CLXXII. 1799-1801. fied to compare him with his predecessors, "His judicial CHAP. oratory was exquisite. The greatest detractors from his merit acknowledged the perspicuity, the luminous order, and chaste elegance of his arguments. Like Lord Camden, he frequently and successfully introduced law phrases into them." Yet the panegyrist is obliged to acknowledge that he betrayed "a want of real taste for legal learning." The lenient view taken of him while in office by contemporary lawyers was partly to be accounted for by their pride in having at their head a gentleman and a scholar—a man "wholly above any sordid feelings of avarice or parsimony, and only valuing his high station for the power which it conferred, and the dignity with which it was compassed round about." But when we come calmly to review his judg- His judg ments, we cannot much commend them, and we are astonished to find with what a small modicum of juridical acquirement a man may reputably fill the most exalted judicial office. They are recorded in the 2d, 3d, 4th, and 5th volumes of Vesey, junior.† Going through them with a view to select some of importance and interest, I am a good deal disappointed,—although my expectations were not very high. Considering that Lord Loughborough presided in the Court of Chancery above eight years, it is wonderful how little he added to our equitable code. By far the best judgments given in the Court of Chancery during this period were by Pepper Arden, Master of the Rolls, afterwards Lord Alvanley. ments. Yet a few cases decided by our Chancellor may be stated On inteswith the hope of instructing or amusing the reader. In tacy, personal proGraham v. Johnstone, in which he held that the personal perty to be property of an intestate wheresoever situate must be dis- distributed Lord Brougham's Sketches, i. 85. He was unlucky in his reporter. I knew this gentleman well. When near eighty, he was still called " VESEY, junior," to distinguish him from his father," Vesey, senior," the historiographer of Lord Hardwicke. He was a very good-natured fellow, and very honest and painstaking, but very dull. He wrote his notes in shorthand, which never will produce good reporting. He has succeeded much better with Sir William Grant, whose judgments, when delivered, were perfect in thought and expression; but he was quite unequal to the task of abridging, arranging, and giving the spirit of any discourse which he heard. CLXXII. 1793-1801. according to the law CHAP. tributed according to the law of the country in which he was domiciled, his acquaintance with the civil law enabled him to deliver an able dissertation on the law of domicil. The suit arose out of a disputed claim to certain personal property in Scotland which had belonged to the last Marquess of Annandale, who had long been a lunatic. Lord Loughborough. "First I must look to see what was his domicil when he became lunatic, for it could not be changed afterwards by any change of residence. Though of Scottish origin, of the domicil of the intestate. Interference of equity to compel the delivery of specific chattels. according to the will of his maternal grandfather, his expectations of fortune, settlement, and establishment were in England, and here he chiefly passed his days. He visited Scotland, but without any purpose of remaining there. Having once gained a domicil in England, there it must remain till it changed by the execution of a purpose permanently to abide elsewhere. The actual place where a man is, prima facie, is his domicil; but his home may be shown. to be elsewhere. You encounter the presumption by showing that the residence is involuntary or transitory. In this case every thing tends to the conclusion, that the place where Lord Annandale was found was the place in which he had resolved to spend the remainder of his life. If the point were new and open, it appeared to me to be susceptible of a great deal of argument, whether in the case of a person dying intestate having personal property in different places and subject to different laws, the law of each place should not obtain in the distribution of the property situate there. Many foreign writers have held the affirmative, and there was a time when the Courts of Scotland concurred in that opinion; but now I am obliged to consider that personal property has no locality except the domicil of the owner.* In Fells v. Read†, Lord Loughborough confirmed the doctrine, that where a man wrongfully withholds the possession of a chattel, the value of which cannot be estimated and compensated by payment of damages, equity will compel him to 3 Vesey, jun. 200. See Somerville v. Somerville, 5 Vesey, jun. 749., in which the law upon this most important subject was finally settled by the admirable judgment of Sir Pepper Arden. † 3 Vesey, 70. deliver it up specifically. A club had subsisted from very ancient times, called, "The Past Overseers of St. Margaret's, Westminster," consisting of persons who had served the office of overseer of the poor of that parish. They had a silver tobacco-box, inclosed in two silver cases, all which were adorned with engravings of public transactions and heads of distinguished persons. The box and the cases were always kept by the senior overseer for the time being, who, on coming into office, received them with a charge to produce them at all meetings of the club, and to deliver them up on going out of office to his successor. The defendant, who had so received them, refused to deliver them up, unless certain illegal items in his accounts were allowed by the vestry. — Lord Loughborough. "I always regret when I see litigation and expense occasioned by peevishness and obstinacy. But this cause being here, I must decide it upon established principles. A pecuniary estimate cannot be put upon this box with its cases, and therefore the remedy of the rightful owners shall not be confined to an action of trover or detinue. The Pusey horn' and the 'patera' of the Duke of Somerset were decreed to be delivered up; a jury might not have given twopence beyond their weight as bullion. We cannot refer the owners of such curiosities, to which they are affectionately attached, and which might fetch a great price at an antiquarian's sale, to the estimate of farmers and mechanics. In some such cases, no damages would be a compensation, and the jurisprudence of the country would be strangely defective, if the spoliator might, by sacrificing a sum of money, set the rightful owner at defiance. This case calls peculiarly for the interposition of a Court of Equity, as the defendant received the box and cases on condition that he would return them at the end of the year, and he is a trustee for the club."* CHAP. CLXXII. 1793-1801. forced ac. Lord Loughborough showed a mind well imbued with ju- Contracts ridical principle in deciding the case of Compte de Perigord to be env. Boulanger. The famous prince Talleyrand, when the cording to profligate Bishop of Autun, borrowed 70,000 livres from the the law of * See the authorities collected 3 Vesey, jun. 73. n. the coun CLXXII. try where they are entered into. CHAP. defendant, a usurer in France. For this sum, he and the plaintiff, as his surety, became bound by an obligation, which, 1793-1801. according to the French law, did not subject them to arrest either on mesne process or in execution. At the breaking out of the French revolution, both the plaintiff and the defendant emigrated to this country; afterwards, the plaintiff, being about to sail on an expedition to the coast of Brittany, was arrested by the defendant for this debt, and, to procure his release, paid him 1007. in cash, gave him two bills of exchange for 1007. each, at two and four months, and executed a bond for the remainder of the debt, payable at the end of six months after a peace should be concluded between England and France with interest in the mean time. The plaintiff paid the first bill of exchange, but refusing to make any further payments, and being again arrested, filed this bill for an injunction, and to set aside the securities. Lord Loughborough. "I think the proceeding on the part of the defendant has been extremely oppressive and immoral. I am not prepared to say how far the Court will finally grant redress, but I will not allow the defendant to avail himself of an advantage got by duress, which is the sole cause of the new engagement. If it stood upon the original obligation, it would be contrary to all the rules which guide the Courts of one country in deciding on contracts made in another, to give a greater effect to this contract than it would have by the law of the country where it was made. It is against all conscience, that these parties being driven to our shores by a common calamity, the one should be permitted to take advantage of that calamity and to immure the other in a gaol." The injunction was continued.* A Peer to answer a The only case of a political aspect which came before not obliged Lord Loughborough was Wallis and Troward v. Duke of bill of dis- Portland.† George Tierney, in 1789, before the split in the to ascertain Whig party, had been started as a candidate for Colchester, under the auspices of the Duke of Portland, and being beaten at the poll, presented a petition complaining of a false covery filed whether he retained a solicitor CLXXII. return. The bill alleged that Mr. Tierney employed the CHAP. plaintiffs on behalf of the Duke to conduct the petition before the election committee; that they did so, disbursing between. 1792-1801. three and four thousand pounds; that neither Mr. Tierney nor to conduct the Duke would pay them, and that they had no legal evi- a case bedence against the Duke; they therefore prayed a discovery election against him, and particularly that he should answer, whether committee he had not authorised Mr. Tierney to retain them? There House of was a demurrer to the bill, on the ground that the transaction relied upon was illegal. Lord Loughborough. "The case disclosed is of this nature: an undertaking supposed to have been entered into between the plaintiffs and the defendant stipulated that he would defray the expense of a petition against the return of a member of parliament. This is an agreement between two parties to the oppression of a third; in short, it is 'maintenance.' 'Maintenance' is not confined to suits at law, and although there are statutes inflicting penalties for particular sorts of maintenance,' it is laid down as a fundamental rule that maintenance' is malum in se not merely malum prohibitum. Strangers are forbidden to aid the prosecution of suits in which they have no interest, — that justice may be equally administered to all. To speak to a counsel or an attorney for the purpose of encouraging a suit in which the speaker has no interest, has been adjudged 'maintenance.' I do not go into the argument which was very properly urged in support of the demurrer upon considerations of public policy, as I think that the discovery would be of a specific offence, well known to the law. I am therefore of opinion that a Court of Equity ought not to permit the suit to proceed farther." Upon appeal to the House of Lords, the order allowing the demurrer was affirmed, without hearing the counsel for the respondent. * fore an of the Commons. set aside an improvi The case with which Lord Loughborough seems to have Refusal to taken most pains, as it attracted a great deal of public attention, was Myddleton v. Lord Kenyon. † The plaintiff, the representative of the ancient family of the Myddletons of Chirk 3 Vesey, jun. 503. n. †The judgment extends over fifteen pages of Vesey, jun. vol. ii. 401–116. VOL. VI. R dent settletainted by ment un fraud. |