Law Report.
The Times, 1824-08-10T00:00:00

ThC LORD CHANCELLoR this morningsuperseded the commnis. sion of bankruptcy in this case, with costs to the petitioning party as between attorncy and client, on thc ground of concert between the Parties. His Lordshio observed, that this weuld be likely to be one of the last cases of this kind which would arise, as by a clause in the late Baankrupt Act, a trader in insolvent circumstances might, if he pleased, have a commission of bankruptcy sued out against him by concert with a cre(litor. BIARSACX V. 17AUtSAcE. A motionwas made arisingout of this case on tie part of Mr.Browne, for an order to compel Colonel Mlarsack to make a suitable settle- ment on his sister. Mirs.Browne,or to gobefore the -Master, in order te ascertain what should be a fit settlement for the lady. The circum- stanees of the case were these:-Alrs. Browne (formerly All iYs Blea- nor Alarsack, the sister of the Colonel) was a ward of Chancerr, and had married AMr. Browne without the consent of the Court. A wife. Browne took eointer-preceedings, calling on the Colonel, in whose hands the whole property is, to make a provisioni for his sister, by giving her the sum to which she was entitled out of her father's effects. The Court on that occ;asion made an orler that the Colonel should make a temporary proyision for the lady, until the amoutnt of her fortune should be ascer- tainedl. It appeared that the father of Colonel and Niss 1Mar- sack died in MN'0, leaving a will. by which provision was made for thelatter. The Colonel, as heir-at-law, had succeeded to the propertv, but as yet had rendered no account of the exact amount of ihe brtune to which his sister was ertitled. Mr. SHADwELL, Ibr M1lr. Bro-wne, this day conterded that Co- lonel Mlarsack ought to be compelled to mak-e his sister a suitable allowance, and lie submitted that 5001. a year would not be too much, considering the fortune to which she *vould be entitled. The sum of 2001. a year, alreadty advanced by the Colonel, was too small, and certainly wsS not sufficient to comply with the order of the Coaur, which ordereda " suitable allowance" to be made. At'e trusted under lthcse circumstances that his l,ordbhip would fbel no difficulty in di- recting a reference to the Mlaster, in order that an cquitable provi- sion Riight be made. Dir. SUJ GDEN, on the part of Colonel )larsack. opposcd the mo- tion, and observed that its object, as well as that of the original suit, was no otler than to learn the amoltnt ot' the fortune to which MIrs. Browne would be entitledi. It was, however, impossible that that could be done until the examination should be concluded. Co- lonel Nlarsack did sot yet know what the sum would be, and of course could not inform the ('ourt. As to granting an allowance of 5001., lie thoughtit was out ofthe quesLion. There was no pretence fbr asking for such a suin. It was asked oni tie supposition that the lady would be entitled to 10,0001. oi 11,0001., and that at 5 percent. this allowance ouigltt to be made ott of it. As well might the par- ties have asked fbr 5,0001. a year. lie hoped his Lordship would dismniss the motion, and with costs. Slr. SHADIVELL, in reply, said, that it was well known that the father of Colonel Marsack had made ample provision for his daugh. ter, who was still an intlant of little more than l( years oldl. The LORD CHANCELLOR observed, that the question was not what was righl to be dotie, but how far that Court had authority to interfere to compel Colonel Marsack to mwake this allowance. It ap- peared that this young lady, who was a wvard of the Court, had mar- ried without its consent, and it had been ortlerect that the lady's estate should be subject to a settlement; but it should be recollected that the property out of wilichi this allowance was to be made was yet undefined and its exact amount altogethier unknown. Wlten the Court interfered to direct a settlement oftthis kind, it was of course to be expected that every body concerned would do their utmost to assist it in making such allowance, particularly when out of a per- sonal estate, of the extent of which there was no specific informa- tion. It was the result of his own experience in thtese matters, that when young gentlemen chose to mnarry young ladies wvho were wards of that Court (he begged not to be understood as applying this to the party before the Court), they liked the lady's fortune at least as well as her person, and it was a knowledge of this feeling that induced the Court to compel a settlement bv the husbaid on tbose occasions. On the other hand, he would admit that it was possible to be too hard upon husbands in such matters. as the e%ect was frequentlv injurious to the lady's happiness. The husband would not be likely to treat the larly quite as well, when he fotmnd he did not derive that pecuniary advantage from thEir union which lie had reason to cxpect. It appeared to hin that in this case the Court had no power to compel Colonel Macsack to nake a greater allowance titan that already mnade, but he would wish the Colonel to state by affidavit what he thought would be the proba- ble amount ofthie sum to whicht his sist er would be even tuallv entitled. At all events, lie thought tde Colonel would be entitled to his costs. M1lr. SUGDEEN observed, that the amount of the young lady's for- tune liad not yet been ascertained, and it would be impossible to know what it wiould be until the srit was determined. The LORD CHANCELLOi said, he did not want to take a far, thing out of the pocket of Colonel Marsack. [IC vwshed that lie should mnake the affidavit, as it would materrialiy azsist tlme Court in itsopinion as to the ultimate settlemnt to'be made. At presetit, the CorL was quite in; the tlatk as to the probable amount of the lady's fortune. lie supposed it was the object of Mllr. Shadwell's client to get as much as he could out of Colon1el Silarsack, biAt he thought he had very little chance of 500- a-year as an allowance. However, the Court would say no more until tbe afiidavit was filed. The motion stands over till the affidavit is filed. MONDAY, Aui. 9. KERRtOD V. LAMWLESS. In this case an injunction had becit obtained in the Vice.Chancery Coutt, to restrain the Comraissioners of the Lottery from paying to the defendant the 16th share of the ticket No. 18,708, which was drawn a prize of 20,0501. in Nofember last. The circumstances stated in the afidaviLs on behalf of the plaintiff were in substance these:-The plaintiff is a hatter residling in the Strand. Before the last drawing of the lottery, he joined with Mrs. Lawless, the wife of the defendant (who is a livery-stable-keeper, and who also keeps "tite Grove," or " Shades" wine-vaults at Spring-gardens), in the purchase of a 16h ehare of a ticket. Mlrs. Lawless purchased the ticket, whiicgh remnained in her possession until the drawing was over. The last day's drawiig was on the 14th of Noveinber, and at a late hiourin the evening of that day, the ticket was drawn a prize of 20,0501. It had been regi8tered it the namnes of Slrs. Lawless and Sir. IKerrod, and ttteir nanies wvere put ots the back of it. It ap. reared from the affidavit of a Alr. Smith, who is a clerk in the office where the ticket was bought, that ott finding it was drawn so large a prize, he called at AMr. Lawless's house, between one and two o'clock in the morning of the 15th. Thefamily were all in bed, bat on nearing a loud knockitig at the door, Alr. Lawlesu looked outfroni the window, and asked what was wanted. Smiih replied, that he wanted to see Mlrs. Lawless. On her 4ppeiring at tde window, he caied outthat oneofhcr tickeas was dravn a prize of 20,0501. Lr. Lawless thanked him for the inftormation, and he withdrew. It furthek appeared, fromn oither afidavits, tiet as early as half-past sevon the sme morning tle defendant celled at plaiutff8'~s house in theStrund. Plaintiffwas not up. at the time, and defendant called again, and saw plaintiff. at eight o'dock. After some conversation aboat a biorer which puLtS Itiif had wanted to hire from defe ad2d,t, defenidant spokeab*ut-tba lottery Plaintiff said he had a share, and defenaant immediately asked whether he would sell it. Plaint ffaid.-,e aboyuldhavpii for' two guineas. De-fendant yeplied that two guinea were ?oo i 1for any.sixteenth-that he lhimself had a sixteenth which he *ould willinjIv give for that sum. (T Is sixteenth, ~t eas stroted'itt , SlainW's affidavit, was a shere of a ticket which had been drawi i ank on the preceding day, and it was alleged that -defel- dant was awaie that it had been so drawn.) PlaintifF -&fud to purchase it at that price. It was then proposed bae deea*d.nt that they should "1toss up" for 'both. Tbis wa ageed to: -they tossed up, and defendant won. Plaintiff sworeposil, that at time he was wholy ignorant that his share had beem draw n prize; but hefirmly believed that defendant was awareofthefactEandthat the "toss U" was proposed by him with the view of defraLding the plaintiff of giS share. It'was farther sworn by a person anmed kornsby, who is waiter at a hotel in Spring Gardens, oppolite the dct endant's house, that at a very early horar on the morniogof this transaction, defendant's son came to him and inquired whether his fellowvservant would sell a share which be and somne others had bought in the lot P flornsby did so, and his fellosv servnts rer^used, and told him to send young LAwless about hiis bu- siness. It was also sworn by two of the servantS, who had, along with other parties, purchased a sixteenth of tie same number which Ilrs. Lawless bought, that Mrs. Lawless kmnewthey had this share and that on one occasion she said to one of them, " Henry, if this' ticket turns up a 20,000L prize, it will be the making of us all.- These were the principml facts on which the plaintiff relied, and an these the injunction had been granted. .On a subsequent day Itir. Heald moved that the injunction be dissolved. The affidarits in support ofhis'motion -were pdncirallv thbse of the defendant and his wife. These gave a very diftorea colouring to the transaction. The defendant's aflidavit set fortb. that on the mroming of the day on which the ticket was drawn, plaintiff' came to hire a horse from bim for tbe next day. Defendant offcred him a back, but plaintiff wish. tSl to get de,endant's own mare. This defendant at first refused, but haning in the course of the day changed his mind, he called early on the next morning to let the plaintiff know that he might have the maze. This, he alleged, was the cause of his eslling upon him at that early hour. After some conversation 2bout the horzse plaintiff spoke of the lottery-ticke, and offered to sell his share f_b two au:neas. This th,, Aoedn Pf ....A;-. ttiat the plaintiff proposed that they shou "toss u or h ^ two shares. Defendant positively swore that at that time he was wholly ignorant that the share wbhic hit wife and plaintiff had jointly pLU'- cased was drawvn a prize. tfe admitted that Mr. Smith bad caled on the Preceding night and stated to iMrs. Lawless that ker tieket, No. 18,708, was drawn a prize of 20.050L, but he added, that on hearing the number Mrs. lawless said, " I thank you, Sir, but my numberis 18,738:" thatonbearing tkiis,and thin} ing it badbeen arniti. take of the clerk, he and his wife retired from the window, He further stated, that soon after the plaintiff and he had tossed for the tickets, platntiff came to his house and spoke of the goon chance he had' throvn away in havirtg lost his shae. He then said to defendant, " AR you have got te good a bargain fromr me, 'ou ought to make me a present of 1001. out of the 1,2501." To thisithe let'endf -epliedl, that he had no objection-that he would give bin 1001., but as he had not an much money about him, he would give him a check for 351., wfhich he gave, and whlich the plaintiff accept. cd, and appeared satisfied. The affidavit of Mrs. Lawless statfss that her hslusband had not known of her laying purchaserr-1 share jointly with the plaintiff-that she intended to have kept the produce, whatever it m-ight he, to herself. She accotnted for having stated to Mr. Smith that her namber was 18,738, by saying she bad got her son to copy the tickets which sha ptrclaser, that lie in a mistake had put down the number 18,7A8, instead of 18,708; that at the time lir. Smith called, she was un- der the inpressioa that the prize was not hers, and did nro discover the mist abe until after her husband went out in the moining. Witb respect to theson having called on the waiter at the hotel, for the purchase of his ticket, lr. and Mrs. La:wless stated, tiht they did not believe that he wvent out that mornina, but that if he had any conversation respc ting the ticket, it was not with their consent or knowledge, ana that he had not learned from either of thela, at that time, that the dcket was drawn a prize. There was no af5idavit put in by the sos. .After hearing the sarguments on these facts. his Honour tibe rlTtcE CH^NCELLoR dissolved the injunction tbus far:-lie al- !owed the deetndant to draw 5251., 1001. being impourded as costs, shouldt tie decision on the claim to the rernaiuing 0251. be fir thc plaintiff. Betbre -his decision was carried into efFcmt, an appeal was made from it to the LoRD CatANCFLLOR, and in this shape the quLestion came before his Lordship. On Thursday AMr. SE'eALD, on behalf of the defendant, moved.- first, that the decision of the Vice-Chancellor be set a.side ; and secondly, that the defendant should be allowxed to receive from tbe Lottery.office 89251., the remaining suRI to be brought into Co=rt to, abide his l,ordship's decision. The learned gentienian, after going through the affidaritsas sta!ed above, contended at considerable length that th*e allegations of thce plaintiff had been fuisy and satisfactorily answered1 by the defendant. Air. PITLLItAMOR followed on the sameside. M1r. HoRNE for the plaintiff, said he was instructed to oppose this motion, and also to move that the whole sum be paid i'nto Cptirt, to abide the final decision of his Lordship. lie thbei went through a detail of the facts, as set fortii irn the affidavits, and contended,that tshe conduct of the defendant had been meat frautdulent throughout. Tt was almost impossible to suppose that the conductof the fatther and son, on the morning after the lottery had finished could he the resultof accident. It was a coincidence which coula be explainedl only by tlhe very natural supposition tlaut they were both-aware that the ticket had been drawn a prize, Alr. KNiGHT tollowved on the same aide. In the courst of the discussion his Lordship intimated his dissent from that part of the Vice-Chancellor's ordler, which directed that 1001. should be impounded to await the final deision. As soon as the arguments were concluded on both sides, his Lordship ob-- se'ved, " I think that any one acquainted with the practice of the Court, who has4 heard this cause, must be of opinion that, after all Cna alow, they must at last end in diZ-~~g an~ ?lisu totr the question of fraud, WVhen the proceedings shall have been carried that tar, I tlank it very probable that the r arties will find their prize t.urn oct a blank. It may not, perhaps, become the dignity of this. chair to mention the case of the lawyer and thepa ties who routcsted the right to an ovster-he kept the oyster, and rgve each of hle clients a shell. I am afraid that when these parties have gone through the proceedings to which this case will give tise before it comes to be finally heard, they will findi tha thev will bave little more left. I woald therefore suggest, that to avoid this result, tlhat should be done at first which must hoe done at last-that an issue should be sent to trial, to decide the question whether or not there be a fraud in the case. 1 will give the parties till to-morrow morning. Let them be ready, then, to state to mne, whether thev will takc till AI onday to consider of giving a oaiut consent that stch an issue should now be directed. If I find tounorrow that they agree to take till .londay, I will say no more of it till then. if on Mon.- day I find that they shallagree to the issue. 1 shall say no more on the subject. If they do not, I shall be quite readv to live thenm rny opinion on the case as far as it hab already proceeded. If the parties do not attend to nmy suggestion, let them not blamne me hereafter." At the sitting ot the Court this morning, hir. P1LLIsaO.ts stated, on the part ot' lr. Lawless, that he wasquire ready to adopt hts ,ordshlp's suggestion, and allow the question to go to an issue at law, DI1r. HoRs;E said-No doubt Mr. Lawless was willing to try ont more chance for this money. On the part of Ir. Kertod he begged to say, that unless his 1,trdship was strongly of opinion that this mnst eventually be sent to an issue, his client was arxious to go on, as he confidently relied on the rncrits of his cae.-- He had filed in. terrogatories, and there was now only one witress more to examirne. The LoRD CHANCELLOR.1I arn of opinion, that unless the plaintiff can carry the case farther then be has already done by the affi-lavits, it must be sent to an issue at last * and I repeat, what I said befbre, that by the tirne all the Proceedings have been gone through, which would brifg the case to' that state, the parties will find that this prize will be a blank. Mr. HloRu-Ei.-As your Lordship seems to be of this opinion, it wrill no doubt be a great saving of time and expense to thc parties that the issue should be sent at once: but I hope your Lordship will order all tite money to be brought into Court in the mean time. DMr. HEALD.-Surely vour Lordship wiU not impouid our 6251., about our title to vhich ihere is Bo question. The LORD CHANCELLOr.LI ami iLot certain of that, MFr. eald. AMr. HoRtYE-In what form dt_s jour Lordship think it ought tO go? 1 he LoRIn CHANCE,LORe.-I a.n clearlv of opinion that it rnust go on the question of fraud. Mr. HonwE.-That is, I suppose vour Lordship teneas, on the question of fraud in the transfer of thie half share, admitting the property to nave been originallv in us. The LotnD CHANCELLOR answered in the affirmative, and then observed, that be would frame the issue himself. CHELSEA i;OPSFTa-.. SIR C.. LONG, roe TEst MATTER OF BREOTHErPS AND LEITY. In this CaS a petition was presented on behalf of Sir C. long, an Treasurer of Chelsca Hospital, praying to be admitted to prove a debt of about 9,001., under a 'commission of ba-nkruptcy is. sued against lessrs. Brothers and Leith, and also praying for the remnoval of Alr. Wyatt, the present assignee. 'it eir. cumstances of the case 'were briefly these :-Prie-mot,eY to a considerable amount, arising fromn the taking of Javm and other places, was due to thle soldiers of a regiment in India. Orders trom the men for the receipt of their resitective shares had been giren to the house of Fairlie, Fetguson, and Co., in India, and hael been transmitted to the bankrapts, 'through the house of "' Fairlie, Bonham, and Co." in London. These orders were presented to thai Treasurer of Chelsca Hospital, and the bankrupts received their amountt, beingupwards of I 1,Ol. Of this sunt about ilAR1. mlained in theirl hands at site time of their bankruptcy. The qq,a tion neow was, whether the Treasurer of Chelsea Hos.pital cottld"be allowed to prove as a creditor f6rr thc sum, or 'yhetier l?airlic, Fmu. guson, and ?o. should be so considered; or wbetber thc soldiers should be considered as creditors for the amiount of their respective shares. For Sir C. Long, it was contended 'on a fobrimer day, chat by the 54th of tGeorge Itl., any sum paid on account of soldiers njight after it hath remained a certain time unapplied in the hands of time atgents to whomn it was so paid, be re-claimed bY' the Treasurer of Chelsea liosuita or his deputy; and they were by that a.Lt eunpown Mred to sue for it at law. On tfie part of' WVyatt, the assignee, tis Motion was opiposel < and it was contended, that when the reasurer of Chelsea Hlospital pwid tht sum due to the soldier to his order5 he discharged his trust fully-, and all control on his part ovir the money ceased. if tbe party to whOom it had been psAd li pot given it to the soldier, he alone hal s claim for it, and he alone could be considered a creditor. The Lo,rtD CULA-1CELLOU this ntoring gave it as his opiniokn that acme person Wnust prove unider the commissioni ani the luestion w, viheth er, exdebho jeSiiti,Es Sir C. LoDg alteuld be al- owied to prove. Thiseuld be derided only by an accurate inspec. ion of the act of Parliament. Th7is he would m4ke, and delte; ala further opintionl on Thursday, LAWI REPORT. | COURT OF CHANCERY, SATURDAY, AUG. 7. EX PAIRTE PROSSER. 1l' TIhE MATTEII nP RTC-AO