last, by the brig Marga-
ret. The oil was consigned to Messrs. Valiance and Henry,
merchants, of this town, who acted as agents of the plaintiffs
in the sale of it. They sold the oil to Mr. John Davies, who
was then carrying on business here, and the mode in which
the sale was effected was this :—The defendants who had dealt
with Messrs. Valiance and Henry, acting as his agents, pur-
chased the oil for Mr. Davies, at the rate of £3l 10s. per
ton. The invoice and a note of sale left no doubt that the
sale had been made to Mr. Davies. There was considerable
difficulty about the money, and at last Messrs. Valiance and
Henry received £5OO from the defendants, leaving the balance
of £425 10s., which it was now sought to recover. On the
day that this balance was to be paid Mr. Davies stopped
payment. It was shown by the evidence of Mr. Thomas
Dover, of the firm of Thomas Dover and Co., warehouse-
men, that on the 30th December, they received an order to
transfef the oil in question to the defendants; and that they
were still in possession of it. Under all these circumstances
the plaintiffs contended that Messrs. Glynn were liable for
the balance. On the other hand the defendants contended
that the plaintiffs bad trusted Mr. Davies, and that instead
of seeking to recover from the brokers, hey should prove
against the estate of Mr. Davies, under the fiat issued

gainst
The jury returned a verdict for the plaintiffs—Damages

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.

tfiarliets.