The Express.
London, England, 1859-07-06 00:00:00

COURT OF EXCHEQUER.-JuLT 6.

Sittings at Nisi Prins after Term, at Gatldhall.—(Before the
Lord Chief Baron and a Special Jury.)
IN FEN O. LORD CHIELMSFORD.
(Concluded from yesterday's trpreu )

The Lord Chief Baron—On coming to this stage of the
Nee lt isseceseasy to look at the issues. I wish to auk if the
lamed enamel for the plaintiff thick' there is evideom to go
to the Puy on the second count.
Mr. Keenedy—l think so, oertaialy, my lord.
The Lord Chief Baron read the count, which charged fifr
Cromwell Cromwell, then one of the judges of the Court of
COMBOS Pleas,with having privately, clandestinely, and
gully conunueicated to the counsel for the plaintiff (the
defendant) that he had formed an opinion unfavourable to
her case, for thepurpme of intimidating and inducing her to
enter into a compromise, and el Wing the 16. l to an end, and
that thereupon the defendant, in collusion with the judge,
entered into such compromise and wrongfully and fraudu-
lently beanie a party to the illegal purposes of the said judge.
Hie kodeldp them said—hlr. Yesasely, do you think there is
aurevideece to this meat f
Mr. Kennedy—l Mak I have proved every word of it.
(Sensation.)
The Lord Chief Baron—l presume, Sir Fitzroy Kelly, you
take no objection, but I ought to try this (nosiest wouldany
other ; however if all the parties wish it to go on, I will not
interpose, but there is other business to be attended to.
Sir Fitzroy Kelly—lf the case wore of any other character,
I should appeal to your lordship whether Mortis a particle of
evidence to support either one or the other of the grave sad
terrible charges made on this record. I myself am convinced
that not a scintilla of evidence hes been submitted to the
jury on which to rest one or other of these fearful accusations,
but on Woking at what the accusations are and after bearing
the opening statement of tte counsel for the plaintiff, I par-
entally shriek from suggesting any mune.
The Lord Chief Baron—l do not shrink from doing my
duty. As to the first count, Sir Fitzroy, you may take any
course you please, but I am of opinion that there is not •
particle of fields nee to support the second count.
Sir F. Kelly—Then what in it on which I ate called upon
to address the jury? lam not only prepared to go on, but
I confess after the oratement which has gone forth to the
very end of the world concerning those chiefly interested in
the cause, and concerning the defendant particularly, that it
would be with great reluctance Ishould adopt any course either
for the convenience of the jury or the ends of justice, which
would preclude me from dealing with the entire question,
and from calling every party to the act charged as almiaal. '
I am of cutires to the hands of the court mad of the jury.
The learned judge not having interposed,
Sir Fitzroy Kelly proceeded to ob the jury for the
defendant.

The Right Hon. Lord Chelmsford was then called and
'nasalised by Mr. Smith. He said—When Sir Frederic
Thedger I wail leading counsel for Mrs. Serlefen.
Rowley and Mrs. Leaahostin were examined In her behalf.
I was not quite satisfied u to the comae things were taking,
and not quit* happy as to the result. In the course of their
oreseexazoination letters es to the compacncy cf the tes-
tate, were read. I thought the effect of their evident*
oa the jury was rather prejudicial. I pat ently
recollect that when the court was adjourned I
had a communication with the judge. My imprusicn
to that I went to shake hands with him ; he woe a very old
Mend of mine. Ido not think he beckoned to me, or called
me over to him. Ido not recollect exactly what he said ;
but I can say that the impression it left on my mind was
that be had formed an unfavoarable impression u to our
case. I think he made that communication as between
friends. nit as between judge sad counsel. On my stepping
down I add to the Steamer General, " It is a pity that this
ease cannot be settled," end be replied, " I think
so too. My people ere ?deadly disposed." I certainly
told Mr. Alexander and Mr. Whitmore that the judge was
unfavourably disposed towards our case. They and Mr.
Simpson and Mr. Cole came to my lodgings. I said 1
thought the we was not going very favourably, and sug-
gested that we should come to en amusement. I desired
that Mrs. Swinton shoold be lent for. I never said at any
part ot that interview, either to Mr. Simpson or to Mr. Cole,
or to Mrs. Swinton, or when Sir Henry Durant came, that
say offer had bees made by the other side. 1 may
be permitted here to my that I never said I
had received • communication from high quarters,
or sulything which should have led the parties to believe I
had had any communication with the judge. I certainly said
I thought the jury were unfsvourable to us. I ens sorry to
hear that I treated Mr.. Swinfen with discourtesy. 1 c.r-
Lately do not think I did so, but 1 pressed on bar moat
strongly to come to some arrangement. When Sir Beery
Currant came I repeated what I had sold before. I
remember • very extraordinary question he put to
me. When I said the jury had taken an un-
favourable view of our case, be asked, " When shell we
know the opinion of the jury ?" I replied, " Cirtainly
nett until the verdict is pronounced." They left promising
to consider the suggestion. The next day, Sunday, before
the arrival of the Plenum, I saw the Attorney-Generel. I
wit feeling the pulse of the Ether able. We poke about a
life estate, but I clearly saw Holt would not be entertained,
and then I spoke about 1,0001. a year, and I understood that
might he agreed to, but I dil nut understand he had this
consulted his client. When the telegram sr, Ned, " The offer
la refused," I said. " This is not astisfactory ; no off• r was
made ;" end I thee said to Mr. WWI monte, *. We mu-t fight it
out." On Monday morning, between 8 and 9, Mr. Smuts
came to me. He stated that sines we had met a circumstance

had occurred which in his judgment rendered it very im-
fitst that the ease should be areaseed. He said be had
learnt that Mm. Seriatim, the plaintiff, bad given orders to
the nurse to deny the testator to Mrs. Frances Swinfeu
when she called on the 7th of July, the day when the will
was made. My itepresaion is that be brought no paper. 1
certainly took none swey with me. I odd, "Very well; I
will so to the Attorney• General, and will offer to aka
1,0001. • year." Mr. Simpson certainly sequieeced Is
sy going to the Attorney-General. I tutted the Attorney-
Omelet if ha would give the 1.0101. a year. Ile raid he
mold, end I said, " Very well, let it betted/wetted that that
Is the beats of our arrengentent." I reettionei that to Mr.
Simpson and Mr. Cole. There was no objection made by
them, but something was add about costs. The Attwney-
Omani said ho should not like to be at the merry of Mr.
Simpson, and he would like a rum to be named. I IDell•
Volta this to Mr. Cole and Mr. Simpson, and they suggested '
2,0001. The Attorney-General odd thle was absurd, end his
idea was 1.0001. I then enggested that we should hike
1,5001. The Attorney-General had written out
the term., leaving • blank for tbo costs,
which he tilled up with 1.2b01. When the
high sheriff interfered, the :Atiorney-Gereeel told me there
was • chance of the erraageoient being broken of. I was
much annoyed, and said, " It was hardly fair, of or we were
agreed, that he should allow himself to be liflueseed by hie
He then went out of court with his client. They
were • lon thee away. I west out, end saw Colonel Dyes
in mum:region with them, and told him that I thought he
should not interfere. It was when I thought the arrange-
:nest wee about to be broken off. Mr. Simpson ailed me
to wait for hi ellest's arrival, sad I told him that if the
Wet proceeded all hopes of • compromise were at
an Ind. When the Attorney-Gefienl returned he said his
client would net signs unless the annuity wee to come sees
at the 111elsebees quarter, and he to receive the rents up to
that time. Mr. Simpson world not undertake to contest,
end I mid, well I meet take the responsibility on myself.
Mr. Simpson call, " Well you must defend we from my
client," end I replied, I In common with my learned friends
will undertake all responsibility. I thought I took a course
which was not only most beneficial tomy client bat which was
forced upon me. My engagements at Swamies sever entered
into my mind lam quite sure. I never mid it was by flit
Henry Durrant's or Mrs. Striate's authority I entered into
the compromise, for that would have been untrue.
Croas-examined-1 read all the inrructioes which were
laid before me. Here ere my notes from my brief. (Pro-
ducing voluminous netter.) I did not communicate what the
judge had mid to me to the Attorney-Germ al. Ido not recol-
lect what he di 1 ray ; but Sir Cromwell Cromwell met me by
accident the other day in Hyde-perk, and told me what he
did soy. He mid his words were, "I think Cockburn bes
demised your female witnest es." (Great laughter.) He .id
I seemed annoyed or surprised, midfield, "Do you think so ?"
I bare not the slightest recollection of Lis saying the verdict
is gone, and about caving something from the we eek. What
he raid certainly made an impression on me, and I acted en
it. Os the Sunday I went to church in the afternoon, and
afterwards dined at Lad Hathertoes.

Mr. Kennedy—Where did you dine on the Saturday?
Lord Chelmsford—l really don't recollect; I dine so
(Laughter.)
Mr. Kentrely—Did you dine at Mies Span-ill's.
Lord Chelan fent—l really bare not iRa it n Air of knowirg
the lady. (I...righter.)
Mr. Kennedy—Did you dine anywhere in company with
Lady Clifton ?
Lord Chelrusford—l do sot know bar. I here not that
honour. (Laughter.)
Mr. Kennedy—Did you meet Mr. Chetwynd ?
Lord Cheluisford—l may say that I do not know Mr.
Chetwynd either. (Laughter.) Sir Cromwell Cromwell diced
et
Loud Hatlnetou'e. He did not *peak to rue, or in my
bearing, about the rause. Colonel Dyott, the High-Simla,
ates dined there. I did not commonest, to my client whet
die judge had said to me, became I regarded it as • friendly
cemmunication.
Mr. Kennedy—May I ask if your lordship thought it
right that the judge a/staid m.ke such • communication.
Lord Chailmeford—l do not thick I am bound to answer
any question of tin kind. (Applause.)
The Lord Chief Baron-1f any demonstration of that kind
Is repeated 1 shell order the court to be cleared.
Lord Chelmsford—l am sorry, nay lord, that any answer
of mine should bare elicited it,_ . . .

cootlawd—l will Le 4 go so far as to

say that Mr. Simpson did no triage as a compromise an
estate for life. I coacinded the compromise shortly belong
Mrs. Salaam arrived. Mr. Simpson kad asked me to wait.
lie did not say that my settlement must be suspended
until her arrival, except that taking me to wait might imply
that I never said before the trial that Mrs. Swinfen had not a
leg to stand upon. I felt great sympathy for her, and was
scat anxious she should succeed.

Sir Cromwell Creswell, Judge Ordinarry of the Court of
Probate, was next examined by Mr. Borth.—l presided at
the first trW of Swinfen and Striates. I recollect the
substance of a conversation I had with Sir Frederick
Thriger, at the end of the first trW. I beckoned him over
and shook bends with him. I mid the Attornsy-Oeueres
cross-examination of your lady witnesses has rather damaged
them. That was undoubtedly my opinion at the time.
Crum-examinedby Mr. Kennedy—The eommunicatlon
I made would bad to the impreesion that I thought the
evidence of two material witnesses had bananas affected by
the mosa-examination. Ido not recollect that anything was
. .

midis me se to the probable length of the Elwin's& ewe. I
dined at Lord Hatherton'e on the Bentley. Upon my word,
I easset say whether I spoke about the Swia6n imam or
net. If any gentleman had asked me about It I should here
answered him. (Laughter.) I think it extremely probable
that if I talked about the cause to Colonel Dye* I ex-
pressed an opinion unfavourable to Mrs. fiwleha's
&eft Bramwell wee with us.
The Lord Chief Justice Cockburn, who had been
In the Court of Queen's Bench, and who appearedPrra
robes, was next called, and examined by Mr. Smith—He mid,
I wee marvel for the hdr.at-law in the cause of "Swish& v.
Irinten." Mrs. Rowley and Mrs. Leashman wage crew
examined by me se to letters they had written to some ma-
bare of the family on the death of the testator's son.
I recollect Sir Frederick Theatre saying that
evenine;ielnad recollect perfectly that to conformity with
my o from the time I first read my instruoticne, look-
ing a the position of Hui parties, that it was a case which
above all others should be settkd. On the Monday morning
Sir Frederick Thesiger eall3llto me end the terms of • corn-
remise were discussed. It so happened that the terms he
had offered were those which had presented themselves to my
mind, as terms which should be assented to by us. I would
not have gone farther nor assented to those but for the poet-
Bon of the parties. My imprsmion wee, that mum there
were some better evidence behind, the plaintiff's case had
broken down, and utiles@ there were a sympathy on the part
of the jury, and • natural sympathy for Mrs. thrinfers's
position, the verdict was safe for no. But, independent of that
areeregamination, I had every confidence in my case.
Crossexamined—l maimed when the oi minorities was
stereed to that the present defendant, Lord Chelmsford, had
h client's consent. lem almost sure I had not read the
bill In Chancery. I bad heard of it.
The Lord Chief Baron—Very sw people volunteer to read
bille in Chancery. (Laughter.)
Tbe Lord Chef Justice was now about to loses, when he
mid—l wish to speak to my Lout Chief Baron about a ease.
The Lord Chief Baron—ln the Ohl Bailey.
[This Whitton to the observations of Sir Fitzroy Kelly on
Iltr. Kennedy's opening address caused much laughter in
court.]
Mr. Alexander, Q.O who bad been one of the junior
counsel in the come of "Swiefen and Swinton" when the
compromise was entered into, was then called, and proved ho
concurred in the recommendation for an arrange•
meet as the most beneficial course for the plain-
tiff's intereet. He corroborated the evidence of the
noble defendant as to interviews which had taken
place between counsel, the plaintiff, and her solicitor and
stated that the manner of tbe defendant was most kind and
courteous to her. As counsel for the plaintiff, be thought
the errangement the very best that could hare been made
for bar.

Mr. Brhilmore and Mr. Gray, who bad also been counsel
kr Mrs. 8 +Jahn In the same cause, gave similar testimony.
This closed the came for the defendant, whose evidence was
summed up by Bir Fitzroy Kelly.
Mr. Kennedy then replied on the whole cue.
The Lord Chief Baron then summed np. He said that as
to the second count that which charged collusion between
the defendant and Sir Croswell Quota, he would direct
them that there woe no evidence to go to the jury. He
would further say that he did not think it was decent to put
the second count on the record, and he did not think 'het
any apology which the learned counsel for the plaintiff stated
he would make would be any satirfaction to the learned judger,
whose character had ban assailed, or to public decorum and
decency, which had, in his opinion, been outraged by putting
on the records of the court such a charge as this. Nest to
trial by jury, the independence of the pier sad of the bar
wee one of the greatest safeguards to ametitutional rights,
sad, therefore, of their soclel happiness. He would lay it
down as • principle of law, that all the law required. a ho-
rnier to do was to discharge his duty towards his cheat as
best he could. He might be utterly wrong or mistaken—he
might be, as the counsel for the plaintiff had suggested, under
the influence of fear—but if be intended to act honestly
by his client be was not responsible. The learned
judge then alluded to the material point. in the evidence, and
sag that the simple question which the jury had to decide
wee, whether the deteodsat had acted fraudulently or im-
properly, or in the best interests of his client.
The jury, without a moment** hesitation, returned a verdict
for the defendant on both comite.

The announcement was rec, we I with loud applense, which
wee auppreaded by the officers of the wort.
The counsel for the plalcuiff heviog venders,' a bill of ex-
orelons to his lordship's rnliog,
The court adjourned at a quarks to 10 o'clock.

COURT FOR DIVORCE AND MATRIMONIAL

CAUSES.-JuLT 5.

(Before Mr. Justiceiiiiiiiman, iir..l7istice William', and
an Judas Ordinary.)