The Press.
London, England, 1856-12-06 00:00:00

Yat anb Volta.

THE GREAT SWYNFEN CASE Was resumed on
Monday by Mr. Kennedy, who at the outset applied
for leave to file an additional affidavit of Mr. Simp-
son, the plaintiff's attorney, in answer to some state
menta made in the affidavit of Sir F. Thesiger. The
court refused the application, upon the ground that
it had been made too late.

Mr. KENNEDY submitted that as this was an issue
out of the Court of Chancery, therefore the Court of
Chancery alone had power to deal with the case, for
the act of 8 and 9 Victoria made no alteration in the
matter. In reference to the affidavits, he submitted
that it was plain that one party had spoken the
truth and that the other had not:—

He trusted that he should be able to show that his
client had spoken the truth, and that ou the other aide
facts had been deposed to which were not true. Mrs.
Swynfen deposed that on the Saturday the 1,0001. a year
had been distinctly offered to her, and that she had posi-
tively refused it. On the other side it was said that the
offer was not then made to her, but the matter was only
talked about as a thing likely. It was also said that
counsel had authority fr)m the plaintiff's attorney for what
was done. It was likewise sought to repudiate the charge
which imputed to them a foul and criminal malpractice,
that they made an improper use of the judge's name to
intimidate Mrs. Swynfen, and, if that were true, they were
guilty of s foul conspiracy. They met that charge by ex-
pressly denying it in so many words. Mrs. Swynfen had
no remedy against her attorney because Sir F. Thesiger
had acted on his own responsibility, and she had no remedy
against Sir F. Thesiger because he was irresponsible at
law. The whole thing was a contemptible juggle.

Mr. Justice CRESSWELL remarked that the learned
counsel did no,. seem to have acquired a more tem-
perate style of argument since their last meeting.

Mr. KENNEDY said that it would be seen whether
they did not deserve what he had said of them. He
contended that they did upon their own showing.
Sir F. Thesiger having first tried to bully the client,
afterwards bullied the attorney, and subsequently
entered into the arrangement on his own responsi-
bility. When Sir Frederic met Sir Henry Durrant
outside the court, he falsely stated that he had en-
tered into the arrangement by his authority. Had
he behaved even like a gentleman ?

Mr. Justice CRESSWEL. suggested that the learned
counsel had better confine himself to arguments
likely to influence the court.
Mr. KENNEDY then shortly concluded his argu-
ment :

He relied upon three distinct grounds, either of which
was sufficient for his purpose. He contended that this
order was a nullity, first, because this court had no juris-
diction at all, the judge's order for settlement having been
made in an issue sent from a court of equity ; secondly,
that counsel had no power to bind Mrs. Swynfen by the
contract that had been entered into ; thirdly, he said that
the contract was illegal, having been brought about by a
foul and criminal malpractice, that the order having no
basis to stand upon was utterly void, a nullity in law, and
a nullity in every respect but one, alas, that it would leave
an indelible stain on the administration of justice in this
country.

Mr: COLE followed on the same side.
Mr. WHATELY then addressed the court in support
of the rule :

The first question was, what authority counsel had in
cases of this kind, and that was an important question
which had not been well defined by anything that had
taken place hitherto. Counsel had most important into•
rests intrusted to them, but he denied that they were to be
considered as mere delegates, or as one case said, •` slaves
of the parties." They were bound to act for their clients,
and if their clients would not consent to do what was best
for their interests, the counsel might say that they must
get some one else to conduct the case.

The learned gentleman then went through the affi-
davits, the substance of which has been already
before the public, and he contended that, upon the
statements in those affidavits, the settlement was one
that was proper to be made, and that Sir Frederic
had authority to make it. Even in all the malignity
which had been displayed in this case, it was not
suggested that the settlement had been entered into
from improper motives, or even to suit any personal
convenience. He also submitted that it did not
appear upon the affidavits that Mrs. Swynfen had at
once, and in a positive manner, repudiated the ar-
rangement which had been entered into, and which

1161

it was necessary she should have done before at*
could ask the court to discharge this rule. The court
at this period adjourned. On Tuesday the case was
resumed and concluded.

Mr. NV/LATELY continued his argument, and took
up seriatim ihe objections of the opposite bill. An
objection bad been taken by the counsel on the other
side that these proceedings had been brought in the
wrong court. In the present instauca a juror bad
been withdrawn by consent, and then both sides had
agreed to an order of nisi pries :
It had been made a rule of this court by consent, and
then they turned round and said that, nothwithstanding
that, the rule of court was a mere nullity as there was
no valid order of nisi prin.. There was no precedent nor
authority by which they could support such a proceeding.
It had been also contended that a proper deed had not
been tendered to Mrs. Swynfen for her signature. He
should contend that it was a proper deed, but Mrs. Swynfen
was not in a position to make that objection, because both
she herself and her attorney had sworn that she would not
have executed any deed at all.

Mr. KENNEDY admitted that that objection must
be abandoned.

Mr. Justice CaEsswzm: I suppose you have au-
thority from your client to do to?
Mr. WHATELY supposed so :

Another objection had been taken—namely, that the
order at nisi prius was vague. That order set out the
agreement between the parties, and he was rather sun
prised at any objection being taken to it; considering the
very eminent person who had drawn it up. There was a
clause which referred any dispute regarding the terms of
that agreement to Sir F. Thesiger and the Attorney-
General, which was now objected to. What could be more
reasonable than that the persons who drew up the terms
should settle any dispute which might arise with regard to
those terms ?

Mr. Simpson, it was maintained, had no authority
for compromising the case. On the other hand,
there was the affidavit of Sir F. Thesiger, supported
by those of Mr. Alexander, Mr. Whitmore, and Mr.
Gray. Mr. Cole, who was said to have been with Mr.
Simpson at the time, might have come forward and
denied the authority ; but he had not done so. In
some cases the court would doubtless consider
whether or not the counsel had authority, but as a
general rule that authority would be inferred. In
the present case it appeared to be irresistible that
the counsel had authority from Mr. Simpson. It
was also stated that the plaintiff had never assented
to nor ratified the compromise. So the lady said,
and it might be true ; but that was not sufficient.
She ought to have expressed at once her dissent,
instead of which her attorney some time after wrote
a letter saying that he had not received any instruc-
tions to object to the compromise. It had been con-
tended that when a serious question of law was at
issue the court would not proceed by summary pro-
cess, but would leave the party to his remedy. It
was a mere question whether the affidavits on the
part of the defendant were true, which could not be
doubted, considering the gentlemen who had made
them. He therefore should submit that this rule
ought to be made absolute.
Mr. KEATING followed :

The first question was whether counsel in a cause had
general power and authority not incident to and resulting
from their immediate and particular instructions; and,
secondly, what was the extent of that power and authority.
He contended that the arrangement made in this cause
was within the plain, well known, and recognised power
and authority of counsel in their character of counsel as
instructed by the attorney in the suit. He contended that
the arrangement made by Mrs. Swynfen's counsel was in-
cident to the powers of counsel, whether the client was in
court or not, and did not require the special assent of the
client. He should regard it as an insult to Sir F. Thesiger
to stand up and vindicate his characterfrom the aspersions
cast upon him. It would never occur to him, either in
that court or elsewhere, to vindicate the character of a
man who was an ornament to the bar and the Senate,
who had reached a somewhat advanced period of life
without the smallest stain upon his character, and whose
honour and integrity as a man and a gentleman had never
been impeached. Such observations as had been made
upon Sir F. Thesiger by a gentleman at the bar were with-
out precedent, and he trusted they would not serve as an
example for any future exhibition.
As to the evidence in disproof of Mr. Simpson's state-
ment, it was overwhelming. Mr. Simpson would lead the
court to suppose that from the arrival of the telegraphic
message at one o'clock on Sunday afternoon until the termi-
nation of the cause he bad never consented to the agree-
ment, and had had nothing to do with the arrangement,
except to object to it. The evidence in disproof of the
statement was not that of Sir F. Thesiger alone. Mr.
Simpson told Mr. Whitmore also, a junior counsel in the
cause, that circumstances had occurred to render it ex-

tremely desirable that an arrangement should be made.
Mr. Alexander and Mr. Gray, who were also engaged in
the cause as counsel, swore that they !Idly believed that
Sir F. Thesiger was acting by the authority of Mr. Simp-
son, who was present in court. Could the court believe,
in the teeth of this evidence, that the statement of Mr.
Simpson could possibly be true? Then let their lord•
ships look to the position of the third parties in this
arrangement. What was it to him, as counsel for the
defendant, what arrangement they might make among
themselves, when he saw the counsel and the attorney to-
gether arranging the basis of an agreement ? The dissent

1162

of the plaintiff afterwards expressed was wholly immaterial.
He submitted that this agreement was entered into con•
sistently with the undisputed rules of law, and that the
plaintiff was bound by the arrangement. The first formal
repudiation was made as luto as the month of May, two
months after the compromise had been effected. That
could not be held to be within a reasonable time, when the
Court of Chancery had decided that notice given in two
days was:not within a reasonable time. Mrs. Swynfen
ought to have stated earlier whether she intended to have
repudiated the agreement or to have stuck to it.

Mr. EDWIN JAMES followed briefly on the same
side.

Judgment will be given on the first day of next
term.

Tint INQUEST in the case of the collision on the
Newport and Hereford Railway, after several adjourn-
ments, was brought to a close on Friday week, at
tibergavenny. The jury, after deliberating two hours
and a half, returned the following verdict :

We are of opinion that the deceased parties, Edmund
Henry Hands and Mark Hicks, came to their deaths near
the Nantyderry station, on the Newport, Abergavenny, and
Hereford Railway, on the 12th day of Nevember last, owing
to a mineral train running into two carriages of the down
express train, which had been thrown across the up line
in consequence of the engine having lost her left hand
leading•spring, and having run off the line at this place.
We find a verdict of manslaughter against George King, the
running-shed foreman, and also a verdict of manslaughter
against Nathaniel Sargent, the driver of the down express
train. We are of opinion that it is desirable that the loco-
motive superintendent should personally examine all can-
didates for offices in his department, and that reading and
writing should be always considered as necessary qualifica-
tions for such candidates.
Sargent is supposed to have absconded; King was
absent, in attendance on his duties. Steps were
ordered to be taken for the apprehension of both.
The prisoners will take their trials at the next Mon-
mouthshire Assizes, to be held in March, 1857.

THE BULLION ROBBERS, Pierce and Burgess, were
again examined before the Lord Mayor on Tues-
day:—

Mr. Bonxiti, addressing the Lord Mayor, said : Since
the last adjournment we have ascertained beyond all rea-
sonable doubt that, by the next adjournment which must
take place, the other man, Tester, who is alleged to have
been an accomplice of the prisoners, will be here and in
custody.

Mr. Lewis : Are you in a position to state positively
that Tester is in custody ?
Mr. BODKIN : No, I cannot state that.
Mr. Lewis : Then the question arises whether the antho•
titles of the country in which he is said to be will give
him up.
Mr. Bomar; : There is no difficulty about that. Al! that
is arranged.

No evidence of any material importance was given,
and the prisoners were remanded till next Wednes-
day.

AN ENTERTAINING BREACH 07 PROMISE CASE, and
one the result of which is most important to all ba-
chelors, and to young men suffering under acute
or chronic engagements, was heard on Wednesday at
the Court of Common Pleas before the Lord Chief
Justice Cockburn and a special jury. The action was
brought on behalf of Miss Crippen, a daughter of
the London manager of Messrs. Walker and Parker's
well-known lead-works, against Mr. Frank Fare-
brother, a son of Alderman Farebrother, and head
partner in certain wax, oil, and sperm works, carried
on at Stockwell, under the name of Farebrother,
Bremner, and Co. The story of their love was less
remarkable for romance than for its charming sim-
plicity. In a certain chapel of ease at Stockwell the
young couple, from 1849 to 1852, had periodically
met during the young lady's holidays. They were
both assiduous in their religious duties ; this con.
stant coming together grew into acquaintance, ac-
quaintance ripened into love, and in 1852, when the
young lady had reached the age of seventeen, the
young gentleman, who had arrived at twenty-six,
in due form made proposals. The question was re-
ferred to the respective parents. They met and
consulted. Alderman Farebrother disclaimed mer-
cenary motives ; he wanted no money ; he would set
his son up in business, and, if the young people
loved one another, why that was sufficient. After
this the young people were recognised as affianced
lovers, and were received on such terms at the re.
spective houses of their parents and friends. The en-
gagement continued until May, 1856, during which
time letters (to the number of hundreds) had passed
between the " loving and devoted Frank " and his
" darling Susy," all couched in the warmest and most
affectionate terms. As specimens of the warmth of
Stockwell affection, and the indifference of its gram-
mar, we will venture to give a few extracts from the
letters of last year. The first is dated " 95, Bishops-
gate-street, Feb. sth, 1855," and is as follows. Mr.
Farebrother was at this time clerk in a wholesale
druggist's in the city, and was anticipating a speedy
removal into a better position in the " sperm and
works":Pil