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.”* 6 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 try where they are entered into. CHAP. defendant, a usurer in France. For this sum, he and the CLXXII. 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. fore an of the Commons. 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, 6 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. * set aside an improvident settle 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. 401–416. ment un tainted by fraud. CHAP. Castle, in Wales, having been very extravagant in his youth, CLXXII. - when turned of sixty joined in an arrangement with his 1792-1801, son, whereby certain large estates of which he was seized in fee, and others of which he was tenant for life, with remain- 243 CHAP. CLXXII. has fallen into the worst nest of hornets with which this town is infested. The settlement which was made to free him from his difficulties might in some respects have been 1792-1801. more considerately framed; but being free from fraud, I have no control over it. The act of the son in joining to convey the entailed estates to the trustees is consideration enough flowing from him to support it. Each of the parties is rei suæ arbiter et moderator. This Court cannot interfere in this case without making itself arbiter et moderator of the private affairs of all the families of England. There being no extrinsic fraud charged, none appears on the face of the deeds. Mr. Myddleton complains bitterly of being left dependent on his trustees, but it would have been folly in the extreme for him to have taken to himself a certain income. I ask if there ever was an instance in which under similar circumstances a man in this state of debauch, by granting annuities, (for it is like dram-drinking-it irritates, and inflames, and deadens,) was ever left with a certain income? The purpose would be totally defeated. The old habit would return. If there be a secure fund to be pledged, the facility of raising money offers a temptation known to be irresistible. Then it is objected that no provision is made for a third marriage. I suppose that a third marriage was not in the contemplation of any of the parties. It has taken place. I have no right to blame it, but it was not provided for, and I can no more relieve here than in the not uncommon case of a first marriage early in life, and a settlement without any provision for the jointure of a second wife. An unfortunate situation arises if the first wife dies young, but it would be a strange argument that the settlement should be set aside to the prejudice of those entitled under it, because an event has happened which had not been contemplated by the parties. The last objection is, that the remainder is given to the son. It is sufficient for me that I am satisfied Mr. Myddleton understood what he was about; that he was not deceived as to the extent of this settlement. No person cheated him. They were his own attornies, friends, and trustees who had the preparation of every thing; and when I find |