The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-04-13 00:00:00

SOUTH LANCASHIRE SPRING ASSIZES

NISI PRIUS COURT.-THURSDAY

Mr. Baron Rolfe took his seat on the bench at nine o'clock
this morning.

BRINDLE WILL CAUSI

-MIDDLETON AND OTHERS V

SHERBURNE

Mr. CRESSWELL, shortly after his lordship had taken his
seat on the bench, handed up to him a copy of that morn-
ing's Liverpool Mail, and said, " I beg to call your lord-
ship's: Attention to an article in that paper." The article in
question was a leader containing some observations on the
special jury case fixed for trial that morning, and seemed to
have caused no ordinary degree of excitement amongst the
gentlemen of the bar, especially those retained on the side of
the defendant. Mr. Baron golfe read the article, or a por-
tion thereof, and then returned the paper to Mr. Cresswell.
The learned gentleman remarked, on receiving it, " I think
this is a case for the Attorney-General, my lord."
This special jury case was appointed to come on this morn-
-11,1g: The followin gentlemen composed the jury :Johii
Swire, Liverpool, merchant; Robert 'Wynne, Liverpool,
merchant ; John Wilson, Toxteth-park, merchant ; James
Jackson, Liverpool, merchant; William Niacin, Liverpool,
merchant; Samuel Dutton, Liverpool, merchant; John
Caton, Toxteth-park, merchant ; Atkinson Wilkin, Liver-
pool, merchant ; John Hamilton, Toxteth-park, merchant ;
Falter Marten, Liverpool, merchant; Francis Jacques, Li-
verpool, merchant; and Charles R. Simpson, Liverpool,
merchant.

The counsel for the plaintiffs were Sir William Follett,
Mr. Dundas, Mr. Crompton, and Mr. Cowling; for the de
fendant, Mr. Cresswell, Mr. Watson, and Mr. Murphy.
A long consultation took place, after the jury were sworn,
between the counsel on both sides, for the purpose, most
probably, of trying whether some accommodation could not
be effected. This having failed,
Mr. COWLING opened the pleadings. In this case, John
Francis Middleton, and his wife Alicia Maria, and Thomas
Eastwood, and his wife Catherine, were the plaintiffs, and
the defendant was Mr. Thomas Sherburne. Tile case came
down here by writ of inquiry from the equity side of the
Court of Chancery, to ascertain whether William Heatley,
the testator, who was seized of certain freehold lands in this
county, did, in February, 1829, by a written paper purport-
ing to be his will, devise those lands to certain persons, and
whether by a second written paper, purporting to be a codi-
cil, and dated the 12th of August, 1835, be devised his
lands ; and whether by a third written paper, dated the 2d of
January, 1836, purporting to be a codicil to his will, he de-
vised his lands ; and the first question to be determined was,
whether the testator did really devise those lands ; secondly,
whether by the paper written purporting to be his will, he
did devise them ; thirdly, and fourthly, whether by either of
the papers purporting to be codicils to his will he devised
them.

Sir WILLIAM FOLLETT requested that his lordship would
direct all the witnesses iu the case to-leave the court. This
Was accordingly done, and a great number of persons rose
and *went out.

Mr. CriusswEer, then proceeded to open the case for the
defendant. He . said that he had the honour to appear in
this case as counsel for the Rev. Thomas Sherburne, who,
though the defendant in this issue, yet had the burthen of
proof cast on him. He bad to establish that the late Wm.
Heatley, being of competent understanding, and exercising
a free will, made a last will and testament, by which he de-
vised certain lands. The jury would perceive at once that
this was a question of very great importance to all members
of the community, because it was an inquiry as to how far
the right of every man in this country to deal with his pro-
perty after death should be interfered with or not. The
plaintiff Mr. Middleton, and the plaintiff Mr. Eastwood,
married two nieces of the late Mr. Heatley, and he by his
will and codicils left to his two nieces property worth about
£40,000, and to Mr. Sherburne his real property, worth
about £10,000; and because Mr. Heatley thought fit so to
deal with his property, the husbands of his nieces had now
called in question his competency and free agency in making
the will. It would therefore be necessary, in order entirely
to clear Mr. Sherburne's character from any supposed mal-
practice, to vindicate his reputation, and not to leave on it
the slightest stain, to refute all those calumnious reports
which bad been so industriously circulated, some of which
had been circulated by Mr. Eastwood himself, as would be
proved in evidence. He (the learned counsel) should call
on the jury to pay particular attention whilst he traced the
personal history of the late Mr. Heatlev from the earliest pe-
riod to which the memory of his friends went back, down to
the period of his death. By so doing he felt the utmost con-
fidence that he should prove the testator to have been a man
not only of competent, but of more than competent under-
standing. He should also prove him to have been a gentleman
of excellent feeling, of good disposition, and of generous heart,
but at the same time firm of purpose, choosing to judge for
himself, and to act according to the dictates of his own judg-
ment ; and he should show ample reason why the testator
should think fit to judge for himself, and if any other were
wanted than that desire to deal with his own according to his
individual judgment, it would be found in the conduct of
those very parties who now sought to call in question his
judgment and the exercise of it. Mr. Heatley died in the
summer of 1840, at the age of 75 years, having during that
long life bought and sold and managed his property as he
thought fit—having mortgaged, having transacted business
of every kind ; and he descended to the grave in 1840, no
one of his acts having ever been called in question, up to
that period, on account of his want of judgment; and now,
after such a life thus spent, so occupied with business of
every description—aye, and during the last three or four
years of it in company with Mr. and Mrs. Eastwood—the
plaintiffs brought against him a charge of being a drivelling,
half-witted, priest-ridden man, labouring under insane delu-
sions, and making a will, not from his own judgment, but
under the duresse and control of others. The testator, Mr.
Heatley, was the son of Mr. James Heatley, who was
for many years the land steward of Lady Stourton. By care,
prudence, and some fortunate speculations in land, for which
his situation as steward gave him good opportunities of effect-
ing, the father amassed, for him, a considerable property. His
son was sent to school in this country for a time, and after-
wards to a college at Douay, to finish his education there;
and on looking through tne different imputations cast on the
testator,,or rather the different stories by which it was sup-
posed his competency was affected, they found that he was
not correct in his orthography ; so because a gentleman born
in the last century, and educated in a foreign country, did
not spell English words correctly, lie was to be pronounced
incompetent to make a will. Having returned from Douay,
Mr, Wm. Ileatley entered the Lancashire Fencibles in 1835,
and served in the regiment, holding the situation of captain,
being
near to
in England and sometimes in Ireland, down
18oty in thteo the time of its being disbanded, in 1803 or
year 1798. meantime his father had died; this was in the
chased the Before his death Mr. James Heatley had pur-
of which ePr.OPerty called Brindle. That vv:,s the property
death. He I:„.einained in possession up to the period of his
ato and two'Ld‘ a Widow, who had a jointure on the property,
aughters. One of the latter died unmarried,
timeand tlaie other married a Mr. Taylor, an attorney, and some
1808, leav7PutY clerk of the peace. Mr. Taylor died in
Perty was 1g a widow and three daughters, when the pro-
Mr. Hartley divided equally between the three children, and
will. A Mr.uais appointed one of the executors under the
executor. At Stoner, a nephew of Mr. Taylor, was another
this time the testator and his mother lived at
a place called Barton Lodge,not far from Brindle, and three
daughters of Mr. Taylor taken home with him. They
were afterwards. were
sent to school ; but from time to time passed
their vacations at the house of Mr. Heatley. Things went
on in this way until about 1817, when the young ladies were
brought home from school. But the meantime,
Heatley, having
resided at Bartonecome possessed of his father's property,
bad aaarton Lodge, because the house at Brindle was a
one. The testator, however, thought proper to build a
Clew
he took lew One at Brindle; and
that he (Mr. Cresswell) should show
great pleasure in this, and superintended the
works in their progress. The house erected, together with
its conservatories, &c was erected at an expense of from
£lB,OOO to X 20,000. "It might be well that at this stage he
(the learned counsel) should show the extent of the property
devised by Mr. James Heatley to his son William, because
he could not help thinking that a great deal of the imputa-
tion cast on Mr. Sherburne had arisen from some false sup-
Position as to the extent of the property which Mr. Heatley
had acquired from his father. In consequence of the
haste with which this case had been brought to trial, they
had been discovering from day to day fresh papers, almost
down to the hour at which he (the learned caunsel) was speak-
ing; and they had lately discovered an account of the pro-
perty of the father, which was given by his then steward,
Mr, Teeby, This account showed what the property of Mr.
James Heattee was, and what would be the proper return for
him to make to the income tax. The total rental was set
down ; the payments that every tenant had to make to him.;
there was also put the interest of money paid to Mr.
Ileatley, and there were traces elsewhere that there were
certain promissory notes in his hands which would make
£27. The profits arising from your commission in the
amounting to £l6B was entered • and the whole
incotne was made out to be £2176. " The yearly value of
Your own estate in your own hands, £3O, and one-fourth
added," because, probably, it was thought that the estate
might have let for so much more, making £37 10s. Then,
on the other hand, were put down all the out-goings, amongst
others, his mother's jointure, amounting to £867, leaving a
clear income of £1647 3s. 6d., which was given in £1650, on
which the steward observed—" You will have to pay £165,
or 10 per cent." This return showed that the out-goings
consisted of a number of rents ; for a good deal of the pro-
perty which the testator's father left to his son consisted of
leasehold estates, which would necessarily decrease in value
as the lives fell out, and ultimately there would he an end
of the leasehold estate which lie had obtained. And there
was here a little trace of the spirit which Mr. Heatley showed
tbroughoughout life—a spirit of kindness, generosity, and
charity—for there was set down in the return, " yearly gra-
tuities to the poor, £100." He (Mr. Cresswell) happened
to know an eminent merchant in London, certainly not under
any priestly dominion, who laid by for the same purpose
COO a week. So that at this period Mr. James Heatley
was in the possession of £1650 a year. Such was the amount
of property received by the testator from his father—not a
property descending from remote ancestors—not a property
as connected with which there might he supposed to be any
feelings of family pride, but a property made in his vocation
of land steward, for some successful anticipators of the rise
or fall of land in the market at the time. The testator then hav-
ing received this property in this state, thought fit, as some
men not very young, but young enough to have anticipations of
pleasure, frequently did, to build the house at Brindle, before
mentioned. Whether that cramped his means, and he
thought he would try his father's art of speculation, he (the
learned counsel) did not know ; but in 1820 he sold a con-
siderable portion of landed property to Mr. Brockholes, and
a most excellent bargain he made. The property consisted
of 1400 acres, held on lease under the Duchy of Lancaster.
The lease had been renewed from time to time without in-
crease, and it seemed that Mr. Brockholes had purchased
under the impression that he would be allowed to renew on
light terms. For that sale the testator received £58,000.
The bargain turned out a bad one for. Mr. Brockholes, for
This
When the lease ran out be had to renew on ofnorbeastilterms.
was no great proof of want of judgment,.
genre, on the part of Mr. Heatley.inthe management
e r i n
ot
property. He (the learned counsel) would now mention the
Circumstances under which the testator became acquainted
and intimate with Mr. Sherburne. While Mr. Heatley was
living. at Barton Lodge, in 1808, the Rev. Mr. Sht. erbu
The
lne
Went to reside at Blackburn, as an officiating pries
in that name of Mr. Sherburne's mother was Irving,
and the chil-
dren of Mr. and Mrs. Irving were then living
neigh-
bourhood. The father died, and the widow afterwards mar-
ried a person named Swarbrick, the butler of Mr. Hebatrloeayd.
He became the patron of the children, and sent them .
to receive their education. One of the a
brothers, resyning
the name of Irving, became a priest, and was sent to ottivcelautpe
at St. Andrews, at Valladolid. The defendant also g
mother's name, and went to Blackburn. In the caonrse
of the year 1808 the testator went to reside at Brindle Lodge,
six miles from Blackburn, and there commenced a most
intimate friendship with the defendant, which continued down
to the period of Mr. Heatley's death. In 1813 Mr. Sherburne
removed from Blackburn to a place called the Willows, 13 miles
from Brindle Lodge, and though the esteem and friendship
continued unabated, the intercourse was less frequent than
it had been before. Things remained in this state when the
Misses Taylor, who were now Mrs. Eastwood and Mrs. Mid-
. dleton, with their sister Henrietta, came from school. Mr.
Heatley was a gentleman of retired disposition, and accord-

ngly he never accompanied his nieces to any places of amuse-
ment. But " every one to pursue his own liking" was his
maxim, and he had no objection to their going into company
with a proper person as their guide. They were accordingly,
under the conduct of Mrs. Stoner, introduced info' many fa-
milies in the neighbourhood. In. the house of Mr. Willacey,
Wilo lived at Barton Modge—(whether this was the Barton
Lodge formerly occupied by the testator he could not say)—
Miss Catherine Taylor first met Mr. Eastwood, and there