The Sun.
London, England, 1862-04-24 00:00:00

IHE SUN, LONDON, THURSDAY EVENING, 'APRIL 24, 1862.

LAW INTELLIGENCE.—Apra 23.

COURT OF COMMON PLEAS.
KENNEDY V. BROITN.-THE SWINFEN CASE.

This was a case which has already created a good
deal of attention, the action being by a barrister
against his client, to recover £20,000 upon an ac-
count stated between them in reference to services
rendered in conducting proceedings at law and in
equity with the view of establishing a title to the
Swinfen estates; and as soon as it was known that
the matter was about being brought before their
lordships the court became crowded, principally
counsel anxious to hear what would take place.
Mr. Macaulay, Q,C. (with him Mr. Field), said
that the case was tried at the last Warwick Assizes
before Lord Chief Justice Cockburn, when the ver-
dict was for the plaintiff for £20,000, but his pre-
sent motion was for a rule calling upon the plaintiff
to show cause why this verdict should not be set
aside, and a nonsuit entered, and also why in the
alternative there should not be a new trial
upon the ground of misdirection, and that the
verdict was against the weight of evidence.
The plaintiff was a barrister of many years
standing, and he brought this action against
Mrs. Broun, who was formerly Mrs. Swinfen,
claiming £20,000, and the only contract alleged
was one upon an account stated. Mrs. Broun had
been a party in a case ta: great celebrity—that
of Swinfen v. Swinfen—which came into this court
upon an application for an attachment to enforce
an agreement of compromise made by her counsel
for her. Mr. Kennedy's case was this—that he,
being a barrister living at Birmingham, and having
friends and relations in the county to which Mrs.
Swinfen belonged, he, after the trial at Stafford, in
March, 1856, became acquainted with her, that he
met and conversed with her at a friend's house, and
afterwards had a good deal of conversation with her
at her own house upon the question whether the
agreement entered into by her counsel was binding
upon her or not ; that a few months after she wrote
to him, stating that she had made up her mind to
abide by the agreement and take the £l,OOO a year
which was offered; and she invited Mr. Kennedy
and his daughter to visit her at her house. This
was in June or July, 1856. He said that he did not
go himself, but he sent his daughter, and gave her
an envelope addressed to Mrs. Swinfen, which con-
tained no letter, but had written in it the word
" Pause." Upon that they came in correspondence
again, and he diverted her from the compromise,
and under his counsel she took steps to dispute the
binding character of that agreement. Mr. Kennedy
stated that he stipulated that if he came into the
matter as her counsel he should have the entire car-
riage, conduct, and control of the whole of the pro-
ceedings, that he should have the appointment and
displacement of attorneys, and the nomination of
counsel, and that he should lead on all occasions
where any other counsel was required in court
besides himself. There was no document contain-
ing these terms, and the only document that threw
any light upon the matter was a letter written a
year afterwards by Mr. Kennedy to Mr. Simpson,
Mrs. Swinfen's solicitor, at Lichfield. The state
of things at that time was that the rule for an
attachment had been argued and disposed of in
November, 1856; in 1857 a bill was filed in
equity toenforce the agreement, which cause was de-
cided by the end of 1857, and there was the trial at
Stafford in May, 1858. The letter was written on
the 15th Feb., 1858, and in it Mr. Kennedy, in allu-
sion to a statement, said that he did not know
what it meant, as he had never asked for or
mentioned anything about fees, except that he be-
lieved he told him at the outset that he undertook
the case out of friendship for Mrs. Swinfen. It
had, however, occurred to him, that if he did not
receive fees in the ordinary manner, there might be
a difficulty in getting them from the adversary if
costs should be allowed. He concluded by saying
that he certainly should return any fees to Mrs.
Swinfen which were not allowed, but he did not
desire to spare their opponent. Mrs. Swinfen's
case watt, lhat'Mr: Kennedy entered into the mat-
ter without any terms as to money, and tegriitify
his own ambition. Mr. Kennedy, in his evidence,
went on to saythat, having undertaken the conduct
of Mrs. Swinfen's litigation, she said to him, " You
are going to do great things for me, and I am not
able to remunerate you now, but I will do so here-
after." Upon which Mr. Kennedy said, "I am per-
fectly aware that I must wait." He went on to say
that he conducted and managed the matter in its
various stages, and that as it progressed the lady
restated her intention of remunerating him largely
whenever she should be in a situation to do so.
Further, that when the second trial at Stafford ap-
proached, Mrs. Swinfen said that if he succeeded,
it should be as good as £20,000 to him, and that
after the verdict she said, "You have won your
£20,000." Upon which he said, " There is a great
deal more to be done; we have to opposed the ap-
plication for a new trial, and so on." Mr. Ken-
nedy also said that before the second trial at
Stafford, a great deal took pities as to compro-
mising the suit with the heir-at-law, and that
he advised Mrs. Swinfen to accept the
estate for life, if she could get; but that
she set her face against such an arrange-
ment, because she said that if she got it for life
some member of the family would poison her. He
suggested that if she got the estate for life she
should remove to London, and should settle upon
him an annuity, but nothing came of it. An unsuc-
cessful motion for a new trial was made in Chan-
cery, and the suit came to an end in March, 1859,
and Mrs. Swinfen was placed in firm possession of
the estate. Mr. Kennedy produced a vast number
of letters written to him by Mrs. Swinfen, down to
the latter end of March, 1859, at which point he
said there was a gap in the correspondence; and un-
fortunately the gap occurred at the time that she
was coming up to London in reference to the al-
leged statement of the account which was the sub-
ject of the action. Mr. Kennedy stated that he
had destroyed these letters in a momentary fit of
anger. There was one letter, or fragment of a letter,
in reference to her intended arrival in London on
the 24th April, in which there was this expression,
"And I now only wait to know what it is for which
you want me," he having, in his evidence, stated
that he asked her to execute some security, in re-
spect of what he had done for her. He called upon
her when she arrived in London, and then took
place the conversation relied upon as constituting
the account stated, and it was the most singular
statement cf account that was ever presented to a
jury. It consisted of one leading question put by
the plaintiff to his own client, "Do you consider
you owe me £20,000 ?" and the client saying,
" Certainly, but you know I can't pay you.' To
make the narrative perfect he must say that Mr.
Kennedy's statement was, that having solicited her
to come to London to execute the security he met
her, and said, "Patience, you know what I have
already told you by letter ; m 7 position is a perilous
one ; I shall soon have expended my capital, and I
think that you should give me security for what you
I never asked you for a
promised me. You know
writing to confirm your promise, but for the sake
of my family. let me understand you. What do
you mean to give me ? You mentioned several times
£20,000. Do you consider you owe me that sum ?"
She said, " Oh, yes. but you know I cannot pay at
present." A mortgage was talked of, which she
objected to; and she said, "I have left you the bulk
of my estate." He said, "You know as well as I
do that a will is no security;" and she said, "Be-
tween us it is," and she took his hand and asked
why he looked so gloomy. And then she got up
and said, " If we are going to the Zoological-gar-
dens there is no time to wait." In the gardens they
sat down, and he said, " Now, Patience, would you
mind give me by deed what you said you had given
me by will ?" and she said, " I always meant it for
you and your family. I offered it to Capt. Swin-
fen, and he refused it ; and now I give it to you."
The learned counsel continued by saying that the
statement which he had made was taken from the
Chief Justice's summing up, and the learned judge
went on to say that Mrs. Broun contradicted it in
very positive terms. The only question which the
judgewas, which of the two wit-
nesses the plaintiff or the defendant,
left
they t o
believed,the
as to the version given of that conversation; and he
said that, supposing that the conversation which the
plaintiff deposed to had taken place, whether that
would give him a right to retain theverdict he would
obtain was a question which need not be then dis-
cussed. Mr. Kennedy west, on to say that she wil-
lingly assented to give his: a deed of giftof the rever-
sion of the estate, and that he drew up such a deed,
which she requested should be executed privately ;
and further, that Mr. Colliss, a solicitor, a friend of
Mr. Kennedy, whom he had introduced into the case
as attorney for Mrs. Swinfen, should witness it. Mr.
Kennedy went down the evening before, and on the
morning of the 10th of May, 1859, the lady called at
Mr. Colliss's office, found the deed already engrossed,
and executed it. From that time Mrs. Swinfen and
Mr. Kennedy continued upon the most intimate terms
of friendship until September or October in last
year, when a breach took place under circumstances
which were peculiarly painful, and which attached
to Mr. Kennedy an amount of opprobrium which
it was distressing to think of as attaching to any
human being. He had been in the habit of visiting
at Mrs. Swinfen's constantly, and a good deal was
said about the terms which really subsisted between
them.

3e
The Lord Chief justice—The cardinal question
was whether there was an account stated upon
which an action could be maintained, and these
details did not cogently bear upon that point.
l‘ri
largest eabe:eulil deduction But the question was raised who
from whose credit there was to
-
misconduct. upon account of
The Lord Chief Justice Admitted that this was so.
wasb
e thi tMbvyd—,
supposed
s

them in a form of severity. They teok their risk.
The sentence upon Thompson was four years' penal
servitude, and upon Dawson, of whom so much was
not known, two years hard labour. The Court
would order a reward of £2 to the witness Wilson,
which they thought as he had recovered the pro-
perty, the prosecutors ought to increase.