Batut's claim, and that such evidence might be procured either by sending over a commission to Paris, for the examination of witnesses, or by bringing interrogatories into the master's office for the personal examination of Madame de la Batut and her husband. We now know so much of the case that Madame de la Batut would hardly venture to deny any of the necessary facts; but this is not quite certain. We think that the expense of a commission to examine witnesses would not exceed £150. The expense cf interrogatories for the examination of Madame de la Batut would be trifling; probably thirty or forty pounds. Assuming that the requisite evidence were obtained, we are inclined to think that, notwithstanding Madame de la Batut's resistance, the suit might be wound up before the rising of the court for the long vacation; but, after the observations we have thought it our duty to make in the early part of this letter, you will be able to judge how far this opinion can be relied on. You will bear in mind that the decision of the master is not final. Exceptions may be taken to his report, and argued before the court; and even an appeal may be brought against the decision of the vice-chancellor, or master of the rolls, and the cause might be taken to the House of Lords. The delay under such circumstances would be very great. We are your very faithful and obedient servants, RICHARD RUSH, Esq. CLARKE, FYNMORE & FLADGATE. Richard Rush to Clarke, Fynmore & Fladgate. February 9, 1838. GENTLEMEN: Your communication of yesterday's date was received, and is satisfactory by its fullness and candor. Under its representations, I determine not to seek further evidence, by a commission to Paris or otherwise, for the purpose of further reducing the claim of Madame de la Batut. Let the master's report in this respect be, therefore, made in the state I understood it to have been settled by him; and, now that I take this determination, I trust that it will be made at a very early day. I need scarcely reiterate to you my most earnest wishes for a speedy decision of the case, or my instructions that you will urge it on with all the expedition in your power. In the hope that the decision will be in all things favorable, as well as speedy, I remain your faithful and obedient servant, RICHARD RUSH. To Messrs. CLARKE, FYNMORE & FLADGATE. Richard Rush to John Forsyth. LONDON, February 12, 1838. SIR: The day after my last number was sent off, I received information from the solicitors that some of the evidence expected from France had arrived, but that it was not of validity to repel the claim of Madame de la Batut. From as much, however, as it disclosed, they pronounced a strong opinion that if a formal commission issued from the court, evidence might finally be had that would defeat it. On fully weighing what they said, I wrote them a note. on the 3d instant, requesting answers to the following inquiries: 1. What would be the probable expense of a commission? 2. How much time would be required for its execution. and return? 3. Supposing the evidence obtained under it to be sufficient in their opinion, our counsel's, and my own, to defeat the claim; yet, as the legal advisers of Madame de la Batut might not take the same view of it, and thence contest it, what further delays might such a turn in the case become the means of producing? (I enclose a copy of my note.) I received an answer from them dated the 8th, a copy of which is also enclosed. Referring specifically to my inquiries, it will be seen— 1. That they estimate the expense of a commission at one hundred and fifty pounds. 2. That they think it might be executed and returned within three months. 3. That, assuming the requisite evidence to be obtained, they incline to think the suit might be wound up before the rising of the court for the long vacation, (which means in August next;) but after the introductory observations of their note, which advert to the uncertainty of all previous calculations as to the duration of suits in chancery, they leave me to judge how far this opinion of theirs is to be relied upon; and they conclude with an intimation that the case might, in the end, be taken before the House of Lords on appeal; in which event the delay, they add, would be "very great." I have determined, under these circumstances, not to seek further evidence by a commission to France or otherwise for defeating the claim, and accordingly wrote to them, on the 9th instant, to proceed with all expedition in bringing the suit to a close without it. A copy of this note is also enclosed. As to bringing interrogatories into the master's office for the personal examination of Madame de la Batut and her husband, as adverted to in the answer from the solicitors, I say nothing of the objections to that mode of getting at more evidence, the solicitors themselves forestalling me by an admission that they could not be certain of its success. I hope that the determination to which I have come will be approved as judicious. This claim has been already, by full scrutiny and resistance, greatly cut down from its original injustice and extravagance, as a reference to my No. 12, of the 24th of last June, will show. That it might be wholly defeated by going on to pursue measures within our power, I incline to believe. The solicitors tell me that they think so decidedly, and their letter is to the same effect. But it is now necessary to balance the advantage to be gained by doing so against the time and money it would cost. The report in favor of the claimant, as the master has determined to make it in the state of the evidence as now before him, will not, by the information I have received and heretofore communicated, be likely to exceed one hundred and fifty pounds a year, payable during her life; to which will have to be added a few years of arrears, calculated on the basis of whatever may be the precise amount of the annuity allowed. The claimant, as far as I can learn, is about sixty years old. Hence, supposing that measures necessary for the total defeat of her claim occupied only another twelvemonth, it seems probable that the very cost of the agency for going on with them, added to all unforeseen legal fees and expenses, might prove more than the annuity is worth. That the suit would be lengthened out another twelvemonth by going into the measures in question, can scarcely, I think be deemed a strained inference, from all that the solicitors say in their letter, not to dwell upon contingencies coming within its scope that might make the time longer. Should the suit reach the House of Lords, for example, by appeal, it would not be easy to assign a limit to its duration. I trust, therefore, it will be thought that I exercise a proper discretion, as representing the interests of the United States, in determining not to expose myself to any of these hazards, and new ones that might even chance to spring out of them as time was opened for their operation. It seems to me, conclusively, that I should henceforth rather strive to obtain a decision of their suit as speedily as possible, regardless of the small and temporary diminution of the fund, should it be finally adjudged in their favor, which the foregoing payments to Madame de la Batut would occasion. Opposition has been effectively made to the claim up to the point, it is believed, that duty enjoined and prudence would sanction; to go farther seems not reconcilable with the latter, under the certain and contingent delays and dangers I set forth. The occasion may be a fit one for remarking, that when this claim first assumed a vexatious aspect last summer, my immediate wish and suggestions were to get a decree in favor of the United States for the general fund, leaving such fractional portion of it sub judice as would have been sufficient to satisfy the claim if established; thus cutting short delay from this source, by which this agency might have had the chance to be closed the sooner, and the bulk of the fund secured to the United States at the earliest possible day. The last I hold an object of pressing importance, encompassed, as all law suits more or less are, (to say nothing of the peculiar nature of this,) by hidden risks. But it was part of the vexation of the claim that our legal advisers found the course I desired to pursue impracticable, for the reason mentioned in the letter of the solicitors of the 22d of July, a copy of which was forwarded with my No. 15 on the 19th of August. Now that this obstruction is removed from my path by the determination I have taken in regard to it, I indulge the hope that no new one will be thrown across it; and can only repeat the assurance, that nothing within my power shall be left undone towards accelerating the suit, anxiously desiring, on all public and personal accounts, (if I may speak in the latter sense,) to see it terminated. In the continued hope that the decision, when it comes, may be favorable, I have the honor to remain, with great respect, your obedient servant, RICHARD RUSH. The Hon. JOHN FORSYTH, Secretary of State. S. Pleasanton to John Forsyth. TREASURY DEPARTMENT, FIFTH AUDITOR'S OFFICE, March 14, 1838. SIR: In reply to your letter of this morning, I have the honor to inform you that the amount of the appropriation made by the act of Congress of July 1, 1836, for the expenses of prosecuting the claim of the United States to the Smithsonian legacy, was remitted to their bankers in London, on the 16th of the same month-$10,000. Of which sum the said bankers have paid to the order of Richard Rush, the agent appointed under that act, from 1st August, 1836, to 31st December, 1837 Applied as follows, viz: Agent's salary for one year, ending 31st July, 1837-- $3,000 00 same period... Paid Clarke, Fynmore & Fladgate, solicitors, at London, for various professional services in relation to the legacy 2,000 00 889 77 Credited to Mr. Rush on accounts rendered by him-- $5,889 77 Leaving a balance, to be accounted for by him, of.. $8,493 11 2,500 00 8,389 77 $103 34 The balance remaining unexpended by the bankers, of the appropriation in question, on the 31st of December last, was, as will be perceived from the above statement, $1,506100 89 I have the honor to be, very respectfully, sir, your obedient servant, Hon. JOHN FORSYTH, Secretary of State. S. PLEASONTON. |