The Sun.
London, England, 1862-07-30 00:00:00

THE SUN, LONDON, WEDNESDAY EVENING, JULY 30, 1862.

LAW INTELLIGENCE.-July 29.

COURT OF PROBATE AND DIVORCE.
(Before Sir C. Creswell.)
HAWARDEN V. DUNLOP.-JUDGMENT.

Sir CT C7e-s—swell gave judgment in this case, the
particulars of which have been frequently placed
before the public. The application came before
the Court on a motion on the part of the plaintiff,
praying the Court to grant letters of administra-
tion with the will annexed, to the effects of the late
Lord Elphinstone. The defendant, who was ap-
pointed executor under the will, had applied for
confirmation in the Consistory Court of Dumbarton-
shire. Lady Hawarden disputed the will, and when
the case came before the Court a compromise was
effected, the opposing counsel being appointed to
determine the construction of an agreement upon
which depended the issues to be tried. The counsel,
Mr. Sergeant Shee and Mr. Montague Smith, could
not agree as to the terms of the agreement, and the
defendant applied to this Court to have the confir-
mation obtained in the Scotch Court, and which had
been deposited in the Court of Probate, delivered out
to him, with the seal affixed to it. The plaintiff op-
posed this proceeding, and filed a bill in Chancery,
and prayed for representation, as next of kin, of
so much of the property as was in England. The
plaintiff next applied to have the confirmation deli-
vered out, with the seal of the Court attached to
His lordship
thoughtit, bu t thethe
applicationdefendant
might declined
it. H
be granted so far as
to substantiate the proceedings ,in equity_
withequit what
y_lfswucahs
equitable,decision
thewould v
iiene any way interfere
Chancellor would know perfectly,
well how to deal with it. The application was ac-
cordingly granted.
Mr. Anderdon inquired how the Court had de-
termined the question of costs ; but
His Lordship declined to say anything as to costs
IN THE
w: a
rcHhkya
eEes
naeaGutOcwthhhOieoiDl
authorities,
children
rts OF T. for the present.
I
tnhweDri:asecsUcwEaosir—ulsdlpojawplnudoacipsseeeGrdwma drawntuEi
otdivh Twba.
uee
fsplouerbfni
nty:
t,dorrwii
was not the case of the testator. The whole
atowhbf eiwncmthi this
oli
ll
was
question turned on the validity of the instrument in
consequence of the introduction of this unnecessary
clause.

Sir C. Cresswell, in delivering judgment, said it
was a curious case, but decreed probate of the will
with the omission of the clause in question.

ASSIZE INTELLIGENCE.

HOME CIRCUIT.,--MAIDSTONE, July 29.
CROWN COURT.
(Before Mr. Baron Bramwell.)
_ _

A soldier named Lumsden was indicted for the
manslaughter of Alex. M'Cull, on the high seas.
Mr. Poland was for the prosecution ; Mr. F. J.
Smith was for the prisoner.
The case arose out of the old nautical custom of
" shaving" persons on board ship on the occasion of
their first crossing the Line.
It appeared that the prisoner and the deceased
were invalided home from India, and while crossing
the Line the usual sports in honour of Neptune
were indulged in. The prisoner had in the earlier
part of the day been engaged below, but M'Caul
had been on deck taking part in the amusements,
and had, according to one witness, been drinking
rather freely. Towards afternoon Lumsden brought
some tea on deck, and when M'Caul saw him he said,
"Now, comrade, you shall be the next for shaving."
To this Lumsden answered, " not be shaved
without giving you a smack on the head," and hit
M'Caul with his open hand under the ear, but in
a good-humoured way. The unfortunate man fell
back stunned, was raised, but only spoke once before
he expired. For the defence it was urged that both
men were taking part in the sports, and the blow
was given in fun to add to the amusement.
The learned Judge, in leaving the case to the
jury, told them the law was, that if death ensued
from a blow unlawfully given it was manslaughter,
even without malice or intent to kill, and that there-
fore the question for them was whether the blow
was given unlawfully—i.e.,
or whether it was merely given casually and in a
frolic in which both the men were engaged. A
good test for them to apply was whether, if the
deceased had lived, he would have sued the pri-
soner in an action for an assault; if not they should
acquit the prisoner.
The jury found the prisoner not guilty.
A youth was indicted for a rape on a young girl.
Mr. Biron was for the prosecution ; Mr. Ribton
was for the prisoner.
The prosecutrix and the prisoner were both in
the service of the same person, a farmer in this
county, and one evening, the prosecutrix having
been out, the prisoner met her, and, according to
her evidence, committed the offence. Slight
screams were heard by one of the witnesses, but not
such as to attract much notice, and the girl on her
return home made no complaint to her mistress, and
next morning made the prisoner's breakfast as
usual. Afterwards, however, her mistress taxing
her with her clothes being dirty, and pressing in-
quiries on the subject, she made for the first time
the present chargo.
The jury found a verdict of not guilty.
In the course of the above case a point of criminal
procedure of some interest was ruled.
The girl's mistress did not appear, but her hus-
band stated on oath that she was pregnant and
unable to attend. On cross-examination it was
elicited that he was unable to state how far ad-
vanced she was, and it also came out that she was
about the house attending to her duties as usual,
and had prepared breakfast for him that very
morning as usual, and had not yet been confined to
bed. He, however, stated that a fortnight ago he
had driven her to Maidstone, and that she had suf-
fered somewhat in consequence.

Upon this evidence it was proposed on the part of
the prosecution to put in her deposition.
Mr. Ribton, on the part of the prisoner, objected
that the deposition was not admissible under the
statute allowing such a course where the witness
was unable to travel, there being no sufficient proof
that she was so unable, especially as no medical
man had been examined. The learned counsel, at
some length, urged that it was a question of great
importance to the administration of criminal Jus-
tice that witnesses should be examined in person,
and it would be dangerous, especially with refe-
rence to the Courts of Quarter Sessions throughout
the country, to allow depositions to be substituted
for oral evidence upon such • light proof of the
inability of the witnesses to attend in court.
The learned Baron, after some consideration, said
he should allow the deposition to be read; but at
the same time intimated that he should, if the pri-
soner were convicted, probably reserve the point for
the consideration of the Court for Reserved Crown
Cases.

The prisoner, however, as already stated, was
acquitted, so the point cannot come before the
Court above, and it is mentioned as one of great im-
portance in the administration of criminal justice.
The Court was occupied most of the day with
cases unfit for publication. In the course of one of
these cases, a charge against two boys for abusing
a girl under 10 years of age, a point of procedure
arose. A policeman had been bound over to prose-
cute, who had employed no attorney, and, conse-
quently, no counsel had been instructed.
The depositions were banded to Mr. F. J. Smith
by the Court, to conduct the case.
Some difficulty arose as to the proof of the girl's
age, and there was no direct evidence of it.
The learned Judge said the jury might judge of
the age of the child from Choir o-wo viovr, but thou
they must be quite satisfied of it, and if there was
any doubt they must give the prisoners the benefit
of it.

The jury found a verdict of not guilty.
The learned Judge said this case showed the
necessity for a public prosecutor. The policeman
who had been bound over to prosecute was not
bound to employ an attorney (unless ordered to do
so), and of course was not supposed to know the
rules of evidence. The result had been that the
case had not been properly got up ; and had broken
down from the want of the proper evidence being
adduced.
The prisoners were then discharged.

MIDLAND CIRCUIT-LINCOLN, July 28.
CIVIL SIDE.

(Before Lord Chief Justice Erie and a Common
Jury).

RICHMOND V. SMITH.

This was an action for the seduction of the plain-
tiff's daughter and servant. The defendant pleaded
" Not guilty," and that the daughter was not her
father's servant.

Mr. Sergeant O'Brien and Mr. Flowers ware
counsel for the plaintiff, and Mr. Macaulay, R.C.,
and Mr. Stephen for the defendant.
Mr. Sergeant O'Brien said that the plaintiff
sought compensation for a very serious wrong done
him by the defendant in the seduction of his daugh-
ter, and the loss of service consequent upon that
seduction. The plaintiff was a publican at North
lett°ollbl
-,4 crton, and the defendant at the time of the se-
uliction ii, d ,
the 1 - c at Fenton, and about half a mile from
withPtahlre'ti.ff.. The defendant had been acquainted
chilknotiaintiff for a number of years, and indeed
d. lea:he daughter ever since she was a
series of lay before the jury some of a
service of hi, t4i. the whole of which were at the
the defendant •
if he required them, in which
solicitedtitne. the young girl to meet
him at various
and in one
so, and of writing to lie was in the habit of doing
of her letters she inforra,4rasienailY,
fr, family-Way. In reply the Z that she was in the
defendant wrote as kJ-

lows :—" If what you say is true, it will be easy to
stop it." These, said the learned sergeant, are the
letters. This is the manner in which this person of
mature years was in the habit of • addressing this
child. The deface to this action might be that the
girl was of loose character, and her father disentitled
to compensation for her seduction. A man who
would avail himself of the position which he had to
seduce his neighbour's daughter was quite capable,
for the purpose of saving his pocket, of instructing
his counsel to malign her character.
The daughter, Ellen Richmond, a girl of 19, said
that she had known the defendant from her child-
hood, and that when she was about 17 he met her
in Lincoln, and induced her to take a walk into the
country ; that he had taken advantage of a lonely
spot to effect her ruin, but that what then took place
was against her will. The intimacy between them con-
tinued until she was delivered of a child in Aprit last,
the paternity of which defendant had tried to induce
her to saddle on another 'erson. It appeared that
the girl's occupation as a dressmaker took her occa-
sionally from home, and that she had slept for
months together away from her father's house, to
oblige, as she said, the timid housekeeper of some
neighbour.

Mr. Sergeant O'Brien, in summing up, called
upon the jury to give exemplary—nay, vindictive
—damages.
Mr. Macaulay said that the plaintiff had not been
called, and that no explanation of his absence had
been offered. The jury would see what sort of per-
son the girl, whose seduction had been effected in a
field or under a hedge, was. She seemed to have
become attached to the defendant and to have in-
trigued with him, and in so doing she was as much
a traitress to the defendant's wife as the defendant
himself. Had her father taken adequate care of
her ? He was unable to show that he had,
and so he had been kept out of the witness-
box, and the case had been allowed to rest on
the unsupported testimony of the girl. Her
statement as to her having slept at a neighbour's
house was quite uncorroborated. The case
was one of great immorality no doubt, and
a grave social wrong had been done by the de-
fendant, but the father ought to have satisfied the
jury that he had exercised due circumspection in
respect of this loose and immoral young woman.
The Lord Chief Justice said the jury were not to
express by their verdict any censure on the defen-
dant's conduct. The plaintiff was not to gain be -
cause the defendant had behaved shamefully to his
wife and children. The defendant would be called
upon to account for his conduct before another tri-
bunal, but the jury had no power to punish him for
immorality. If the father had sent the girl out,
careless of what became of her, he would not be
entitled to claim damages. The imputation on him
was that the daughter was left in an exceedingly
unguarded manner. Still, the care which be be-
stowed necessarily depended much on the position
and circumstances of the persons.
The jury, after some deliberation, found a ver-
dict for the plaintiff.—Damages, £2O.

CROWN COURT.
(Before the Lord Chief Baron.)
Elizabeth Vamplew, aged 13, a servant, pleaded
not guilty to an indictment charging her with the
wilful murder of Kate Mary Taylor, an infant
about ten weeks old, by administering a certain
poisonous substance, called Battle's Vermin Killer,
at Alvingham.
Mr. Sargeaunt and Mr. Cave conducted the pro-
secution ; the Hon. E. Chandos Leigh, at the re-
quest of his Lordship, watched the case for the
prisoner.
Mr. Sargeaunt, after desiring the jury to dis-
miss from their minds any reports they might have
heard, and to confine their attention to the evidence
alone which he was about to adduce, stated very
briefly the facts of the case, excepting only state-
ments made by the prisoner, which he thought it
better should be heard by the jury from the mouths
of the witnesses to whom they were made.
The deceased was the child of a respectable
farmer and his wife living at Alvingham in this
county. The household consisted of the father,
Edwin Taylor, his wife, the prisoner, who had
entered the service without a character, and Betsy
Clarke, the kitchen-maid. On the 10th inst. the
prisoner had leave from her mistress to go to a
school feast at Grimbleby, a village about four
miles from her home. During that day the mother
of the child took charge of it, and it was in perfect
health. The prisoner returned about eight o'clock
in the evening, and shortly afterwards the family
went to bed, leaving the child asleep on the
prisoner's knee downstairs. The child immediately
afterwards began to cry. The mother went down
and tried to feed it, but, finding that it refused its
food, she took it upstairs to her own bed, The
child still continued crying, and, as it grew
averse, the mother put it into a warm bath, but
it died soon after ten on the following morning.
In addition to these facts, which were proved by
the father and mother of the prisoner, the follow-
ing evidence was given :
Betsy Clark, with whom the prisoner slept on
the night of the 10th, proved that, upon hearing
that the child was dead, the prisoner merely said,
Oh, is it ?" and, on the day after, when in-
formed that a coroner's [inquest was to be held,
asked, " Will they know whether it's poisoned
or not ?" Clarke answered, " Yes ; they'll know if
they come." The prisoner replied, " How can
they know ? They are only men like master."
Nothing had previously been said about poison.
Wm. Mitchell, the deceased child's grandfather,
on going upstairs after tea, found the prisoner cry-
ing, and inquired the reason. She asked whether
they would commit her to prison. Mitchell said,
" I don't know; surely you have not given the child
anything ?" The prisoner answered, " I have given
it poison, but I did not think it would kill it so
soon." Mitchell inquired whether she gave the
poison in liquid or powder. She answered, "In
powder." He asked, " Why P" and she replied,
" Because I was tired of hugging the child about."
Mary Wright, wife of a grocer in Grimbleby,
proved that on the 10th the prisoner had come to
buy a doll, and had at the same time purchased a
3d. packet of Battle's Vermin Killer, saying that
her mistress had sent her for it, which was false.
When in the custody of the superintendent of police,
and on the way to the station-house, she said, "It's
a misunderstanding; it was white mercury that I
gave the child. I got it out of my mother's drawer
I when she was out."

A post mortem examination of the body was made
by Mr. Roe, a surgeon of Louth. The organs were
generally healthy. The stomach and intestines,
with their contents, were sent to Professor Taylor
for examination, and a minute portion of a grain of
strychnine was detected. The symptoms described
as preceding the death of the child were such as at-
tend death by strychnine, and do not accompany
death from natural causes. Battle's Vermin Killer
is a powder consisting of flour, coloured with Prus-
sian blue, and containing about three-quarters of a
grain of strychnine is the 3d. packet. One-six-
teenth part would be sufficient to destroy the life of
so young an infant.
The learned counsel for the prisoner elicited from
Professor Taylor that the brain of girls of the pri-
soner's age is sometimes affected by the occurrence
of irregularities of the system. In his address to the
jury on behalf of the prisoner the learned counsel
entreated the j ury not to attach too much importance
to statements made by the prisoner when under the
influence of terror, and when subjected to questions
which no magistrate, not even his lordship, had au-
thority to put. He contended that the evidence failed
to show that the prisoner had capacity to commit
the crime, or had acted with deliberate malice. She
had, it would rather seem, given the child what she
thousht UI sleep, and thin, which. ?lie
had stated, was rendered probable by the opinion
given by a nurse who had been called in and had
said that it had had some sleepy stuff given it. The
ury would take into consideration Profess or Tay-
lor's evidence respecting the manner in which girls
of the prisoner's age were liable to be affected.
His Lordship, before summing up the evidence,
adverted to a case which he remembered to have
occurred 60 years ago, in which it was thought
right to direct the jury to find a verdict of wilful
murder, and afterwards to recommend that an
immediate reprieve should be granted. It had then
struck him as a strange inconsistency that a pri-
soner should be rightly convicted ofwilful murder,
and at the same
time be deemed to deserve a remis-
sion of the sentence. The crimes of murder and
of manslaughter were in some instances very diffi-
cult of distinction. The distinction which seemed
most reasonable consisted in the consciousness that
the act done Was one which would be likely to cause
death. No one, however, could commit murder
without consciousness of it. The jury must be
satisfied, before they could find the prisoner guilty,
that she was conscious, and that her act was deli-
berate. They must besatisfied that she had arrived
at that maturity of tha intellect which was a neces-
sary condition of the crime charged. Having com-
mented on the facts, bis Lordship left it to the jury
to give such a verdict as in their consciences they
thought the truth and justice of the case required.
Verdict " Guilty cf manslaughter." Sentence
deferred.

WESTERN CIRIJUIT.—Ex.ETER, July 29.
CROWN COURT.
(Before Mt. Justice Keating.)
Thomas Newman, the Post-office clerk, who was
convicted yesterday d stealing a post letter and two
half-sovereigns
which it contained, was this morn-
ing placed at the bar to receive sentence.
clearest
The learned Jude addressed him with much feeli-
rjg
evidence '—Y :—You
uf
st hoveea i ng post
bee?A
convicted
letterandthe
upon the
En 0
ey t
contained, and I cannot believe for a single moment
that this was your first offence. The irregularities in

the Post-office were so frequent, and led to so many I
complaints, that at length those means were resorted I
to which ended in your detection. You have been
many years in the service of the Post-office, and I
much fear that this system has prevailed for a con-
siderable time. The difficulties of detection ara
great ; long acquaintance with those difficulties
enabled you to escape detection for a considerable
time, but at length you were detected. When the
immense importance of preserving the Post-office
communications inviolate is considered, it becomes
absolutely necessary—and it has been felt so by all
the judges—to make an example of every person
who shall be convicted, in order that the servants
of the Post-office may clearly understand that when
they break the confidence reposed in them they
must expect to be severely punished. I have taken
time to consider if I could make an exception in
your case in consequence of the recommendation of
the jury; but, inasmuch as the Post-office autho-
rities only employ those who have received good
characters, it is that good character that enables
the servants of the Post-office to commit these
thefts. You must be kept in penal servitude for
four years.
The prisoner appeared to be almost prostrated, as

was evident he did riot expect to be convicted.
George Woo'icombe, a letter-carrier in the service
of the Post-office at Totnes, pleaded " Guilty" to an
indictment charging him with stealing a post letter
and two half-sovereigns.
The learned Judge told him that he was not an
educated man, and had not had the advantages of
the unhappy man who had just left the bar; he
would therefore be kept in penal servitude for three
years.
Charles Joseph Pitcher was indicted for the
manslaughter of his wife, Mary Ann Pitcher, on
the 9th of April, at Plymouth.
Mr. Cox prosecuted, and Mr. Carter defended
the prisoner.
This was one of the melancholy results of drink.
These people went early in the morning to a beer-
house in Plymouth, and began drinking. They,
continued drinking. They soon commenced quar-
relling ; they struck each other ; and these things
continued till the afternoon, the woman being fre-
quently on the floor, and the prisoner kicking her
till she became insensible. She bled very much,
and the bleeding continued until she died in the
course of the afternoon.

It was shown that the deceased had taken up the
poker and shovel with which to strike her husband,
because he would not give her money to get more
drink. She was like a mad person. The prisoner,
when sober, was an industrious, quiet man.
The jury found the prisoner guilty, but recom-
mended him to mercy on account of the provocation.
The learned judge said this was another instance
of the effects of drink, and that from being a
quiet man he had in consequence of that drink now
become a convicted felon. The sentence would be
six months' imprisonment with hard labour, and he
trusted this would be a warning to him for the rest
of his life.
. Ann M'Gregor, alias Honor Matthews, was in-
dicted for stealing gold and silver jewellery, silver
and plated spoons, forks, teapots, candlesticks, snuf-
fers and tray, wearing apparel, and other articles,
the property of John Evans Bowden, her master,
on July 10.
Mr. C. A. Tuner prosecuted.
It appeared that Mr. Bowden was a gentleman
living at Newton Abbotts. The prisoner was his
servant. She had been recommended to him from
the workhouse. On July 10 Mr. Bowden and his
family went from home for the day, leaving the
prisoner in the house. On their return in the even-
ing, about nine o'clock, the prisoner had gone, and
they found every room in the house had been ran-
, sacked of almost everything that was portable, fill-
ing several baskets. The value was upwards of
£lOO. Inquiries were made, and several of the
stolen articles were found to have been pledged at
pawnbrokers at Exeter. The prisoner was traced,
and was discovered in a cart near Saltash, having with
her a reticule and a box, which contained a large
quantity of stolen property. It was proved that
in 1860 the prisoner had been convicted in this
court of a very similar robbery almost equally
large in amount, and was then sentenced to six
years' penal servitude.
The prisoner was convicted, and was sentenced
to ten years' penal servitude.
CIVIL SIDE.

(Before Mr. Justice Williams and a Common Jury,
WOODROW AND WIFE T. SCOTT. _ _ _

Mr. Carter appeared for the plaintiff; Mr. Col-
lier, Q.C., and Mr. A. Turner, for the defendant.
The plaintiff in this case was a small farmer liv-
ing in the neighbourhood of Germansweek, in tkis
county, and in the month of July, 1860, had occa-
sion to go with his wife to Teignmouth on some
business; they walked there, and having transacted
their business returned, taking with them a young
horse, which they rode by turns. On arriving at
about nine o'clock in the evening within a mile and
a half of Moreton Hampstead, the wife being on
the horse, they heard the sound of another horse
galloping along the road. The husband called to
the wife to " haul" in to the side of the road, which
she did, but the defendant came riding up very fast,
and instead of keeping in the road he passed be-
tween the wife and the hedge, and in doing so, with
a whip or stick that he had in his hand, he struck
the young horse on which she was riding, which
caused it to start off. The defendant then turned
round, and struck the horse in the face another
violent blow, which made it spring forward, on
which the wife was unseated and thrown under the
horse, her foot caught in the stirrup, and she was
dragged for some distance along the ground. She
was ultimately picked up senseless, having sus-
tained some very serious injuries from which she
alleged that she still suffered, and had been ren-
dered unable to perform her household work as
before.
The plaintiffs and other witnesses were called to
prove the above facts, and, in order to identify the
defendant as the man who struck the horse, the
plaintiff,'swore that he was riding a cream•coloured
horse, and that he noticed his manner of riding.
He also swore that he and his wife met only one
person on the road, and that person had passed up
a lane leading to the defendant's farm.
The female plaintiff convulsed the Court with
laughter by the answers she gave in the course of
her cross-examination. She was asked whether
she did not drink a little at times. She said, "No
I dont; and if thee dost say I do, thee be'est a liar;"
and as Mr. Collier generally has a glass of cod
water before him, she added, " I should like to
know what thee hest got in that glass." Upon Mr.
Justice Williams asking her a question she said,
"My good man, "dont ask me such questions."
The defence was that the defendant was not the
person ; that although he was on the road that
night at about the time alleged he had met no one ;
that he was riding a light chesnut horse ; that the
plaintiff and his wife had at first stated the horse
the man who caused the accident was riding was a
gray horse, and other witnesses of the plaintiff
proved that about the same time they had seen a
man on a gray horse going in a different direction
from the plaintiffs house and coming from the seat
of the accident.
The defendant and other witnesses were called to
prove these facts.
The learned Judge told the jury that the ques-
tion was one entirely for them as to whether they
believed that the plaintiff had sufficiently proved
the defendant was the man, and as to one part of
the alleged special damage—viz., that the plaintiff
had been deprived of the comfort of his wife's so-
ciety—remarked that if the lady conducted herself
at home as she had done in court he did not think
tho jury would cumider him entitled to heavy
damages on that score.
The jury found a verdict for the plaintiff—Da-
mages, .£5O.