Court Of Chancery, Friday...
The Times, 1824-01-24T00:00:00

L4W REPORT. AIr. HARtT had obtained an order for the enlargement of time foi paying a certain sum of money into Court to abide the decision upon an injulction issued to restrain the Adnmiralty Court from proceed. imgs instituted in that court for the recovery of the same. He now moved for the further extension of the time to next term upon the affidavit of John tiworthy, the solicitor, alleging that aU possible means has been adopted to find out the oaher party in order to serve the subpmns under the motion for the injunction, but without effect. (This, it will be remembered, is the case.in which the wife claimed recompense for-services tendered bv her while disguised as aseaman on board a merchanit vessel.) Mr. Hart thouglit that it might best serve rhe ends of justic.e if the order w'ere now be extended to 14 days after the other party shall bave entered an appearance. The LORD-CiIANCELLOR thouglht that it would not be quite sate to leave the day so indeterminate, because there might be a possibi- lity in that case of the solicitor neglecting to serve the notice, or. at any rate, of his becoming very careless about it. MIr. HART undertook to assure the Court that his client had been zealous in endeavouring to find the parties to serve the notice, and that he would buonafide do his utmost still to have them discovered. The LoRD-CCIANCELLOT granted the extension of the time till the first lay of next term. IN TUIE rMATTER OF SITG CEoosRY PAnE TutlNEn, A LrINATIC. IUr. HORNE presented a petition on the part of the Iunatic, that the proceedings now going on untler an orcerof the 23d of Decent. her, in th c-Al aster's-ofice, jigh t be stayed until the petitioner shaU haye had time to present a petition to the (:ourt for superseding or traversing the commission; or tbat his solicitor, Mtlr. Binns, might be allowed to institute proceedings to supersede or traverse the comn- mission, without prejudice to the rights of the lunatic himnself so to do. The LonD CUAICELL.OR said, that on the presenting of thepe- tition the othier day, fbr admitting the solicitor of the lunatics to in- tercourse with himt2 he granted an order because he tbought at the tmiie that 5Mr. Collier continued to act as his solicitor, lie ought to have been infonned from the bar, that the solicitor was changed, be. canse he had learned subsequently that persons had gained admit- tance to the lunatic under that erder, whom it was never his inten- tion to have admitted. flit. HonNE assured his Lordship that it was not writh any intent to mislead the Court, either oin his own part or that of AMr. Binn's, who now appeared as solicitor for the lunatic, that the circumstance had not been statel. The fact was, lie had forgotten it as the time he made that motion, hravilng made it very suddenlv in conse. quence of a letter front Sir Gregory, which certainly had the appear- ance of being written by a man of perfectly sound mird. The LORD Cu,lNCELLOR thought that they would have very little chance of superseding the commission, and the introduction of that prayer would cause embarrassment and delay to themselves, whichl they might easily avoid by a short Petition to traverse only. If they took his suggestion, he- might be able to hear it on Monday next; but he could not promise to do so if lle petition prayed nL well to-supersede the, commission. Air. HoaNxi said, they were most willing to close with his Lord. nfh pIs proposaL 'the So a.c TOn-GENERAL presented apetiticn in lie same inat. ter from the mother of the lunatic, and from Anne Page, his sister, that they mJght be allowed severally to go into the MUaster's offlice, and projose themselves as committees. `Jhe petition was orderel to be heard,with the foregoing, on MIon. day necxt, hflOrPED CAUMES. The L oRtD CHANCELLOR said, that he had been iiformed in con- versation this morning, that there were several causes in which de. murrees had been brought, mo0st of them a Ion" time ago, upon which all proceedings had stopped; the parties ha'd el withdrawn and yet they remained in tie paper t'rom year so year, and from age tO age, to the great obloquy of the Coulrt of Chancery. It was ad. visable that the paper should be ridded of those causes, and he would giv e orders-for rjieir omission. AnUANGESSENTS 0' TILE COVRT. The Loun CStANCELLOR expressed his dissatisfaution at the growth of an evil which was of daily increase-the discussions ol counsel upon the mece subject of fixing, altering, and postponing tln causes as they-stood, or as they wished them so stand, for haring. He wished some of the counsel would sit -dowa at the end of tht week and countt up how mlel of the six days was consumed in these arrangements onty. Let it be recollected, that all thi bLtanie of delay,which must be increased by this means, rested chiefl3 upon his. slioulders. 5OLtCTTORSt. AMr. AGAR wished that hi loreship woul(i fix a day fbr hearinp a motion tor striking twosolicitors o the rolls, which Iad befor been menitioned to the Coutlt. The Lcian CiiANc-ELI.or saida, that 'this was a question of souli importance, and therefore he had before intimated that he was un. willing to leave it to the aecision of another Judge. The motion ba( been mnade in ithe other Court, and thte Vuce-Chaiicellor, doubtin~ Ihis authority to strike a solicitor off the rolls of.the Court, had re. fused to grant any ordfrt There was a Petition before him (the Lor Chancellor), howeer, frorna solicitor of the name of Sn,itb, vhicl would bring the whole questioh before hiim in a more perfect. fornr for decisioh. Thiis solicitor had( been struLck of thle roll, o ti Couirt of King's Bench, and'accoiding to the joint practice of all tlin ing's Courts, as be ndow undentuod the rule to be, whenever a so li0itor was sttnlc ofr the rolls of any one coirt, infhomation of tra circumstance wasi communicated to all the otlher courts, and as, matter of course his Pantti was struck fronm -the rolls of thos;e court likewise.- In- this case thte information, had been seiti to this Cour in'the usuaVivav 'and iupon that an applcaionhid been miade. v the Viee.Chanceilor-tos trike the inamepoif athieosolicitor oft the ro'll ul' this Court. !Phe ViceXbTancellor issued en ordeor uccordit,gly but hnviiig sinee foun,d reason to doubt. his own aulthoitsY, had re ScIde i-, n( n);, tissaiesolicitor had presenited, or was abou tofpeta petition, La ie odCanelrtiif rn.b re-srlujng orde ofthe Vice-Chatscellor. Now he! wv serr5',Qn accOintn Of the Parti', that he could do nio suchb thing. Iftbtl invariable rule, to. whichl lie was -informene that thiere wvas not on exception, wvas, thait a solicitor dispiaced from thie roll of tone coot muss be struck(of from the rolls of- all the rest, the rescindiing a his own order by the Vice-Chancellor did tiotbing f-or the petitiGner i't left the ca,se just where it was, and the order for striking hiim ol the rolls nuast issu~e of course upon thie informnation from- the Kine', Bench beting produced to the Court. Mr.; HART, for the petitioner, said that was not the understanid ing, which he had entertaiiied as to what- fell from the Couirt before He 'understoodl his Lordship' to have said that he looked upot this subject to- be of such vital imprtance, -that. he could not trns th4 kpower in aeny oth'er hands thlamnhis owns. - iheLOteD CHsA.NCELLOR said that he bed beeni misunderstood' anjy thing morie than thia-ltail been inferredi from his wvores-that Ii thoitght he ought not to leave it,to Any other judge of. this court t, 'deteietine. whether a sOlicitOr should or should not be ailowed ti pnracticle inwhisl court. Buit that would by 'IO mieans affect thle go- nerat hue whic hiarPpie&tG all the King's Courts togethcr and i 't~at elid hardwas true-that sthis ntile i~as withlout. any exceps MoA, he COUld dlo nothing for thle petitioner, whose proper conrs, uindoubtedly wouldibe, not to ask for the confirmation of an ordlej wvhic lldid.iiot nt-dal affect his case, but to take measures for in. duii the Court of King's Bench td renew their prceedings. An4 if he could prevail upon that Court to rescidthio would be aes,v0,r~,-'A,- ----.I. .-tei grder, ii ltAr. tIART asked if he should be able to find a precedent (which he thought-he couild) of this court having exerdsed its dis- cretionaftersuch-a notice from the Court,of King'N Bench in re- stgring a solcitor wtthvut any reference ro the other court to know if they hadl rescinded their-order would that induce his Lordship to act np6o that precedent, and in a case of extraordinary artdship and disiress,.to restore the petitioner's name to the rolls. The LORru CHIANCELIOR said, that undoubtedly he should-be very gFa-if illr: Hare coeld convince himt by a sufflicieut precndent that he had a right to exercise his discretion-in departing, on extraor- inar occasions from that general rule which ne-had bef6re -men. tione.- Bu heouglit tlat the petitioner-would do best to begin his, application with tlit Court of King'S Benchi. He haid read'ov,er the papers, and it did seem to him 'to be a.case of tluat nature wlich ionld easily ieduice that Cnurt to reconsider their proceedings. M14 lqrt, in ihe mean qime, obtained pernission to seek fok pre- cedepits, anl mienzioln tIiesaieon some-other day. .LMr. HFAr.A , on. lelialf of the two solicifdi. trst mentioneil,.w!io were,persons of the first respectability in H , ll:foped that his Lord- shlk 'tould fix ap- c;rly ds,y ?br the-petitin.- A he LonDCi CAxewrm..oit said that he coul.T do Do. Imore then read Dver the papers as he had done - nad ngree to hearz. the case oni tle -firs,t2ayr[tIerhes.hall ha:ve hierarI thelast-coungi l inithu epetitiori thDnttrfHwadadUibbs' (Liughter)r ~The-Lou C~AJC~~i5Re4resedhis displeasure that the D)u2ke's agents shouldhavewithheldhelansroduced on the Nisi rier trials, to which reference wan contiilua y made hii the papers in he.-cause, until notv that it ws tho evening of the day before that itl wliicha had proseto givejuagMent. retmustnow post- ponethe judgment-till onday, and he gave directions that the So- acitor fo~r the Duke slhould acquaint Ill. Gourley vith tiie post- poneelnent. ' t - IAEfRIS V. -BoDEXtA3r AND THTL.LIPS, DP THE HEREFORD The SOtiCtToT.-GEIrERLL Proposed that the issue oirdered in this case should be framned in these words-" whether -the plaintiff was indebted in any, and if so; in whlat istm of money to the tiefen- damts, Messrs. Boelenham au'd Phillips." AlIr. lIoRNE hoped that tlie Court would not allow them to give the not ce in evidcence, berause ther would by ilat means be en- abled-fQ throw the character of fraud upon the case of Ailr. Harris, ;t7hie they themselves were bound to mcetnnid refuite. -:The SOLICITOR-GENtRAt. could not consent to leave the aotcs out of the evidence, because ihe giving of a note might assist in the evidence of the debt, though hiit clients by no means wished it to be conclusive evidence of the debt. Mr. HORNE said aU that he had feared -in inttiducing the note was, that they woula set up, a.primafoiea.case oF fitadd upon -it, and so the whole issue vould be tainted, and the Verdict, as was very likely to happen in any case, become eetirely useless. The iwL(iRn CHANCELLORS promised them,that if they did set up such aprim7n fad case, he would sesld them to try another case. The note might be introduced, however, and AMr. Home's client might caU upon them to prove the considetration given for it; or it might be ordered itr the issue to be received as proof, but not to con- clude the proofs of debt. Mr. HOR.rE referredi the latter mode, and said that his client was enititled to gavre the' Issue sent to trial with the most cautious directions whichsthe Court bduldgive. The Loitn VdAa-cr:LoIt advised theM to agree upon the form of the issue, and hand it up to him for the direcfhoui. GAERtCE V. E.ARL CAZMDEN. Air. H-4RT appeared for the petitioner, Alrs. Anne Paine. By the will of the celebrated David Garricr, he left ifrs.1'arrick an annuui- ty of l,o001. a year, secured upon 50,0001. in the 3 per cents., with Otherdirectionafor the distributionofallhise 'ects after the deceateof his wife. She died at an advanced age,-and upon a distribution to the nephews, ar.d agreeably to his will, Sir. Baileybecatuethexepresenu tative of the surviving trustee of.Mr. ).. Garrcles. will. The estite was then administered, the debts cleated, and the several por- tions paid of. Mrs. Paine was a Iegatee, tentitle( to receive one of these portions. In the life-time of her husband, she had, fa- his accommodation, incumbered her sbtare with various debts and charges; sttll-she was entitled to her division, subject to rhesedebts, the rights of which she never dispatetd. That share amounted to ahout 4,0221. llr. Bailey had notice of the debtu. The money was left in the hands of the Accountant-tenceal as she supposed, to her credit, subject, in the first instance, to tdi demands of the creditors. .4 petution was ptesented bebore the Vice-C(hancellor, psraying that the ineu tnibrances mighlt be paid oft' and that the residue might be paid tc her. There was then no great armount left; but she was anx- ious to have possession. By orders made before in the cause, the portions of all ihe other residuary legatees had been with- drawn. on -presenting this-petttien in Novenmber last, the answer setup was, that z. ailey had obtained ain order to pay out her portaioi tohitnself. This appeared to be extraordinary, that the trustee shoulda aply to the Court to get an appropriation to hlmself of that which belonged to the cestai quetrust. The Vice- Chlancellor, however, very reasonably concluded that it was out of his power to grant an order for the payument of money which the Accountant-General . had already paid out1 and the petition was dismissed. He now held in his hand an affidavind in which it was sworn that the order for the payment of thernoney was not obtaiied Until two lays at'ter the assertion made before the Vice-Chancellor that, the money had been paid out to Air. Bailev. Upon these groLnds, he moved that the money should be transferred again, so that Alrs. Paine might obtain possession of it, after satisfaction to the claims of her creditors, which he was afraid would not be accomplished without the onerous pIoceeding of a bill in equity, except the Court wvould interfere at this juncture; fot there' seemed to be a spirit somewhere in tltis court to do every thing which could prev ent thedistribution ofthis siate of thepropertv. I 1Mr. Pr.rvs comiplained of the unwonted asperity of Mlr. Hart in making t;is minotion, wlio had mistaken all the facts, and mnust have been uaOst unfa'irly dealt with by the solicitor, in the representations Imiade to him. After the death of the wildow of David (Garriclk the Court directed chat the property should be-tivided among the next of kits accordling to his will. Upon reference to the Mlaster's office, to ascertaits wlio were next of kin, it was fouttd that the property must be dliviletl into thirds-one third of which fell to Peter Garrick, to whom Biclsard Bailey, upoii his demise, became executor; and lug Bailey afterwards became the executor of Ric'ard Bailey, and i conlseqtience stood itI thc situation of execuitor to Peter G3ar- rick. The cause before the Court was in the will and testament of David Garrick, and therefore any thing tveicll Ioncerned'the will of Peter Garrick tmu,tst be quite unconnecte-d with it. In the tmsonth of 11 sy last, an order was obtained from the Micter of the Rolls, -for transferring to the account (if Drr. Hugh Bailey thaL portion which belonged to AMr. Peter Garrick, as his. personal representative. na July another order was obtainedt for the pavtnent of the same monev to .Mr. Hugh Bailev. The will of Mlr. Peter Garrick d&ected a distribution to his next of kin, and the legatees entitled vwere founid to be four in number. One fourth ot the property 'ell to - 1 ra. Paine, not itnder the-will of David Garrick, of which alone this Court at present had cognizance, but-as residuary legatee under the will of Peter Garrick, for a sharp oJ Peter Gamrck's slhare oftltse residdary legricy of David (@arrick. (t cou'rse ino ordter could be made for her tunder the will of David-Gar- rick, which was the only will before the Court. Buti there were obstacles t6 her claim: she had, in the life-time of her husband, engaged her residuary legacy to other persons. It was difficult to say what was due to her. Mir. Bailey iad beets served with nunte. roius aotices fron, her creclitors, and was really at a loss to kiow, con. midering the nature of sonme of tele cngagements, whether the residue which was left to her by the will was tlavable to her or to those tith whom she had become bound. There was one deeLiparticular- in which she had assigned aUlher interest n-the esidttc,.so that 1r. Bailey was left in uncertainty whether thereaidue should be paid- tC her or tlt brother of her Jate husband, Gcorge Paine; to Whons il was assigned. The LOsD CHeAN ELLoR said, h i must lItear the remaiudeKlol the argutnent to-nuorrow, as lie had business- which connpelled htiui to go now. - COURT OF CHANCERY. FRnAYV JArJ 29 cilxATnrv. v - -YT-