The Sun.
London, England, 1859-07-05 00:00:00

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'7
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COURT OF EXCHEQUER.
(Sittings at Guildhall, before Lord Chief Baron
Pollock and a Special Jury.)
SWINFEN V. LORD CHELMSFORD (LATE SIR F.
THESIGER.)
This case, which has for some months past been
looked forward to with great anxiety, came on for
hearing. The Court was densely crowded, and a
large number of persons vainly sought admission.
Mrs. Swinfen, the plaintiff, with two or three lady
friends, were accommodated with seats in the body
of the Court. Lord Chelmsford sat with his coun-
sel within the bar. The Earl of Shrewsbury and
Talbot and!, Mr. Haliburton, M.P. (Sam Slick),
occupied seats on the bench.
Mr. Kennedy, the Hon. George Denman, and
Mr. M'Mahon, M.P., were counsel for the plaintiff;
Sir F. Kelly, Q.C., M.P., Mr. Bovill, Q.C., M.P.,
Mr. M. Smith, Q.C., M.P., and Mr. Ellis were for
the defendant.
Mr. Denman opened the pleadings. The declara-
tion stated that the plaintiff, Patience Swinfen,
sued the Right Hon. Frederick Lord Chelmsford;
that Samuel S winfen decreed all his estates to the
plaintiff, who was his daughter-in-law, and her
heirs ; that after the death of the testator, Frede-
rick Hay Swinfen, claiming to be entitled to the
estates as heir-at-law, filed a bill in the Court of
Chancery, praying that an issue might be directed
to try the validity of the decree ; that the Master
of the Rolls ordered an issue, at which the now
plaintiff should affirm, and Frederick Hay Swinfen
should deny the validity of the will ; that the issue
was tried at Stafford, before Sir Cresswell Cress-
well ; that the defendant being then a barrister,
was her leading counsel, yet that he, without her
authority and against her will, and wrongfully
and fraudulently, and contrary to his instruc-
tions, entered into and concluded a compro-
mise, and signed a paper set out in the decla-
ration, and consented that a juror should
be withdrawn, the terms being that the estate
should go to Frederick Hay Swinfen on the
now plaintiff being secured £l,OOO a-year. The
second count, like the first, stated that,the defen-
dant had been retained as the plaintiff's coun-
sel; that after the commencement of the trial Sir
Cresswell Cresswell, the judge who tried the cause,
privately, clandestinely, and illegally communicated
with the defendant as the counsel for the plaintiff,

and gave him to understand that he, Sir Cresswe
Cresswell, had formed an unfavourable opinion o
the plaintiff's case, and that she would probably
lose the verdict, for the purpose of intimidating the
defendant and inducing him to compromise the case,
and thereupon the defendant, without the know-
ledge of the plaintiff, although she required him to
proceed, being unduly and improperly influenced
by the said judge, did unduly and wrongfully and
fraudulently become a party to the purpose of the
judge, by reason of which a juror was withdrawn
and the trial was not proceeded with. The de-
claration then stated special damages, and the
plaintiff claimed £lO,OOO.
The defendant as to the whole of the declaration
pleaded not guilty. As a second plea to the first
count the defendant said that he entered into the
compromise in good faith and without fear, and in
the belief that he had full authority from the plain-
tiff. In a third plea to the second count, he denied
that Sir Cresswell Cresswell did privately, clandes-
tinely, or illegally communicate with him. In a
fourth plea, as to the second count, he denied that
he did wrongfully or fraudulently, or in collusion
with Sir Cresswell Cresswell, enter into the said
arrangement as alleged. In a fifth plea to the
second count, the defendant said that the plaintiff
did not require him to proceed. In a sixth plea,
the defendant said that when he entered into the
agreement he did so on good faith, and in the belief
that he had full authority from the plaintiff. In a
seventh plea to the second count, the defendant
said that after he had been retained, and after he
had advised the plaintiff to enter into a compromise,
and she had refused, Charles Simpson, the plaintiffs
attorney, communicated to him,a fact, which, in his
judgment, rendered it necessary and expedient to
enter into a compromise, and that acting to the best
of his judgment, and in the interests of the plain-
tiff, and without fraud, he had entered into the
agreement alleged; and for a last plea, that he was
not retained in the form alleged. On these pleas
issue was joined.
Mr. Kenned 3., rose at five minutes past 11 o'clock
to address the jury, and continued speaking until
three o'clock, with the exception of 10 minutes,
during which the Court adjourned. Much of his
address consisted of dry details.
Mrs. Swinfen was called and examined by Mr.
M'Mahon, M.P. She said—l am plaintiff in this
action. I and my husband, Henry John Swinfen,
went to Swinfen Hall in 1851, and lived there till
the death of his father-in-law, on 'July 27, 1854.
I saw my father-in-law every day, and many times
in the day. My husband died on the 15th of June,
1854. After that I sent for Mr. Charles Swinfen
and his wife. My father-in-law made a will on
the 7th of July, leaving all the real estate to me.
In the beginning of 1855 steps were taken to dis-
pute the will. My father-in-law knew that my
husband had left a will leaving his property to me,
and he approved of that will. He knew that if my
husband died before him that will would be inope-
rative. An offer of compromise was made to me
by the heir-at-law. I went to the Stafford Assizes
in March, 1856. The trial commenced on Satur-
day, the 15th of March. I was examined as a wit-
ness. I was under examination three hours and a
half. I was cross-examined by Sir Alexander
Cockburn. I was asked whether Mr. Swinfen, my
father-in-law, had ever fondled me. There were
five witnesses examined that day, but none of the
attesting witnesses were examined. At the ad-
journment of the Court for the day, the Judge
asked Sir Frederick Thesiger what timele expected
the expected the case to last. Sir F. Thesiger said
he expected to conclude on Monday. Afterwards
went over to the Swan with Sir Henry Durrant,
and fetched by Mr. Cole and asked to go to Sir F.
Thesiger's chambers. I went there ; Mr. Simpson
was not there. Sir F. Thesiger advised me to
accept a compromise. I said I would not
do so, as I thought it better the case should go
to the jury. He said he had received an inti-
mation from the Attorney-General with an offer
of £l,OOO a-year in addition to the mansion.
I replied I objected to any compromise, as I
wished the case to go to the jury and uphold the
will. Sir F. Thesiger said he had received infor-
mation from a high quarter, and it would be better
to accept something from the wreck, as the case
was likely to go against me. I understood him to
mean the information came from the judge. I re-
quested that Sir Henry Durrant should be sent
for, he is my husband's cousin ; he was at the
Swan at the time. Sir Henry Durrant came over,
and Sir F. Thesiger repeated what he had said to
me. Sir Henry Durrant said I had better consider
a little before I consented. On the Sunday I went
to Stafford and saw Mr. Simpson, and never gave
him authority. to consent to a compromise. On
Monday morning I went with Sir H. Durrant to
the Court-house, when Sir F. Thesiger said that
he had effected a compromise which he thought
was satisfactory. Sir H. Durrant asked by whose
authority, and Sir F. Thesiger said by mine. I
deny that I gave any authority for the compromise.
After the compromise two of the tenants refused to
pay their rent, £l,OOO a year. The whole rental
was £1,700 a-year. There was £3OO a-year to be
added for the hall. After the compromise I was
subjected to various proceedings as to the attach-
ment in the Common Pleas and in Chancery. I
paid my attorney- £5OO.
The Lord Chief Baron said—Mrs. Swinfen, I
hope you will not be detained so long in this court
as you have been in others.
Cross-examined by Sir F. Kelly--The only
question
on the trial was, whether my father-in-
law was capable of making a will. On the 15th of
March I was examined with Mrs. Rowley and Mr.
Meesham ; a Mr. Reed was also examined. On
Mrs. Rowley's cross-examination by the then At-
torney-General, Sir A. Cockburn, she admitted she
had written a letter in which she stated her opinion
that old Mr. Swinfen „
was, from the loss of his
son, incapable of knowing what he was about. The
witness admitted that the letter had been read to
her by Mrs. Rowley, and witness said that will do.
In the examination in chief, she had stated that old
Mr. Swinfen was conscious to the time of his death.
The Chief Baron—How old was Mr. Swinfen ?
Witness—Eighty-one.
Sir F. Kelly—Did not Mrs. Meesham say she
had stated that Mr. Swinfen did not know that his
son was dead, but believed it was you ?
Witness—She did.
Sir Fitzroy Kelly proceeded with the cross-
examination as to what the plaintiff had stated in
her evidence at the second trial, as to Mrs. Taylor
stating that Mrs. Francis William Swinfen had
sent a message desiring to see Mr. Swinfen, and
that she brought down a message that Mr. Swin-
fen refused to see her. Mr. and Mrs. Charles
Swinfen were in the house from June up to the
23d of July, and Mrs. Charles Swinfen was in the
room when the message was brought down. With
regard to Mr. Simpson, the witness stated she bad
no communication between . the Saturday and the
Monday morning with him, and gave him no
authority to consent to any compromise. Scarcely
ever had any conversation with Mr. Simpson. Did
send to him-between the 28th of June and her hus-
band's death.
Sir F. Kelly—Did you or did not you and Mr.
Charles Swinfen give directions to Mr. Simpson to
make inquiries as to a commission of lunacy being
issued against old Mr. Swinfen?
Mrs, Swinfen—l never gave any such directions,