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

LAW INTELLIGENCE-July 5.

COURT OF EXCHEQUER.

(Sittings at Guildhall, before Lord Chief Baron
Pollock and a Special Jury.)
SWINFEN V. LORD CHELMSFORD (LATE SIR F.
THESIGEF..) •

The case for the plaintiff having closed,
The Lord Chief Baron asked Mr. Kennedy if he
wished to offer any evidence on the second count,
whiCh was to the effect that the judge illegally ex-
pressed hi•nself to the defendant, Sir F. Thesiger,
the counsel for Mrs. Swinfen, that the case was
going against him, and that upon such communica-
tion he, Sir Frederick, compromised the matter.
Mr. Kennedy said that he had proved every
word of the count.

Sir F. Kelly, in a court literally crammed to suf-
focation by members of the bar, rose to reply, and
asked if there was any evidence whatever to go to
the jury.
The Lord Chief Baron said that he had not the
slightest doubt that there was not a particle of
evidence upon the second count.
Sir F. Kelly proceeded with' his address, and
said he hardly knew what course to take. For the
first time in his experience, extending over half the
period allotted to man, he heard a gentleman de-
nounced by a member of the bar in language ill-
befitting even the atmosphere of the Old Bailey.
A nobleman and a gentleman, himself one of the
brightest ornaments in his profession, had been
stigmatised in a manner that was perfectly shock-
ing to hear. Even the. Lord Chief Justice, a man
whom 'they all respected, had not escaped, whilst
the very judge who tried the case had been held up
as a brute for his conduct by the learned counsel
on the other side.
Mr. Kennedy appealed to the Court whether he
had used such ii phrase. -
Sir F. Kelly proceeded to say that such was the
way in which the case had been conducted. He
would tell the jury that this case was one of the
greatest importance, involving as it did the liberty
and independence of the law. Whenever that liberty
and independence disappeared, whenever juries
could be intimidated and controlled, they might rely
upon it that a blow would be struck at the liberty
and independence of the subject which would not
be easily recovered. The noble lord who was
the defendant in this action was charged, at the
time he was counsel for the plaintiff, with
having betrayed the interest of his client for base
purposes, and had degraded hi 3 profession—a
really criminal charge. And it was brought against
a man who, while he was a.member of Ow bar, had
never done any one act to sully his own honour or
to cast a blot on his fair fame. The jury were
aware that the whole question of the trial in which
the noble lord was counsel arose on the construction
of a will which was made by Mr. Swinfen on the
7th of July, 1854. The heir-at-law filed a bill in
equity to set aside the will, and was supported by
the other members of the family. The learned
counsel then entered into a resume of the Swinfen
case, which has been so many times before the
public. The ground upon which the noble lord
had acted for the compromise was, that evidence
would, after the first day, have to be adduced before
the jury which would show that when Mr. Swin-
fen, sen., made his will he was over 80 years of
age, confined to his bed, and utterly unable to
manage his uwn affairs. Sir F. Thesiger felt that
he would not be able to contend successfully against
testimony of this kind, coming, too, from the
mouths of his own witnesses—he felt that when
they would prove that within a few days of the
making of the will by the testator, the memory of
the latter was so far gone that he could not be
made to understand that his only son was dead ;
his case was gone, and the best thing to do was to
compromiss it on the most favourable conditions he
could for his client. The other three counsel in the
case perfectly agreed with the course that had been
taken by Sir F. Thesiger. What decided Sir F.
Thesiger was certainly what he had learned from
the judge who had tried the case, in a few words
they had with each other at the close of the first
day's trial. Mr. Justice Cresswell, when at the
bar, was a very old friend of Sir Frederic Thesiger,
and when one had gone on the bench and the other
remained at the bar that friendship continued.
The words upon which such strange comments
were made were these :—Mr. Justice Cresswell had
said to Sir F. Thesiger, in a very confidential way._,
" Cockburn made a nice attack on your
lady witnesses yesterday." The learned counsel
then feared that this circumstance, coupled with
the evidence before alluded to, would give his case
a blow from which it could not possibly recover.
Lord Chelmsford, who had sat and heard all that
had been said about himself, had been charged as a
criminal by Mr. Kennedy, and one whom he (Mr.
Kennedy) had brought to the bar of justice. Mr.
Kennedy had dared to impute to his lordship that
he had endeavoured to stifle inquiry. To stifle in-
quiry ? Why, Lord Chelmsford would be called
before them, and Mr. Kennedy would have the
opportunity of proving his charges out of his lord-
ship's mouth, not only upon that, but every part of
his conduct. Mr. Whitmore, another counsel in
the case, was present when the interview was held
between Mrs. Swinfen and Sir Frederic Thesiger,
and strongly urged her himself to accept the com-
promise offered. Mr. 'Whitmore would also be
called to state his version of the transaction. He
even complimented Sir Frederic upon his discre-
tion in not alluding to the remarks of the judge in
reference to the attack on the lady witnesses. Mrs.
Swinfen went home, and the next morning sent
down a telegram thus—" The offer is refused."
That at once put an end to all further negotiations,'
and he was prepared to do his duty by his client.
Sir A. Cockburn never made any offer whatever,
but it is quite possible that they had had some con-
versation on the matter. Counsel often have con-
versations, on these will cases especially. They say,
" It is a pity that these people, who are relatives,
should litigate this. They will go on from trial to
trial until the whole of this little property is
wasted." Such conversations as that occur at all
times in these cases between counsel, and it was
probably such a one as led to the compromise in
question. From the time a counsel is retained in a
case, if there be one object more than another to
which political feeling and private friendship are
forborne for the moment, and laid aside, it is the
great object of getting a verdict for his client. Every
counsel knows what it is, and no counsel would
dare to compromise a case if he could by any
means obtain a verdict. It is the great object
for which they all struggle. Their reputation
and their peace of mind are bound up in their
success, and if they think there is no chance of a
verdict, the next thing they endeavour to do is to
make the best terms they can for their client. Sir
Frederic Thesiger was opposed by his great rival,
Sir Alex. Cockburn, now the Lord Chief Justice of
England, with all that skill for which he was so
famed, and he well knew that when Mrs. Charles
Swinfen was called the cause was gone. The Lord
Chief Justice would be called, and if Mr. Kennedy
dared to ask the question from him, the judge
would tell him that the verdict was in his hands,
but he had told the heir-at-law that Mrs. Swinfen
ought to be liberally dealt by, and hence the offer
of £l,OOO a-year. If there was any fraud in the
conduct of Sir Frederic Thesiger, then the
other counsel, judge, and jury were equally guilty.
Mr. Kennedy had charged Sir Frederic Thesiger
that, for the sake of attending to a case at Swan-
sea, he had " robbed" his client of her estate. Dur-
ing the 35 years he (Sir F. Kelly) had been amem-
ber of the bar of England he had never heard such
an imputation thrown upon anyone connected.aa u
withr
wthhee barn as Sirn
the law, to say nothing of a man
through such a brilliant career at
_one.
decr charge, too,
Frederic (Lord Chelmsford) heading _
examined
to say that such
had been made by a member of thedbar of England.swinfen
s'aitdiffTiinthe en
byLsoirrdFC.hicelerallsyf.ord was then gas and e
gaged as lead-
odfay. I did
vin.gscwoiunnfesnel. forT wthoeiapdlmajoiinsr:dmoinsst.hße
fiearsset
Rowley and Mrs.
Leichman—were.exa
not feel quite satisfied with the course things were
taking. In their cross-examination a letter was
read, which did not
i please me. I watched the jury,
and I thought the impression made upon them was
rather prejudicial to the case I had in hand. At
the close of the day I went up to shake hands with
old friend of mi
ne.
Some
the judge, who wasmaa verydehytheyn e
WSoomree reldmonaTtkrsecwoeureect.
Sir him,Cresswell Cresswell met
me the other day, and I think_
it but fair to state
it, and told me what I said, but I don't recollectte
it. The communication with the judge was more
that of a private friend, but I believed him to have
au unfavourable
A. Cockburn
of the case.
inCourt, impressionad toldhim
mi.twas a I saw Sir
great
pity that these people should litigate in this way,
as they were ati Ire •
ves. He said that they were
not unfriendly disposed. I then communicated
with counsel and attorneys, and I told them this
matter should be arranged if it could. I ordered
Mrs. Swinfen to be sent for, and she came. Mr.
Cole was present. I most certainly deny stating
that any offer whatever had been made by the other
side. I never said I had received a communication

high quarter,. or anytbing. rWit
2,s i*
i,
eve that.l had had any con. '4: likg; It
, judge. I did tell them and pr 47
upon Mrs. Swinfen the import go!. -pi-,./•
raise. lam sorry to hear that I '''/'
iit ./r
,Swinfen with-courtesy. I was Tel, -
she should compromise, as the case sti. ~... Links `
she said, "What do you propose,?'; and Mr.
.Alexander said something about " a thousand a-
year ~.
for your lice.". She said OA could do nothing -
without consulting a friend;`' Sir Henry Durrant.
He came, and the result was that she saidshe would
return to town and let me know the result by tele-
graph. I felt the jury was against us;. ond I felt
the pulse on the other side as well a I could, to see
what could be done. This was on the Saturday,
and the message came at two o'clock on the Sun-
day from Mrs. Swinfen, saying " The offer is re-
fused." We did not consider that satisfactory ; as
no offer-had been made, but at the same time I said
to Mr. Alexander, " Then we must fight it out."
On the Monday Mr. Simpson came and told me that
it was very necessary the case should be arranged,
for he had heard that. Mrs. Swinfen gave orders
that Mrs. C. Swinfen should 'be -refused admission
to the testator. I said " Vcry .;,;41,.. I will go to
the Attorney-General and offer to take £l,OOO a-
year," which I had every reason to believedie would
give. I spoke to him going into court, anithe agreed
to give us £l,OOO a-year. That was to be basis
of an arrangement. We had a long discussion
with the Attorney-General about the costs,
and they agreed to pay us £1,250. I tried
hard to get £1,500. After that Colonel Dyott, the
high sheriff, interfered, arid the Attorney-General
told me his client had broken off the negotiations.'
I spoke to him, and said it was very unhandsome.
I then requested Colonel Dyott to retire from in-
terfering with the case, as he was not interested ;
and he did so. I felt satisfied that if the case came
into court again, all hope of compromising it was
at an end. I was very anxious to have it settled if
I possibly could. I offered to take the responsi-
bility, as Mr. Simpson would not agree to it.' He
asked me to defend him against his ' client. I
thought, under the circumstances, that it was a
most belienciiirarratigetzient. The engagements I
had at Swansea did not enter for one moment into
my mind. Ultimately the basia -of a compromise
was concluded, and I put my initials to it.
Cross-examinedbaYff Mr. Kennedy.—The arrange-
ments case being tried on Satur-
between my clerk and that of the
. Ley nt
yeas s
Attorney-General, with, I presume, the consent of
the judge. I had not the slightest communication
before I left town, with the judge about the Swan-
sea case. I am happy to say the judges are all
friends of mine, and I might have written to have
had a case fixed for my convenience. I. have read
everything in the way of instructions that were
handed to me. Here are my notes I made on the
brief (pulling a large packet of papers from his
pocket.) I have not the least recollection of-what
the judge said to me at the time. I met him in the
Park a short time ago, and he told me what he said
was " I think Cockburn has damaged your female
witnesses." (Roars of laughter, which continued
some minutes, and in which his lordship and the
court joined.) I don't recollect that he said "The
verdict's gone," or " saving something from the
wreck." I had such a number of cases that one
very soon chased another out of my head. I saw
the Attorney-General on the Sunday at Stafford.
I dined at Lord Hatherton's, but I don't know
where I dined on the Saturday; certainly not
at Miss Sparrow's, for I havn't the honour
of the lady's acquaintance. (Laughter.) Nor
with Lady. Wilton. I don't know Lady
Wilton. (A laugh.) Nor with Lady Chetwynd.
These are all new acquaintances you are introduc-
ing to me. (A laugh.} I proposed £l,OOO a year
as a most advantageous arrangement. I cautiously
abstained from mentioning to my client what the
judge said to me.
Mr. Kennedy—Do you think it was a right thing
for the judge to speak to you in that way ?
Lord Chelmsford—l don't think I should be called
upon to offer an opinion on that question. •
This answer was followed by loud aemonstra- .
tions of applause in court.
The Lord Chief Baron—lf that occurs again I
shall order the court to be cleared. - -
Lord Chelmsford—l am very sorry, my lord, that
any answer of mine should have produced such an
interruption.
Cross-examination continued—l did not feel ,
bound to tell my client upon what grounds I based
my judgment, but, as the result of that judgment,
I strongly recommended Mrs. Swinfen to accept
£l,OOO 0, year. She came about ten minutes after
I accepted the compromise for her. Mr. Simpson
did ask me to wait till she came, but he did not tell
me that any compromise must be subject to her ap-
proval. I never said that Mrs. Swinfen had not a
leg to stand upon. I wanted to do the best for her
I could .
Mr: Justice Cresswell was called—He said—l
presided at the trial of Swinfen against Swinfen, at
Stafford, in March, 1856. I recollect seeing Sir F.
Thesiger. Was sitting on the opposite side of the
counsel's table, and when the Court adjourned I
beckoned him over and shook hands with him. I
asked him if he was going to Lord Hatherton's, as
Mr. Baron Bramwell and myself had an invitation.
He said he had a consultation in the cause and de-
clined. I *fake to him about it, and told him that
the Attorney-General had damaged two of his most
important witnesses. That was all that passed, to
my recollection.
Cross-examined by Mr. Kennedy—l dined with
several persons while at Stafford, but I can't recol-
lect whether I mentioned the case or not. If any ,
gentleman had asked me, it is probable I would
have answered him. I thought the case was se-
riously damaged by the examination of the female
witnesses.
Sir A. Cockburn, Lord Chief Justice of the Court
of Queen's Bench, was called and examined by Mr.
M. Smith, Q.C. He said—l was leading counsel
in the case of Swinfen v. Swinfen. I recollect two
letters that were read and cross-examinedthe ladies.
At the close of the day I had some- conversation
with Sir F. Thesiger. He asked me if it could not,
be settled. I said that after reading my instruc-
tions of all the cases I ever had, this was one that
ought to be settled. I made no offer, but on the
Monday morning Sir F. Thesiger came to me and
we discussed the matter, making £l,OOO the basis.
The same offer that Sir Frederic made was present
in my own mind. I was certainly not prepared to
go further, nor would I have gone so far but on ac-,
count of the relationship between the parties, and
the peculiar way in which Mrs. Swinfen was placed
by the death of her husband, old Mr. Swinfan's son.
It came out that about the time of the making of
the will Mr. Swinfen was so far gone as not to
know that it was his son that was dead and not his
daughter. That came out in cross-examination. I
then felt that our case was safe, for we had very
strong evidence behind. I did not read the bill
in Chancery.
The Lord Chief Baron—Very few people volun-
teer to read a bill in Chancery. (Roars of laughter.)
Mrs. Swinfen never took her eyes for an instant
off the learned judges during their examinations,
and she joined in the occasional laughter as heartily
as the rest.
Mr. Alexander, Q.C., who had been one of the
rnetdereidn
the into,
recommen-
dation former counsel in the cause of Swinfen v. Swinfen
called,wh
thewhen
aand
d proved compromise
he
e cur
vn
for an arrangement as the most beneficial
course for the plaintiff's interest.
concurred e
He corroborated
the evidence of the noble defendant as to interviews
which had taken place between counsel, the plain-
tiff, and her solicitor, and stated that the manner
of the defendant was most kind
and
courteous to
her. As counsel for the l • If p amti he thought the
arrangement the very best that '
could have been
made for her.
Mr. Whitmore and Mr. Gray, who bad also been
counsel for M•rs• Swinfen in the same cause, gave
similar testimony.
This closed the case for the defendant, whose evi-
dence was s• • summed up Sir Fitzroy Kelly.
Mr. Kennedy•
- by
then replied on the whole case.
The Lord Chief Baron then summed up. He said
that as to the second count, that which charged
collusion between the defendant and Sir. Cresswell
Cresswell, he would direct them that there was 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 an
apology which the learned counsel for the plaint'
stated he would make would be any satisfaction to
the learned judge whose character had been assailed,
or to public decorum and decency, which had, in
his opinion, been outraged by putting on the records
of the court such aeharge as this. Next to trial by
jury, the independence of the press and of the bar
was one of the greatest safeguards to constitutional
rights, and, therefore, of their social
happiness.tl all
would lay it down as a principle of 1
taowdischarge
the law required a barrister to do was
as
he could. He
his duty towards his client as best
he might be,
might be utterly wrong or mistaken—_ _
as the counsel for the paintiff had suggested,. under
the influence of fear—but if he intended to act
was not responßible . The
honestly
.by his client he was
to the • • material points
learned judge then alluded
in the evidence, and said .
that the simple question
which the jury had to decide was whether the de-
fendant had acted fraudulently or improperly, or in
the best interests of his client.
The jury, without a moment's hesitation., re-
turned a verdict for defendant on both counts.
The announcement was received with loud ap-
plause, which was suppressed by the edge( 3rs of the
court.
The counsel for the plaintiff having ti 3,ndered a
bill of exceptions to his lordship's ruling.,
The Court adjourned at a quarter to tu ‘ o'clock.