Wright v Doe dem. Sandford Tatham
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1837 |
| Date | 13 June 1837 |
| Court | Exchequer |
English Reports Citation: 112 E.R. 488
IN THE EXCHEQUER CHAMBER.
S. C. 2 N. & P. 305; 5 L. J. Ex. 340: in Chancery, 2 Russ. & My. 1. Affirmed in House of Lords, 5 Cl. & F. 670; 4 Bing. N. C. 489; 6 Scott, 58. Referred to, Boyse v. Rossborough, 1853-57, Kay, 106; 3 De G. M. & G. 817; 6 H. L. C. 1; Rossborough v. Boyse, 1853-57, 3 Ir. Ch. R. 489; 6 H. L. C. 41. Discussed, Beere v. Fleming, 1862, 13 Ir. C. L. R. 513. Referred to, Tredegar v. Windus, 1875, L. R. 19 Eq. 613
[313] in the exchequer chamber. (error from the king's bench.) weight against doe dem. sandford tatham. Tuesday, June 13th, 1837. On an issue raising the question whether or not a testator had, during any part of his lile, possessed ordinary powers of understanding, letters were produced in evidence, written at various periods, and sent to the testator by persons acquainted with him, and since deceased, in which the writers addressed him as an intelligent man : Held, by the Court of King's Bench, that such letters were not admissible unless connected in evidence with some act done by the testator. Where improper evidence is received, and a verdict given for the party adducing it, the Court will grant a new trial, although there be other evidence to the same point in favour of the same party ; unless they see clearly that the improper evidence could not have weighed with the jury, or that the verdict, if given the other way, would have been set aside as against evidence : Held, by the Court of K. B. Three letters, produced as above, were found in a cupboard in the testator's private room, after his death, with the seals broken, among other letters, some of which (but not these) had been answered, and some (but not these) indorsed by him. The three letters were as follows: 1. A letter of friendship from T., a relation of the testator abroad. The testator was proved to have sent a letter to T. three years afterwards, alluding to some intermediate correspondence between them, but not to T.'s first letter. 2. A letter from O. M. advising the testator to direct that his attorney should take steps in a transaction with a certain parish. This letter was indorsed, in the hand-writing (b) Yearb. Mich. 17 Ed. 3, f, 59, B, pi. 59. 7 AD. SB. 314. WRIGHT V. DOE 489 of the testator's then attorney, since dead, with the date, and a memorandum that it wag a letter from O. M. to the testator. 3. A letter of gratitude to the testator from E., a clergyman to whom he had formerly given preferment. The testator died in 1826, aged sixty-eight. The three letters were dated respectively 1784, 1786, 1799. Held, in the Exchequer Chamber, by Coltman and Bosanquet Js., and Parke B., that none of these letters were admissible as connected by evidence with any act of the testator. By Gurney B. and Park J. that all three were so admissible. By Tindal C.J. that letter 2 was so admissible; but not letters 1 and 3. By the whole Court, that, unless so connected, the letters were not admissible as either declarations or acts of the writers. [S. C. 2 N. & P. 305; 5 L. J. Ex. 340 : in Chancery, 2 Russ. & My. 1. Affirmed in House of Lords, 5 Cl. & F. 670 ; 4 Bing. N. C. 489 ; 6 Scott, 58. Referred to, Boyse v. Rossbm-ough, 1853-57, Kay, 106; 3 De G. M. & G. 817 ; 6 H. L. C. 1 ; Bossbm-ough v. Boyse, 1853-57, 3 Ir. Ch. R. 489; 6 H. L. C. 41. Discussed, Beere v. Fleming, 1862, 13 Ir. C. L. R. 513. Referred to, Tredegar v. Windus, 1875, L. R. 19 Eq. 613.] Ejectment for the manors of Hornby and Tatham (containing respectively certain lands, which were described), for the rectory, &c., of Hornby, and for other lands and premises, all in the county of Lancaster. The lessor of the plaintiff below claimed as heir at law, the defendant below as devisee, of John Marsden. The material questions were, whether the will had in fact been executed, and whether, assuming the execution to be proved, John Marsden was, at the time, competent, in point of understanding, to make the will. [314] This ejectment was first tried, before Gurney B., at the Lancaster Spring Assizes, 1833 (a), when a verdict was found for the plaintiff below. A bill of exceptions having been tendered, and error brought in the Exchequer Chamber, the Court of Error awarded a venire de novo (b). The cause was again tried, before Gurney B., at the Lancaster Assizes, August 1834. The execution of the will was proved by producing the Nisi Prius record of the trial in 1830, with the postea indorsed, and a short-hand writer's note of the evidence given on that trial by the attesting witness Bleasdale, who was since dead. It appeared that another attesting witness was living, who was not called. The mode of proof was objected to on behalf of the plaintiff. On the question of competency, evidence was given of the testator's habits and state of intellect, from his boyhood to the last years of his life (c). He was born in 1758, and died in 1826. The witnesses for the defendant, whose case was first proved, represented Mr. Maraden to have been a man not of strong mind, but of understanding adequate to the making of a will, having a tenacious [315] memory, enjoying the amusements usual among men of his station in life, keeping up a large acquaintance, and entertaining at his house persons of equal and superior rank to his own, who were pleased with his reception of them, and with his manners, which were courteous and gentlemanly. Evidence was adduced that he wrote numerous letters, and executed many deeds, which were attested by persons of undoubted character; and the defendant's counsel put in several letters written and sent by different persons to Mr. Maraden, addressing him as a man of good understanding. The nature of these will be more fully stated hereafter. The evidence for the plaintiff also ran through the greater part of Mr. Marsden's life. The witnesses represented him as having been, (a) A former trial had taken place on feigned issues raising the same questions. The heir at law, Admiral Tatham (the now lessor of the plaintiff below), filed a bill in Chancery, praying that the will might be declared to have been obtained by fraud and undue influence, and to be void. The Court directed issues of devisavit vel non, which were tried before Park J. at the Spring Assizes, 1830, at York (on account of the prejudice supposed to prevail in Lancashire), and a verdict was found in favour of the will. A new trial was moved for before Sir John Leach M.R., and refused. The like motion was then made before Lord Brougham C., and argued before his Lordship, assisted by Tindal C.J., and Lord Lyndhurst C.B. Judgment was delivered, June llth, 1831, refusing the new trial. Tatham v. Wright, 2 Russ. & Mylne, 1. (i) Wright v. Doe dem. Tatham, 1 A. & E. 3. (c) See the outline of the case on each side on the trial in 1830, given by Tindal C.J. in Tatham v. Wright, 2 Rusa. & Mylne, 19. K. B. xli.-16* 490 WEIGHT V. DOB 7 AD. 6 B. 818. from his boyhood, extremely weak in understanding, and, at seventeen or eighteen years of age, not more intelligent than a child of eight. It was sworn that, after he attained manhood, he was unable to count beyond a very small number, and ignorant of the commonest natural occurrences; that he waa incapable of conducting business, and used to ask childish questions on the most familiar subjects relating to his own property; that he was subject to irrational fears, insomuch that he sought the protection of other persons when passing by a pig or a turkey-cock; that he displayed the tame imbecility in his amusements, had been seen playing in a ridiculous manner in company with an idiot, and used to shew an absurd fondness at the sight of a woman's checked apron. It was also stated that Wright, the defendant in K. B., who had risen from a menial station, and was ultimately Mr. Marsden's steward, exercised an absolute control over him, directed him in his transactions, and kept him in awe when Marsden and he were in the society of other persons. It was [316] suggested, and some evidence was offered to shew, that letters of Marsden had been dictated or corrected by Wright. Many instances were given of the treatment which Marsden received from Wright and from others. It was stated that Wright had been accustomed to treat him with great harshness and disrespect, and had even used personal violence to him; that he had, in Marsden's presence, reproved a servant of Marsden's for asking directions from him; that Marsden was treated as a child by his own menial servants ; that, in his youth, he was called, in the village where he lived, " Silly Jack," and " Silly Marsden," and was never talked to " as a man that was capable of any thing, but as a child ;" that a witness had seen boys shouting after him, " There goes crazy Marsden," and throwing dirt at him, and had persuaded a person passing by to see him home; and that once, when Marsden passed the evening at a gentleman's house, in company with Mr. Ellershaw (the writer of a letter to which reference will be made hereafter), the elder persons of the family sat down to whist, and, Ellershaw mentioning that Marsden was unable to play, some children were sent for, and he was put to play with them at loo, at a side table, a man-servant superintending the game. The defendant's case on this trial, as to the letters received by Marsden and now offered in evidence, and the admissibility of which the plaintiff below contested, was as follows. All of them were from persons since dead. They were found, with many other papers, in a cupboard under a book-case, in the library at Hornby Castle, Mr. Marsden's residence; the room was called his, and used by him. It did not appear when they were placed there, nor how soon they were found after Marsden's death. They had been opened; but it was [317] not proved that any answers had been returned, or the contents of the letters in any way acted upon. Answers, however, had been given to other letters found...
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