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SIR CHARLES J. SELWYN. — Sir Charles J. Selwyn, whose appointment as Lord Justice of Appeal in Chancery we have previously chronicled (2 Am. Law Rev. 583), has deceased. He has held the place for little more than a year. He was a man of moderate abilities, but a respectable judge. A strange fatality seems to attend the office of Lord Justice. There are only two of them, but, during the last three years, there have been so many changes that there have been seven occupants of the office. Sir James Knight Bruce, Sir Gorge J. Turner, Lord Cairns, Sir John Rolt, Sir Charles J. Selwyn, Sir William Page Wood (now Lord Hatherley), and Sir George M. Giffard, and there is now a vacancy.
The Atlantic telegraph announces that Lord Westbury is to succeed Sir Charles Selwyn. At the time of the last appointment the place of Lord Justice was offered to Lord Cairns and to Sir Roundell Palmer, but they both declined the position. Vice Chancellor James was the other principal candidate as successor of Sir Charles Selwyn.
THE SHEDDEN CASE. — The Shedden case has come up again, and one more adverse decision against William Shedden, the petitioner, must be added to those already recorded in the history of the case. From our knowledge of the previous facts, we do not dare to say that the decision which has just been given is a final one; though it is at first difficult to see how the matter can be brought up for adjudication again by the same petitioner. William Shedden, however, has a sister, whose rights and wrongs are the same as his, and who has a perfect right to present her case also; but we will hope for the best. The history of the case, though familiar to every professional man in England, may not be so to many of our readers; and we therefore offer them a short résumé of the facts and the recorded decisions. The case has a peculiar interest, from the fact that it is remarkably similar to the well-known “Gaines Will Case," both in its origin and course; repeated attempts being made in each case to establish the legality of a marriage, and enforce the recovery of a large and valuable property, but successfully in the one case, unsuccessfully in the other.
In 1770, William Shedden, a young Scotchman, came to Virginia to make his fortune, with the intention of returning home to spend it. The American Revolution, however, disturbed all his plans; and, being a loyalist, he was obliged to flee to New York, and from that city to Bermuda, to wait till the war was over. He engaged in business there, in which he was successful, and in 1783 returned to New York, to prosecute before the commissioners a claim for compensation for his losses as a British Loyalist. He still intended to return home; but the subsequent war and the French Revolution again prevented it. While waiting to have his claims settled, and apparently only to pass the time, he went into business again, but died soon after, in 1793, leaving behind him the reputation of true philanthropy, of undoubted talent, of great business ability, and of perfect integrity. It was singular that so noted a philanthropist should have so ill conducted in his own household, and that both of his marriages should not have been above
suspicion. His first wife died soon after the birth of a child whose legitimacy is doubted; but that is matter of no importance to us at present, for the controversy, now unsettled, arises from his second marriage, which took place a few years after the death of his first wife. A Scotchman by origin, and a retired officer by profession, named David Wilson, was then living at Fort Washington. His second daughter, a girl of sixteen, Shedden took unto himself, either as wife or mistress. As a proof that it was the former, we know that he introduced her to the best society in New York as his wife, and she was received as such ; and in an ejectment suit in the Supreme Court of New York, in 1855, brought to establish the fact that there was such marriage, a jury held that they were satisfied of its existence. At any rate, two children were born, a daughter Jean, and a son William. On his death-bed, in 1798, Shedden got a clergyman to perform the ceremony of marriage between him and his supposed wife; but this act of his, though somewhat suspicious, by no means proves that there had been no previous civil contract. At the same time, however, a letter was written by Shedden to his nephew, William Patrick, on which the final decision in the House of Lords has turned, and which is either a gross forgery or else strong proof that there had becn no previous ceremony. In it he says, “I have married Miss Ann Wilson, which restores her, and two fine children I have by her, to honor and credit." The House of Lords have sustained its authenticity, though the complainants maintain strongly that it is a complete forgery. In default of issue, Shedden's heir-at-law was the oldest of five sons of his sister, Marion Patrick. Robert Patrick and his brother William were, at the time of Shedden's death, factors and commissioners in charge of their uncle's estate in Scotland. John, the second brother, was with his uncle in New York, and in his will was appointed one of his executors, and William was nominated testamentary guardian of his son. The conduct of these Patricks begins here to be open, wide open, to the gravest suspicions. William Patrick obtained first his appointment as “judicial factor, for the interest of all concerned," from the Court of Session in Scotland. He then, by instituting a process of inquisition, known as a “ retour,” at the County Court of Ayr, and producing formal evidence of witnesses on the spot, and concealing the existence of his uncle's son, got his brother Robert declared the heir and put in possession. Mr. Crawford, a partner of one of the Patricks, was appointed loco tutoris for the young William, and he then instituted proceedings on his behalf in the Court of Session. If Crawford was not in actual collusion with the Patricks, he was culpably careless and neglectful, and the case was decided against him. An appeal was then taken to the House of Lords, to clinch the nail, and of course with the same result. William Patrick then bought out his brother Robert, and the two poor “babes in the wood” were left out in the cold. Young Shedden was sent to school, and then into the navy, where he remained till peace was proclaimed, when he went to India, and soon accumulated there a sufficient fortune. Not till 1848 did he find out the facts of his birth and dispossession. In that year, he instituted proceedings in the Scotch courts, and in 1852 the Court of Session decided against him. He appealed to the House of Lords, but the decision of that house in 1854 was also adverse. In 1857, Earl Grey moved, without success, that his petition should be referred to a select committee. The Legitimacy Declaration Act was passed in 1858; and William Shedden, this time with his daughter, tried his fate again, and in 1860 the case came up for trial before the Divorce and Matrimonial Court. Miss Shedden, from some mistake in regard to the employment of counsel, was called upon by the court to argue the case herself, and did so with wonderful courage, ability, and eloquence. The whole case was thoroughly examined, but it was all in vain; and Sir Cresswell Cresswell, who presided, expressed himself very strongly against the petitioners, in his decision, which was concurred in by the other judges. Rising, Antæus-like, from each successive fall, and with true Scotch pertinacity, William Shedden, in 1861, brought it up again before the Divorce and Matrimonial Court, and demanded a new trial and a jury, but in 1862 the application was denied. A final appeal from this decision has this year been made to the House of Lords; and Miss Shedden conducted her own case once more, her own argument occupying therein twenty-one days, and, like Oliver Twist, she wanted more. The patience of the Lords was at last exhausted, and, notwithstanding the length of the appeal, decided against the petitioners. The daughter of the original William Shedden, Jean Ralston, has just presented a petition on her own account, with what result time will show.
In law, the right of the Patricks to the estate of their uncle may be good; but certainly the conduct of William Patrick towards his cousin was inexcusable. He knew his dying uncle's wishes as to the disposal of the property; he had received favors from him; and was even appointed testamentary guardian of his young cousin. It was like intrusting a young, fat, and tender lamb to the guardianship of an old and hungry wolf. Whether right or wrong, the fact stares us in the face, that, trusted by his dying uncle, and appointed guardian, he used his trust to fill his own pocket and to beggar him whose interests should have been most zealously watched by him.
EX PARTE Wason. — In the American Law Review, vol. 3, p. 586, we gave some account of the suit of Wason v. Walter, which has since been reported, Law Rep. 4 Q. B. 73. It will be remembered that Wason petitioned the House of Lords for the removal of the Lord Chief Baron (Sir Fitzroy Kelly); that on the presentation of the petition, several of the lords, in debate, commented severely on the conduct of the petitioner; that the Times published a report of the debate; that Wason sued the Times for libel; that the jury found for the defendant; and that the Court of Queen's Bench sustained the verdict. Subsequently, the persistent Wason applied to Mr. Tyrwhitt, a magistrate, to receive an information of Wason, and to take his recognizances to prefer an indictment against Earl Russell, Lord Chelmsford, and the Lord Chief Baron for conspiring to prevent the course of justice, and injure Wason by making false statements in the House of Lords. The magistrate refused to receive the information, whereupon Wason applied to the Court of Queen's Bench for a rule calling on the magistrate to show cause for his refusal. The application was refused, on the ground that no indictment would lie for a conspiracy to make false statements in a House of Parliament, and that the magistrate was therefore right in refusing to receive the information. The case is reported 17 W. R. 881.
REMOVAL OF MINISTER. — The tenure of office of religious ministers has been the subject of discussion in the courts of this country oftener than in England, but curious questions sometimes present themselves even there. In Cooper v. Gordon, 17 W. R. 908, the complainants sought to restrain the defendant from acting as minister of a congregation. A resolution had been passed to dismiss him, based on the following eight grounds :
1. That his sermons were too argumentative, containing trains of reasoning which the people could not carry away with them.
2. The sermons were above the level of the great mass of the people, not being sufficiently simple.
3. They were too Arminian in doctrine.
4. They set up too high a standard of Christian life, not taking sufficient account of the influence of trials, &c.
5. There was a deficiency of unction, gospel power, and Christian experience.
6. The motives from which Christians were exhorted to act were not those of Christian love, but of dry, rigid duty.
7. The work of the Spirit was not sufficiently dwelt upon.
The defendant contended that he was entitled to hold his office for life, provided he abstained from heterodox doctrine and from immorality or other gross misconduct; but the court (Sir John Stuart, V.C.) held that, in the absence of special usage or agreement, the dismissal was authorized by the law.
A JUDGE ON JURIES. — The evidence given by Baron Bramwell before the Law Courts (Scotland) Commission as to trial by jury is worth attention. In answer to Mr. Shand's question, “In the majority of cases, do you think that a trial before a jury or before a judge is to be preferred ?" Baron Bramwell answers :
“That is a very large question, indeed. I think if I wanted the truth to be ascertained in the particular case, I should prefer an intelligent man, who had been in the habit of exercising his faculties all his life on such questions, to twelve men who had not been in the habit of exercising theirs, who might not be so intelligent men, who certainly have not been in the habit of exercising them together, - farmers and others, who are very much fatigued from being taken and shut up in a hot court. If I wanted nothing but the truth in a particular case, I should prefer the verdict of the judge; and it seems to me impossible to doubt he is the preferable tribunal. When I was first made a judge myself, I was very strongly in favor of trials being before a judge ; but I am afraid that the jury is a crutch that I have been leaning on for so long a time that I have now got used to it, and I don't think I am as good a judge of the question now as I was thirteen years ago. Moreover, there is no doubt that trial by jury popu. larizes the law. I remember a case before the House of Lords in which I was contending for a particular construction of a covenant, and my brother Willes was contending the other way, and the question put to me was, How was it possible that people should enter into so stringent a covenant as you contend for? I said, 'My Lords, they will trust to that true court of equity, a jury, which, disregarding men's bargains and the law, will decide what is right in spite of all you say to them.' And it is so. I don't say that they do not regard the law, for I believe they do; but every man must feel that, although he may have the law on his side, he is in some peril if the justice of the case is not with him also. I think it would be difficult to discrimi. nate between civil and criminal cases; and in criminal cases I think it is better that the judge should not be the man to find the prisoner guilty. But it is a very large question, and I feel some hesitation in offering an opinion about it."
In answer to a further question, “You have had no cause from your great experience to be dissatisfied with jury trials ? " the learned Baron answers :
“No; there are cases in which juries go wrong: for instance, in an action against a railway company, they generally go wrong there; in actions for discharging a servant, they generally go wrong; in actions by a tradesman against a gentleman in questions whether articles supplied were necessary to an infant or wife, they are sure to go wrong; in actions as to malicious prosecution, they are always wrong. You may say to them, “The question is not whether the man is innocent, but whether there is absence of reasonable cause and malice,' but in vain. They find for the innocent man.”
In answer to Mr. Justice Willes's question, “And cases of running down ? " Baron Bramwell replies, –
“There they generally find for the plaintiff, so much so, that a man who has run down another, if he is wise, will bring the action first. I remember one case particularly, in which the question was whether the man that recovered was free from blame, and there was blame in the other; and each recovered in the action where he was plaintiff.”
This last answer of Baron Bramwell's shows the value of trial by jury, and accounts for the fact that any one whose carriage is smashed by the wilful driving of somebody else's carriage always has to pay a lawyer's bill besides his coachmaker's bill, and generally heavy damages for the privilege of having his life imperilled and his property destroyed. — The Law T'imes, Sept. 4, 1869.
COUNCIL OF LAW REPORTING. - In the Weekly Notes for June 12, 1869, is published the Annual Report for 1868, of the Council of Law Reporting. By this it appears that the receipts for subscriptions during the year amounted to £22,067 10s. 6d., and that this is more than sufficient to answer all necessary requirements, including the payment of £5,346 58. to the staff of editors and reporters.
DOMICILE IN FRANCE. — A judgment of interest to foreign families, of which members have contracted matrimonial alliances in France, has been given in the Civil Court of Paris. The facts of the case were these: M. de Brimont married, about two years ago, a daughter of Mr. and Mrs. Penniman, American subjects. No contract was drawn up, but the parents of the lady promised, verbally, according to M. de Brimont, to make the young couple an annual allowance of 50,000f. as a marriage portion. The young wife died a few months back, leaving an infant daughter, and Mr. Penniman, who, until then, had paid regularly the money, refused to continue it to the son-in-law. The last-named now brought a suit to enforce the continuance of the payment, as alimony for himself and daughter. The parents of the deceased lady, while offering to bring up the child, resisted the demand, on the ground that the plaintiff was a spendthrift; that he had concealed numerous debts when he married, and had since