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1838.

V. HUDDLE

STON.

ford; he had become thus his confidential man of ARMSTRONG business. He had, however, ceased to be his confi

dential man of business, from the General's changing his residence, when, after the death of his first wife, he left Hereford and removed to Cheshunt Park, and it was only by his being sent for by Mr. Russell, the father of the principal legatee, to come and act, for the express purpose of assisting and presiding over the execution of his former client's Will, that Mr. Cleave was called upon to take any part whatever, with reference to the Will.

Being sent for, Mr. Cleave hastened to town, and went to General Armstrong's residence at Cheshunt Park, where he then lived, and where he had been struck with disease, from which he had scarcely recovered physically, though it appears that eventually that he had the entire restoration of his faculties. He

appears to have had much conversation with the General both before and at the period of executing the testamentary paper. This was the connexion of Mr. Cleave with the alleged conspiracy; this was his part in the matter; this was his sole interest in the affair. He benefited not to the extent of one penny by the Will. He had no connexion whatever with Mrs. Armstrong ; he had no interest whatever in the course which the testamentary dispositions of General Armstrong should take. He had no kind of interest or concern, direct or indirect, remote or immediate, in the course which the General should adopt in arranging his affairs.

Now in this state of circumstances, what are we called upon to believe? Why, a tale which consists in charging that gentleman with having, for no conceivable purpose, or without the shadow of an interest,

1838.

HUDDLE

STON.

in a matter to which he was really a stranger, made himself, not merely a party, but a principal in one of Armstrong the worst conspiracies by which an attempt was ever yet made, to surround a transaction with fraud, and afterwards to support the purposes of that fraud by foul and gross perjury, at the dying bed of a person who had a large property to bestow upon his surviving connexions. We are called upon still further to believe that Mr. Cleave, having thus gratuitously made himself a party to so fraudulent a transaction, continued in the perpetration of this crime, and supported it by perjury, if possible, more foul than the first conspiracy, to which, without an assignable motive, he had made himself a party.

It is a great mistake to say, as was contended ingeniously, that it was illogical and unsafe to disbelieve a case of fraud or guilt of any other kind, upon the ground that the party charged with it has no apparent interest in his crime; no doubt it is not a sufficient argument for refusing evidence which is tendered of guilt, that the party alleged to be guilty has no interest in committing the offence. That would be one of the most dangerous, as well as illogical doctrines, that could have possibly been admitted to govern the judgment of a court of law. If testimony is introduced which is clearly liable to no suspicion, which stands unrebutted, which charges a person with an offence, it is no argument against believing that testimony to say, What interest had the party charged in committing such an offence? He is a stranger, he is unconnected, he is disinterested, he would ruin his character, and even prejudice his more lasting interest by committing such an offence without a motive. That is no argument against believing the testimony,

1838.

V.

HUDDLE-
STON.

or for rejecting the case, and refusing a decision acARMSTRONG cording to the case made out.

Why? because in the case put, and which is supposed, but is here wholly wanting, namely, a case proved by evidence, to which there is no objection, and unrebutted by opposite testimony. If there had been such a case here, if Mr. Cleave had been shown to have perjured himself, if his testimony had been contradicted in essential particulars, if his evidence had been shaken upon his cross-examination, or if that testimony had been met by contradictory evidence, and the balance was clearly turned against him, it would be no answer to a case so made out to say, Here is a man injuring his character, perjuring himself, guilty of conspiracy without a motive. Why? because the case would have been made out, and he would have been proved to have done so. But not

you

have no such argument, where that evidence is even doubtful, even where the scales hang even, and the balance is somewhat trimmed on both sides, then it becomes not only safe, but it is the duty of the Court before whom such a case, upon such conflicting testimony, is brought, to throw into the scale upon the party's behalf that consideration without which it will make the other side preponderate. That therefore appears to their Lordships a very prevailing feature in this case, which is not easily to be got over. But the case brought here is not even ; and where the scales hang even, there is no balance whatever. The evidence is almost all one way.

It has been said, but not accurately in point of fact, that Mr. Cleave did not take the proper means for satisfying himself with respect to the capacity of his client; that he did not apply a test; that he had not

so where

1838.

HUDDLE-
STON.

proved his capacity at the time he prepared the testamentary instrument. But it appears from the evi- ARMSTRONG dence, and especially from his own testimony, that abundance of tests were either applied by him, or if not applied, were rendered unnecessary by sufficient evidence being introduced, as it were, voluntarily on the part of General Armstrong himself of his capacity to do the act. He spoke of another

He spoke of another paper which had been destroyed, or “done away with,” as his expression is. The offer being made to make a Will, he accepts the offer, and said, as Mr. Cleave expressly swears,

“As I knew so much of his affairs he would rather I should do it than any other person." He spoke of a legacy of 500 1. to his brother; he talked in the most affectionate terms of his wife; stated that what he wished was, that she should have all; and that was the very scope and frame of the instrument. Then how can it be said that there was no test of his capacity applied ? He had read over to him the draft which had been prepared from his instructions, which he assented to, his mind knowing at the time what it was about, and willing to do it when the witness read it over to him, which he did slowly and very distinctly. Now, was the General passive at the time? That is always the question in such cases, whether the mind of the testator was actively exerted, so as to show that he was cognizant of what he was doing. He was not so. “He interrupted me,” says the witness, “he stopped me in the course of the reading, and said I had not mentioned his share in the iron works." It is evident he was attending to the Will, and knew what he was doing; but had his mind moved to attend to the state of his property, that the omission of the iron works struck him, and called for

1838.

HUDDLE-
STON.

his interruption. I mention these rather by way of ARMSTRONG specimens and samples, than at all with the intention to go through and exhaust the facts of the

case,

because the general remarks I have made seem sufficient to dispense with that.

It must be observed, too, that Captain Warner, who is one of the attesting witnesses, and has been subjected to a rigid cross-examination, takes nothing by this; he is as disinterested and unconcerned, with the exception of his relationship by marriage, not very near, with Mrs. Armstrong. He takes no benefit, and yet he makes himself a witness; he has conversations with the testator, and he is satisfied of his capacity;

and the only thing that has been urged to cast any doubt upon the testimony of Captain Warner, is that the date in the margins of the Will was one day earlier than it should have been, a thing most clearly and satisfactorily accounted for, by observing that he took down that date in his table from seeing the date which, by mistake, had been put in the margin of the paper, respecting which his memorandum was made.

Upon the whole, therefore, we entertain no doubt that this case has failed, as regards the fraud, and conspiracy, and perjury attempted to be charged against these parties, and that the Court below came to a right conclusion for pronouncing for the Will.

But besides this, the Court went a step further, and directed the whole of the costs to be paid by the party failing in that defence. Having willingly accompanied the learned Judge below in the former part of his judgment, and in almost all the essential particulars gone along with him in the reasons stated as the grounds of that judgment, their Lordships are unable

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