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1838.

ARMSTRONG

t'. HUDDLE

STON.

to continue with him in this part of the judgment, and think that under the circumstances of this case the costs ought not to have been given against the party setting up the defence, to which I have already referred.

This case in some particulars, with respect to the conduct of the parties, stands in circumstances so peculiar, that though I have seen in former instances examples approaching to it, and somewhat of a nature to make them classable under the same head, yet I do not think I ever saw one of the same, or nearly perhaps of the same description. It is not fair to say that Mrs. Armstrong was bound by every thing that was done by the members of her family. It would not be right to charge that either in commenting upon their conduct, or in deciding as to the result of that conduct upon her interests, whatever there may be which appear exceptionable in the proceedings of her nearest relatives, Mr. and Mrs. Russell, with whom she is connected, and with whom she was in a certain degree, in point of interest, identified and acting in concert. But it is also not fair to the other party,

and we do not think it a correct view of the case, to consider that we ought to separate her entirely from these proceedings of her friends and relatives. All that moved them, moved towards her. All that they were doing they were endeavouring in her behalf; she herself must have been cognizant of all that was doing. She was present at those very remarkable interviews with the apothecaries, Messrs. Perry and Saunders, one of whom used to attend the General every day, the other being merely occasionally in attendance. It is impossible that she could have been ignorant of what was doing. She was in the

1838.

1. HUDDLESTON.

General's room constantly, and the act then perARMSTRONG formed of making the General's Will, she was just as

well aware of as any one else, just as much as the General himself; she hardly ever left his bed-chamber, a most affectionate wife. She was in constant conversation with him upon all subjects, and certainly it must be supposed, without the suppression of this most material subject, constantly with her father and mother, most active parents for the benefit of their child, exerting themselves strenuously, certainly unscrupulously. It is impossible to observe otherwise upon the conduct of Mr. and Mrs. Russell, both the one and the other, than that they were subtle contrivers, strenuous, subtle, and unscrupulous designers, on behalf of their children. Mr. Russell begins by holding communication, of which we have not and cannot easily have the particulars, for a reason presently to be mentioned.

But, after a communication with General Armstrong, he writes a letter to Mr. Cleave, the purpose of which is, to call that gentleman from Hereford to Chester. It was not ill-managed on the part of Mr. Russell, that Mr. Cleave would be a fit person to help to make the General's Will. Accordingly, Mr. Russell writes a letter to the General's agent at Hereford, in which he thinks. proper to state this very remarkable circumstance :-“Mrs. Armstrong wrote you, some time back, to request that you would forward some accounts. The poor General lies still in a deplorable state, with very faint hopes of ultimate recovery. He has expressed a wish to settle his affairs." Where is there any evidence of that? He had expressed no such wish—why? Because he thought it unnecessary-why? Because he thought he had done it

1838.

HUDDLE

STON.

before.— Because he had laboured under the mistake of supposing that it had been all settled, and that ARMSTRONG there was nothing left to be done. Then why did Mr. Russell write that? Having written that letter, to make it appear contrary to the fact and the truth of the case, that the wish to make a Will proceeded from the testator, and that his man of business was by his desire instanter summoned to the General's. And why is not Mr. Russell, the person through whom that wish is expressed, called as a witness in this cause? That question answers itself—because he had written that letter. Whoever read that letter, and expected to see the writer of it in the witness's box, or examined upon interrogatories in the Court below, little knew the practices of any Court, the prudence and circumspection of any counsel, or of any law adviser who has to deal with evidence on the part of his client. Accordingly, Mr. Russell is not called, as it is impossible that he should have been.

But Mrs. Russell appears to have been just as active in her department in this cause as her husband had been in his; and accordingly the medical men are subjected to an examination occasionally by Mrs. Russell, with the same purpose and views for which Mr. Russell had sent for the legal man, and summoned him to the operation which was going on for the common object of benefiting the widow at the expense of her husband's family. That he might be summoned was the object of Mr. Russell's letter, and of his misrepresentation, of the desire to have him come as moving from the General. That the medical man might bear his testimony to the Generals capacity to perform the operation was the object of Mrs. Russell, upon her part accordingly Mrs. Russell lays wait for

1838.

HUDDLE-
STON

the doctors and examines them after they quit the ARMSTRONG sick room of the patient. Is not the General in a

state to make his Will? that is the question ordinarily put. Quite the contrary, was the answer always given. Is not he of sound mind, memory, and understanding, and fit to do this act ? No such thing, he is utterly unfit to do any such thing, requiring judgment, memory, or understanding. Bafiled, but not silenced; defeated in her purpose, but not subdued in her desire, the lady goes first once, and then again to the same, and then to another apothecary, till at length finding that neither will suit the purpose she had in view, neither is called in, and neither is relied upon; but they rest upon other testimony, although these two men were still there, and the appealing to them might seem to betoken a credit given by her to them, and a disposition to be influenced by their award, as it were, upon the question of the General's capacity to be consulted.

Now these two gentlemen are not called as witnesses in this case in support of the testamentary instrument any more than Mr. Russell is called ; and why ? for the reason that Mr. Russell is not called, that they would have injured instead of helping the case, which they were brought to support.

Under all these circumstances, it is the opinion of their Lordships that this was a case perfectly rightly decided below—quite fit to be examined, howevera case upon which no other conclusion could be come to than that at which the learned Judge below arrived, but to which conclusion he could not have arrived, nay more, ought not to have arrived, without thoroughly sifting the whole of this case. To say, then, that this case was not one that required investigation,

1838.

HUDDLE-
STON

that it was all one way, that it was entangled with no difficulties, attended with no doubts, tainted with ARMSTRONG no suspicion, is what the circumstances I have already adverted forbid us to do. There was doubt, there was difficulty, and there was much suspicion; there were doubts of a nature which further inquiry has cleared up; difficulties which much attention enabled him to overcome; suspicion which required a thorough sifting of the facts which did not ultimately leave a taint to touch the case, but quite enough to make it impossible to come to a right decision without that inquiry, sifting, and thorough examination which the case has undergone. We therefore are of opinion that it was right to examine, and to subject the case to investigation, and that therefore, as a necessary conclusion from thence, it should follow that the costs of the investigation should be borne equally between the two parties, and not thrown upon one alone. Adverting to the matter unnecessarily introduced, and the unnecessary issues raised upon that unnecessary matter, we think that the censure passed upon that course of proceeding has been just; and that as a consequence of that censure, it follows that the expense of that should be thrown upon the party who occasioned it.

That portion of the costs so occasioned, therefore, is to be taken out and extracted from the costs to which the judgment of their Lordships refers, and must be borne by, and thrown upon, the present Appellants.

But then the ultimate step to which we come is what shall be done with all the rest of the costs, the whole of the Appellant's costs below, other than those to which we have now applied ourselves ? Now, we think this is a case peculiarly circumstanced in many respects. I have adverted to some very strong fea

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