The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-11-26 00:00:00

REARM& V. STOWELL

- Lord Denman, however, intimated that they inclined to
the opinion that the paper complained of contained no di-
rect charge against Mr. Hearne at all.

COURT OF CHANCERY--TUESDAY

BLUNDELL V. GLADSTONE.
This was an appeal from the Vice-Chancellor, and also a
re-hearing of the cause. The bill was filed by Thomas, the
second son of Joseph Weld, of Lulworth Castle, in Dorset-
shire, for a declaration that he was entitled, under the will
of the late Charles Robert Blundell, of Lace Blundell, to
take the devised estates in preference to Edward Joseph
Weld, his brother, and the eldest son of Joseph Weld. The
question of the competency of the testator to make a will
has been tried; and, on a verdict in favour of the will being
obtained, the Vice-Chancellor made a decree in favour of the
plaintiff, his honour entertaining no doubt that the testator
meant to give the estates to Thomas, although he had used
the name of Edward, and conceiving himself justified under
the authority of " Miller v. Travers," 8 Bingham, in giving
such an interpretation to the intentions of the testator,
although there was an apparent inconsistency. His honour
was, however, of opinion, that the words " second son'
made the matter quite clear, and that the word " Edward"
was merely a slip, the intention of the testator being to give
the estates to Thomas, the second son, and the brother of
Edward. The will was very short, and dated in November,
1834. In substance the testator left his estates in trust for
the second son of Edward Weld, of Lulworth, for life, with
remainder to his sons in tail male, and failing them, with
remainder to the first and every other son of each brother,
except an eldest brother of Edward Weld, with remainder
to the second and every other son, except the eldest son of
Lady Stourton, the sister of Edward Weld, and with other
remainders, on condition that the persons entitled in posses-
sion should reside at Ince Hall, and take the name of Blun-
dell. The testator died in 1837, at which time Mr. Joseph
Weld was living at Lulworth, having obtained a life-interest
in the estate by a settlement from Mr. Thomas Weld, the
cardinal, that settlement being made in 1829, when the car-
dinal became a priest. In this state of the cause a claim is
raised by the heir-at-law of Mr. Blundell to take the estates,
on the ground that the will is void from uncertainty of
description of the person to take.
The Solicitor-General, Mr. Richards, Mr. Fleming, and
Mr. Parry appeared in support of this claim, and contended
that as a part of the description of the testator would apply
to Edward Joseph Weld, the eldest son, and a part to Tho-
mas, the second son, the court could not recognise the in-
consistency, and pronounce in favour of either. It was a
clear established rule of the court, that evidence could not
be given to show the intention of the testator ; that was to
be collected from the language of the will. The only evidence
that could be given was to prove who was the person desig-
nated, and no evidence of that kind could be offered in the
present case, which would not partly apply to both the sons
of Joseph Weld, for they had it established beyond question
that Edward Joseph Weld, the eldest son of Joseph, was
known to the testator by the name of Edward, and that, al-
though christened Edward Joseph, he always passed under
the name of Edward, and in all but very formal legal docu-
ments signed himself Edward. It never was attempted in a
court of equity or of common law to help the construction of
a will by any other evidence than the description of the per-
son who was to take. In the case of " Beaumont v. Fell,"
which was recognised as the best and highest authority on
the question, that doctrine was expressly maintained, and it
was remarkable that in the judgment in that case considera-
ble doubt was expressed of the propriety of the decision in
" Miller v. Travers," on which the Vice-Chancellor mainly
relied, when he decided in favour of the plaintiff. The same
doctrine was held in ",Hishcock v. Hishcock," in Holmes
Custance," 12 Vesey, where it was declared that no con-
jecture could be allowed, and in " Hampshire v. Pearse," 2
Vesey, sen. The learned counsel also cited " Doe dern of
Ashford v. Bower, 3 Barn. and Adol., and Mr. Wigram's
work on wills, and maintained that from all these cases, it
was clear that the court could not for Edward read Thomas,
nor for the second son of Joseph Weld, read Edward. Under
these circumstances the bequest was void, and the heir-at-law
must succeed. They concluded by putting in, as evidence
rejected by the Vice-Chancellor, two former wills of the tes-
tator, dated in 1821 and 1824, by which they proved that the
testator knew well the name of Joseph Weld's sons.
At four o'clock the argument was postponed till the next
day.

The arguments in tVihi'sEotDos o.NedwE2AreYso.mod.
Mr. Tinney appeared to-day the plaintiff, and stated,
that his client claimed under description of the second
son of Edward Weld, of Lulworth, Esq., on the ground that
the testator had made a palpaTteanstake in calling his father
property
ertvias not a very diffi-
Edward instead of Joseph.
dispute had been
cult one, and probably, if the
XlO,OOO a-year,
very small, instead of amounting as it diyd in
the Court would not have been troubled'atto e
same length.
That the testator really meant the plaintiff was ob
vious , for
Edward Weld, second son of Edward Weld! of Lulworth,
was the person in reference to whom all the strict limitations
in this will had been created. The question was urely one
of construction, and there being no Edward Weld,
the elder brother of the plaintiff, who was carefully excluded
it it was plain who was meant. It was quite clear that the tes:
tator intended to establish a second family, beginning With
the second son of the present possessor of Lulworth as a
prcepositus. This was an ambiguity which the Court would
permit the admission of extrinsic evidence for the purpose of
removing. 2 Moo., 304 ; 2 Yo. and Golly., 72.
Mr. Tinney having concluded his address, a long discussion
took place as to the admission of evidence to prove that the
testator in 1836 had made inquiries of Mr. Gladstone re-
specting the family at Lulworth, and that he had declared he
had never seen the second son of Edward Weld.
Sir W. Follett objeeted to this, inasmuch as it referred to
a period subsequent to the date of the will.
The Lord Chancellor reserved his judgment, and at his
rising adjourned the further hearing until the sittings after
term.

The Queen, in her capacity of guardian of the Duke of
Cornwall, has been pleased to nominate Thomas Pemberton,
Esq., of the chancery bar, Attorney-General of the Duchy.

This was an action of libel, brought by the senior priest of
St. Patrick's, lioman Catholic Chapel, at Manchester,
against the defendant, who is a clergyman of the Established
Church. The case came on for trial at the Liverpool assi-
zes, and a verdict was returned for the plaintiff, damages,
40s. The publication complained of was in the form of a
written statement which Mr. Stowell read at a meeting which
was convened for the purpose of petitioning the legislature not
to renew the grant to Maynooth College. The paper con-
tained a short narrative, in which it was represented that a
policeman seeing a man of the name of O'Hara going upon
his hands and knees upon the public road, asked him the
object of such a proceeding. O'Hara, who was a Catholic,
answered that he was doing penance for his sins. The po-
liceman asked if he could not atone for his sins in any other
way, to which O'Hara answered that he could not, and that
his priest, whom he stated to be Mr. Hearne, would not give
him the sacrament unless he had performed the penance ;
that he had done the penance four days already, and when
he should have done it nine days more he should go to Mr.
Hearne and ask him for the sacrament. The declaration
having set out this passage, alleged that the statement was
published for the purpose of bringing the plaintiff into dis-
credit, and to diminish the respect which he already enjoyed,
and of vexing, harrassing, and oppressing him in his cha-
racter as a Catholic priest, and lowering him in the estima-
tion of society atlarge, and of his own friends, and of
impeding him in the performance of his duty as a Catholic
priest. At the trial, a priest named Wood, and Dr. Mur-
doch, the Catholic Bishop of Glasgow, deposed that no
private priest had the power to impose such penances as a
necessary preliminary to the administration of the sacrament,
and that a priest who enjoined such a performance was liable
to be suspended from his office. The learned judge who
tried the cause told the jury the question for their decision
was whether the paper was calculated to injure Mr. Hearne
in his character as a man and a priest, by representing him
t) have done what would have degraded him as a man, and
what was so great a breach of his duty as a priest that it
would, if he had done it, subject him to be deprived of his
benefice by his bishop. If the jury thought the imputation
whieh had been suggested was made in the sense which had
been also suggested, it must follow that the publication was
a libel, for which the plaintiff was entitled to receive damages
in compensation for the injury which he had suffered. A
rule nisi had been obtained calling upon the plaintiff to show
cause why the verdict should not be set aside and a new trial
granted, upon the ground of misdirection by the learned
judge, or why the judgment should not in any event be ar-
rested upon the ground that the alleged libel, as set out in
the declaration, did not, in fact, contain any direct charge or
imputation upon Mr. Hearne at all.
The Solicitor-General now appeared to show cause against
the rule, and contended, that whatever technical defects
might exist in the form of the declaration were cured by the
fact of the verdict, which had been found for the plaintiff, in-
asmuch as the learned judge had expressly called upon the
jury to consider whether the publication in question was
made with a design to lower the plaintiff in the estimation of
society, and whether it also had produced such a conse-
quence in fact. As the jury must have decided those ques-
tions in the affirmative (for they could not otherwise have
found a verdict for the plaintiff), the objection to the want of
completeness in the allegations of the declaration was cured
by the fact of the finding. The jury having, therefore, in
substance found that the paper imputed to the plaintiff a
gross breach of his duty, for which he was liable to be sus-
pended, and which was, therefor,e, calculated to do him a
most sefous injury in his sacred profession, he (the Solicitor
General j did not see how the court could arrest the judg-
ment in the case.

Mr. Hoggins and Mr. F. S. Murphy followed upon the
same side, and contended that the question of libel or no
libel was usually left to the jury in the same manner as had
been done upon the present occasion, and that the charge of
the learned judge who tried the case was, therefore, per-
fectly correct.

Cresswell submitted that the rule for the new trial
ought to be made absolute, or that in any event the judgment
ought to be arrested, upon the ground that the declaration
contained no tillegation whatever that Mr. Hearne had or-
dered the performance of the penance, or that his doing so,
if he had done it, was in any degree contrary to his duty as a
priest. With regard to all that had been said about the pre-
sumptions which were made by the jury, it was to be ob-
served, that the jury could neither presume nor find anything
except that which was in issue, and that upon the present re-
cord there was no issue at all upon the matters which they
were supposed to have presumed. If the propriety or impro-
priety of the conduct said to have been imputed to the priest
had been put in issue, the plaintiff could have called wit-
nesses to prove that such penances were frequently imposed
by other priests of the catholic church. It had been certainly
proved that the effect of Mr. Hearne's having ordered the
performance of the penance in question would be to cause
him to be suspended. But such effect was a matter
altogether beside the question which the jury were to
decide, and formed no ingredient in the decision, as there
was no allegation upon the record that the plaintiff had im-
puted to the defendant the commission of an act which would
expose him to the censure of his own ecclesiastical superi-
ors. The object of Mr. Stowell was manifestly to show the
superior purity and truth of the protestant over the catholic
religion, and it would certainly be a most alarming doctrine
to hold that such a statement was a libel, and that the
months of all persons who might entertain the same views
that Mr. Stowell did upon the subject of what he considered
the superstition of the catholic church were to be stopped
for the future. It was alleged in the declaration that the de-
fendant bad made the statement in question with a view to
" impede" the plaintiff in the execution of his duty as a
catholic priest ; but it would be an extraordinary doctrine to
hold that this was an illegal purpose. There were thou-
sands of persons in this kingdom who considered it their
duty to " impede " the catholic religion as much as they
could, and some thousands of speeches had been made with
that view in the metropolis during the last ten years. To
hold that all these speeches were slanderous would be as
extraordinary as it would be alarming, and he (Mr. Cress-
well) confidently anticipated that the court would never
come to such a conclusion. With regard to the statement
itself it might be observed that the man O'Hara did not even say that Mr. Hearne had ordered him to do the penance, but
only that he (O'Hara) thought that unless he performed it
the priest would not administer the sacrament to him. The
penitent, for anything that appeared in the statement, might
be either a maniac or a person labouringnnder the conscious-
ness of guilt, who inflicted penance upon himself, under
some delusion as to what was the opinion of the priest upon
the same subject.
Mr. W. H. Watson followed on the same side.
The Court, which sat till six, took time to consider their
judgment.