Court Of Chancery, Wednes...
The Times, 1824-01-29T00:00:00

LAW REP0127. The LORn CtsA1i6cLi t` prdeelled'ri6his]ud~meit, tbith -VasI iiipart-yronouncea on Woniy mornink. His Lordi-hio Yead the cvmPlaint int tae appeal of. an isitie haviig~ been-sent, to the assises inatead of directing the plaintiff to bririg his action. -He was of Prisirnthat there 1~as allegation enntiirjrfor an -issue, and tbTat an is.- 2'Jei and not an actton, ougbt to hatve-been directed.` Upon the sub- ieqt of the~ nav trial, he thought that-there was. ernough Within:'the -ibYcousera of the record to. warrnt thadt d-ecason'.of th'e Mfaster of tRols. 7C~ cme backc to t6e aposl -as to, the :main subject-- namel, n~ains theorigial degree. te-swns fret-to Say5- that hi lioiad an dereupon thenfrst petition~ heouldbavrerefacrdit by sme oieratiois,to dispose of the equiity arising upon- the case 5t~teprptrnterretti ofthe=trm of the agreement, which had ~.lhatn rise wilt uffciee cearnless in anjr part. of -the pDrd- ceeIn~/ Te bll,the answer, -the charge ot the Judge n4 Nisi Prfa, an th verictof thie j urk,'all bore-'reference to alterations and iproveentsby.11r. Gourlavr ulpon the estate., and not -in re- laton o te uesionwhehe thy fllwithin the terms of the agreemnt. Sr W. rant dcreedthat r. Gourlay was- entitled to apecficper*rmace "f t~ ageemntI and.1lso to bring an ac- toi, o tr anisse t deemine hatcompenstation he had a right " acoiin toth te'n ofth ageeent." The depositions of o.vdene entto ho wht ateatinshad-been miade, and at what probble xpene, ut wthnurefeencto-thistlecessarydirection of' the ecre. Mr Goulav ad dvaned mch uon te brndhof the wasno threto aywha nghttohedone between manadmn hut hatho ad 6 d bewee sutorand suitor, and ht~ate mnust Standbfrhi upon their learights. - Mir.. oro ol only be entle uner the decree toteexpenses of sucalrtin eta Were due to hm upntetrm teA,greement. Upon the first -ffirdict, which upntemi se a in faivour of -the Duke, the lilasterof the Rol ietdanwtrial. With respect to the pre- net-uippeal, itwas only proper toask-why the appeal w,as-notbrought -against that order; though he was ready to admit that4, had the appeal been then made, he did not see how he could have stayedl the lamue, as;hal must have been dissatisfied with a verdictwvhich un.. doubtedly did nolt give to Alr. G3oarlay those expenses which were in the corntemplation of the Master of the Rolls, the expen3ds to Whih. e as ntile acordngto heterms of the akreernent. As fo te vrdit uon te scon isue,considering that the Duk-e's counel usthav wache th isue romthe fir faming of- it t'o tIie'erice,and mus hae aced ccdringto tpie6ir best dis-cretion, the uke imsef suatb boud b wathy liad done, otherwise thee cul neer e-an ndto he itgatonof a sait.. He saw no reason for setting aside that, verdict, and upon thie whole he could riot dlisturb the original decree. . Upon dimsing. this appeal, his Lordship could not help adverting to the irregular and most improper -n5a?er which had been introduced into the order of these proceed. Ings. No counsel would have ventured to Mikse assertions-like tpge which the respondent in this apoeal -had indulged in, aste- the .-teof the appellant,and the afibirs of his fanirtf.Ths a ~r efrst time that the (Nurt had been affronted by th e arose Irre- P eddntwsltoel in I stiontherig-htofpartiesto actastheir owncouinsel: butthis wasnot th&ttime.by a-good many in which the decency of thteir proceed. Ingshad been outraged by sulch unseemly conduct; and it really oud become a question if tlieCourt'was not bound'to providesome order for the reni*erly of such an evil,-sneaning by that, to make such conduct in the parties offibnding one consicleration'it the proceedings either upon or after the jtudgmenL. He could alow no costs- in 'this ease, except the deposit ini Court. M1r. HA-RT said, thatthe deposit had been paid out of Court by a special ordtr to M1r. Gourlav. Mr. Gourlav--" Then sin IT to understand that your Lordship cutsrne out of the costs P * The LORn CiFAvcrLLOR said, " I will hold no conversation with you, Sir:- you have the customarycosts." - Mr. Gourlay.-l Will not your Lordashi p appoint me so me soli- citor to gather in my costs ?" The LoaD CHANEccLLOR-a.." MVr. Gourlay, I wil not sit here nnd suffer mYself to be addressed in thlis manner by you or any mani. Mlr. Gourlav Said, "1Then I understand that I am tohave nothing; to support myself; and muttering s'ome other expiressions to thos7e who were nearest to him, he depiried the Court. COCKS. V. B&tCLb5Y. . AMr. Psji'ws, in the absence of MVr. Horse, who was kept awvay by a domestic calamity., opened this case, which was int the navture of a motion for fiurther directions upon the fulfilmaent of a decree obtain- ed under the following circumnstlances;-. Dr. Treadway Nash, of Worcestershire, had desirted certain lands by will, of which Liady Somners was to take a life estate, and the remainder had vested in hier eldest son, wilh remnainder over to her secotid son, re- rosindaer to her daughiter Alargaret. The trustees hai founid difficulty in effecting the conveyances according to the wig., anzd had cme to the Court for assistance. A deceme had been obtained, directing the execcution of the coniveyanjces according .to what the Court thoucht was'teh proper andI legal.eonatnseton-to be ,pat upon the will. UTpon a rehearing, which the Court had allQwed, it saw reason to alter the opiniion given upon the decree, end another decree was about to'isswe upon that improved understandinIg Which the Court professed to have at the time. The decree was stayed, and as there wvere difilculties which were' not to be cured by anyCOurt on making the dispositions and settlements, an act of Parliamnent was obtained for the purpose, Whbich in a sense adopted for the decision 4of the Court that first decree, in which on the second heaying it was successfuUy maintained that the declaration of the trust use wai al- together erroneouis. They wrere compelled, therefore, to comne back to the Court for further -directions, inasinuch as that the order of the Court and the act of Parliament might be considered as boingat va. riance. Hi was awaTe of the general andI binding authority of 'agts of Parliament: but in respect to private acts, wherever difficulties occurred as to the construction of their powers, he atiprelsendea that at was usual to consider what was the wrill of the parties in applying for such an act. Now the intentioni of this particular act was ex. Kessly declared to be, to carry into effect the wil of the late Dt. as;ads,he apprehended, it fell perfectly within- the jurisdic-. tion of the Court to comply with the requestt now tnade~forthp issuae uf furtherdircetions to carry the will into effecbt, agreesalyto theabct of Parliament. It was, therefore, of the furst importance to kno.w what w-as the effec-t of Dr. Nash's will. It appeared that, upon the marriage of hi's dauighter Mlargayet with Lord Sioners, he basd made over certain estates, which wvent by the joint name sif the Dodderhill estates, as part of the marriage-settleinent, and they were chargeable,.jointly with the Somers' estate, with the ,ojntore ofLady Somers andlportions forthevyoungier children. He nad sueceeded his brother in the Strenchami and other estates, arid he had purchased particula'r est-ates in the parish of Dodderh'l besides thoze before mentioned. Of the DodderhilI estates liady Bomers was tenant in fail, with remainder to her eldest and othi'r nens in tail niale, with remainder to . her daughters in rail general. Dr. Nash wished to take the Dodderhill estates out of thie marriage. setdeletnt, and add two other estates to -it for a settlement for the second 4eon of Lady Somers. He therefore directed by his wvill, that aaexchange should be effectedl with the trustees of the enarriage.set. tlemient, endl that the Strencham and other est.ates should be given for the Doddlerhill estates, the di%frence of' value to be made up out of the personal estate of the testatoDr. The estatet were then to he conveyefl to the uses of the will. It would be 'necessary to observe the aituation of the property as it stood at the time of passing the ndof Parliament. The exchianges had been efFected. The Djod. derhill estates were conveyed to thie use of t'he trustees of the will. The estate, therefore, left to the second son of Lady Soutlers has! vested, all of whtich was contrary to the suppositions upon whicht che first decree was made, and in whichi the usies of th-. trusts ordermal as e eecued y te at o Paliaabt had been erronieously de. dare, Tey herfor moed hattheparties should be directed to xe4lt deds f rus ageeblyto heor4er in the 3econd decrei, inseadofthefist ecre n wic thseuses had been erroneously, Mr. PzmBEn-rom appeared for the children of Lord Bastuor, eldest son of Lord Somiers, wvho were born all of them since the de- cree, anid two of them since the act passed. The SOL1CXTOa-.GBwERsAL proposed to argue the mnatter from the begnning, otherwise the mind of the.Court cpald not be suffi. ciently informed as to whit had formaerlj taken place. Mlr. E~'Eps apprehencded that the So 'citor-General would not he enlatlaud to go into the case so largely, except on a petition 'for re- beari.nj. Certainly he had not received the slightest intimiation that Inis learned friends had that intention. The Lopm CHANCELLOR thought that the case inust be argued. over again, and he wouldI hear- the argumnent withiout pstttlng the pa!rties to the circuitous course of a petition for re-hsearing. 11e felt that he was espeially -bound. to do so ; because at ithe Isaft hearing he was not aware that the act nowv produced Was in exist- 6ene..- He would give -the ot'her side an equal opportiuity. . - ;'he SstLo.EEA said, that it -was his impression that -thepretsent Lord. Eastnor was not entitled.'under the will of Dr. )ash to the estate now zo conifidently claitmed. The directifins in lWe first decree conveyed that in almost express-eienus. Oh the -re- bemiv his Lordship waf opno thatth execuition ofthedecree should be' postponed. But certainly 'thnatdecree almostexpresslv declared thatILord Eastuor arid-is ~children could not tahe- under.I tlev wzzitll,andthJaunes Somersi Cocl.-s, theseconli 6oiu,shosld'talie.-- The daughter of Pi Nish was married to Lord Soniors, upon whbich event he settled'-the D6dderhill aisd other estates upon berand her offpring.-, He afterwards proposed to himself to make-what* is some. -tines called a secona family. He w'isl~Vd to continue the iamme end: hornour of the fngeilv of Nash, whlich h,) liheretofore been considers. ble in the county of" Wer cter. He could not' directly regain Clue ,Dodderhill estates, hut he by will-gave an equivalent for, themn to' rtm eeof the marriage-settlessent, and the estae so recovered. vt hIoe conveyed to the second sonoaffLord Somners. Theitdentical -object of. the will, therefore, was to postpone the period.at which it ar,ould be necessary to fix the character of die party wlio -was to be 4neAaed siecond son according6th die tios ' the will anid to reiei,ve4hje Dodderhill estates from, the hued en of joiatirre and por. tions With which it wvas charge2WI,.together with the Somners estate. 'the questi9v-l$tween -his learnea- frienid, 'Mlr. Pepys, and Itimself wras-at what pqipd time did thlis character ofsecond eon become fitem? hi other w~ords, who was the recod eo-acrding to the-I 'wflh? - They mnaintained that it as:fieodfliWaLord as or, who'. was aithe time se-cond son. Hig eldest brothier had fallen in some~ of,the gallanit achievements' in Spaii. At the time when he was living, tile present Lord Eastnor, john SomeFs CQkek, was the as-. ci~ so, nd anss omes Cch', ovthe second son, was then' fhi~dson:-, H contndedthatthe priodflitfixing - that chayeterof ~con - en, acordng o -te inenton: ' the will, ~ -i* etarrvd."~he eaingandtrssofDr. -Nash'v- will'wk~ ~ - ix ap~rod hic-eduld nodt be conitroverted- faihy,hfthedipostios-wer atenedto. - He knew th'at where gan state veste beforehand ith a paty -about to toake to' an estte, .it Was extremyr difcult to 'divest him of that title. The Lord ChaVoelor, however,s inbis firstdecree bad declaredthe opinion that the period forlf'ng upon the p3rty who was to take as seoond - no had no-, arrived ~n h a ieof the'decred absolutely post. pqpg.d -that peri on the sec6nd' son would not erejyc befor iesadSomers'e d se aath. iileried 8i-ends qn the othier side conte-nd, ta jarieassoon as Lord Somers' eldest s eon Atained fullage. He contended that the *ill could not mean tp fm- lxtie tiile before the estates sboul come intos pssepuioi1.. Thme eiseeliy the wiihati a eglesta tes inmalithereial Proprty, Tand Ahev -were -trustees of all e personal property of the eh'tatoe j4 Somers wan constituted by the will tenant for life of eVery thing, even of the -fond out of vhich the -eq'ivaetent :was to have ben, paid for the -exchange, and -also, of th. Dodd4rh'dl estate, which the trustees of the marriagesettletneuL wer to give up to the trstees of the wilL Ths chaiadterrof aeco n .,would only -beelong to hiim. who should ownit at'the"ftermination rf her estate for life. lt was providesdn:d.the sviMl;, that-%it.mih six mhont.hanfler Dr. NasNs decease, Ig Srinere andheteldest son,- or i f Ixe w-ere dead theBssue of the-eldest abn,sld acquite the fee. ciennle of the Doddtfi~lll eatates, an ieutufeiconvejances to the us- -srf the will. Still Lady Somers v;2jo he tenant in life o tb t the lpngusge of ts trtUhtt ypo1i as- 'alIialy' es it Co'.4' e5pcs, thst testator iltM&otieare the exeetion eVitis iskntiOnI*' soahdents and chance stiU less villing did he *ho hihmself to tru# to.theInclinations of th6 parties. The:Lonns CiAw;cEtLLOB asked to-what uses the conveyances then made were executed? -The SOL1WIToRGE?EILAL remembered that is - Lo'nsiisip haa pdtt that question on the former occasion, anudhe confessed that 1h hAd'.s murh dif,cultv as before in answering it. He contended for his resentarume b t that it made no d'fflcrence whether WY, SomeishZ1 by a trustlife estate, or a legallie.estste. The=On CHANCEL,LOR said, thatthereal qestlon wa9whe- IthEr or'hat', attending to the intentions of Dr; Nash'6swill, it'wouid be pcsible for the Court to insist upon the executionof what might be.called the learer intention, rtionll ip'eaking. Sappose. Lord Eastnor, who had a vesSed interest in the Dodderhill estates, had levied a fine, and-barred' his own issute. Again, how.could -they, supposing the remainder had vested, convert the tenancy in tail into a tenancyfor life? ' The SiL=Ci oR-GETE2AL, said, that those very difficulties were obviated by. the-dispositions of the will, bv which the trustees were seized with thelegal estate during the life of Lady Someers, sothat it impossible that they could convey to the second soh titntil after her death. There was, besides, a clause empowerirg the trs. tees'to cot timber during the hife-of Lady Somers, the prodi7ce of which, together with the residue of the personal estate, was to be .laid oit in otherestates of land to be conveyed to the same second s9n of LGAy Somers, afterher aeath. The Court would never be. heve thai. there were to be tw7o conveyances; ard to suppose that the character of this second son was tobe fixed before tbetime in.wlat&b the whole estatewas to be conveyed, was a presumption totaUll incon- sistent with the legal seisin of the property, atnd with the general purposes of the will. It would be imapossible for the trustees to convey the estates before, without subverting the purposes of the will. The first decree admitted this to-be the right interpretation of the will, for it directed that there should.be a conveyance executed to thc trust, and for the use of Lady Somers for the term of her natural life, .iid then to John Someis Cocks. in case his elderIbrother shall be then living, or, being dead, shall have left issue. -Here was a direct restrant. In the opposite event he was to take nothing. If the conveyance had then been executed; it must at this day have barredaLord Eastzor and hUs children, The LoaD CHANC f,,LOA said there was nothing but dificulty in explaining this mysterious will, wlich, indeed, could never-be explained, unless thev could bring back Dr. Treadiway Nash to do it. But he would pu thlis ease :-if there was to have been two con- veyances, it was clear there must ha-Me been one executed in the life. time of the wife; and tien in what. way eould the Court have di. rected that one to be made, so as to prevent the'estate from-vesting in the then second son, new Lord Eastnor ? And then supposC that Lord Somers and his wife had actuily-died before thetconveya4ce had been made, what could have been done with the will ? The SOLICXTOk-GEbfERAL admitted that the last case was one of impossibility, but as the circumstances had not occurred, he hoped that he was not caUed upon to argueit. If the conveyance were this instant to be made, according to the decree, it would bar Lord. Eastnor and hiis children; they would be excepted, by any 4cclararioip of trusts, in which the eharacterof second son should be fixed. That, character could not fix in James Somers Cor, who now actually is the second son,' because he might lose it befiore the death of Lady Somers. The? Lohnb CfANCELLOR put this essca - The eldest son of Lord Somers died, having attained the age of 21 years and six months. John Somers Cox also attained the age of 21 yeara and six months, and died-no conveyance having been rnade. But is he not, as well as Lady Somers, called upon to do sonme act towards eaiecut- ing the purposes of this will ? The third son also attains the age of 21, anddies. Was all that they liad done to go for nothing ? At this rWte the estate night not vest for ages, for it might so hap- pen that there would be no person to answer to this supposed de- scription of secona son. They were not without a case in which an estate had been recovered by ejectment upon the ground of infancy after 200 years liad passed. He acknowledged, however, that the minutes of the last decree coald not stand, because he then had no knowledge of the act of Parliament. Had it been mentioned, he migt have questioned his own right to entertain any re-hearing of this case at all, if it wet to confirm2 a decree before pronounced by him. He proposed to hear the remaiader of the argument on llon- day, at vhich time he would sit for the sake of despatch, notwith- atnding that it would' be the feast of the IPurification, and that bu- siaess Was to be done in the cock-pit on that day. COTT OF CHANCERYTWJ',VEflAT. JA?.-28 nnATnT.AY V. TrTTZ nTTrTT nP Cft C2q.rg