The Sun.
London, England, 1844-01-29 00:00:00

THE QUEEN V. FORBES M'NIEL.

The defendant, in this case, appeared upon the floor of the
Court this morning, to receive judgment.
Mr, Justice ParrssoN, in passing sentence on the defendant
said, that this was an indictment, charging the defendant with
having assaulted John Abel Smith, on which indictment he had
suffered judgment to go by default, and he was therefore, now
brought up to receive the judgment of the Court. (The Learned
Judge then proceeded to recapitulate at great length, the cir-
cumstances which had led to the assault, and which have been
already frequently fully reported.) As soon as it had been re-
ported to the defendant that the prosecutor had made use of
the offensive term swindler, the defendant had written a letter,
very properly framed for that purpose, requesting a retracta •
tion of the expression, or an investigation, which
letter had been forwarded to the prosecutor by Mr.
Ravenshaw. The prosecutor, however, had refused to re-
tract the offensive expression, or to give any explanation, and
had stated that the only investigation to which he would con-
sent was a legal one, and Mr. Freshfield, the prosecutor's attor-
ney, had written to Mr. Ravenshaw, stating that the prosecu-
tor had used the expre•sion in a moment of irritation, but that
he would not retract it ; that he was willinA to afford every fa-
cility for legal inquiry, and that if an action were brought against
him, he would put in a plea of justificati in. That course, how-
ever, had not been adopted, and the defendant had taken the
first opportunity of publicly horsewhipping Mr. Smith. The
Court entirely acquitted the defendant in sending Mr. Williams
to the prosecutor of any design or intention to stir up the angry
feelings of the prosecutor, but it could not but be regretted that
the offer of the prosecutor to make the matter in dispute the sub-
ject of legal investigation had not been adopted. The defend-
ant said that the offer was a mere mockery, but the Court was
not of that opinion, for although the use of the word swindler
might not be actionable, which was very doubtful, yet the pro-
secutor might have been required to reduce the expressions to
writing, and the Court was of opinion that the letter of Mr.
Freshfield was in itself actionable. If that course had been
adopted, all the facts would have been laid before
a jury, who would have had the advantage of hear-
ing the viva voce evidence of the witnesses as
given on their examination and their cross-examina-
tion. Such a course of proceeding would be much more
consistent with the interests of justice than the one which had
been adopted, for no character had ever been vindicated by
acts of violence. The language of the prosecutor, it must be
admitted, had been most offensive, and such as he ought never
to have used, and if it could have been shown that all explana-
tion had been refused, the Court would have considered that
circumstance in passing sentence ; but it seemed that the use of
that language had been justified by the prosecutor, and volu-
minous affidavits had been put in on both sides, to the contents
of which he would now allude. ( The Leat ned Judge then
went at great length into tie history of the pecuniary transac-
tions of the defendant with the house of Smith, Payne, and
Smith, and of the circumstances attending the formation of the
partnership of Wells and APNiel, the whole of which has al-
reay appeared when the case was argued.) With regard to the
misappropriation of the trust fund of Mrs. Wells and her
daughters, the Court was of opinion that the prisoner, in the
firstinstance, had been led into this misappropriation of that
fund from his blind confidence in others, and that lie was
guilty of negligence, and not dishonesty. He, however,
had subsequently shown a degree of acquiescence in
the acts of others, which might very fairly have
been considered as operating on the prosecutor's mind to
produce an unfavourable impression. In the year 1810
the defendant had discovered that his partner Wells had been
guilty of several unjustifiable acts, more particularly that he
had been pledging the credit of the firm for his own private
debts, in consequence of which the defendant had caused the
partnership to be dissolved, and had attempted to carry on the
business, impoverished as it had been by the abstraction of those
funds. The business was insolvent, and the attempt
was hopeless. The Court, however, did not think
that the defendant believed such to have been
the state of the business at that time ; on the con-
trary, they were of opinion that the defendant thought
the business might be restored, although they could not ap •
prove of the steps which had been adopted to support that busi-
ness. The Learned Judge then went into a history of the bill
transactions between the defendant, Virtue, and others. Now,
although there might not have been any deliberate intention to
defraud Smith, Payne, and Smith, yet no one could be sur-
prised that a person who had suffered so severely as the prosecu-
tor had, in consequence of these transactions, should have been
betrayed into the use of strong terms in expressing his feel-
ings. Looking carefully at the affidavits, although the prosecutor
was not justified in using the word swindler, or in imputing
deliberate fraud to the defendant, yet looking to all the circum-
stances of the case, it must be admitted that great allowances
ought ',co be made for the use of expressions blameable in them-
selves, but which had been uttered in haste and not deli-
berately. But nothing could excuse the defendant in having
had recourse to personal violence, nor could the Court pass
over such an offence lightly. It was necessary, by making an
example, to protect the publid against such breaches of
the peace, and to prevent persons who might consider
themselves aggrieved from having recourse to personal vio-
lence. A certificate of the state of the defendant's health
had been put in, which would have the effect of diminishing
somewhat the length of time for which he would beimpri-
soned. The sentence of the Court was, that for this his of-
fence he should be imprisoned in the Queen's Prison for three
calendar months.

Mr. M'Niel was then removed in custody of the officer of
the Court.

MANDAMUS-THE WILL FORGERIES.
THE QUEEN V. THE LORD MAYOR OF LONDON.

In this case a rule nisi had been obtained, calling upon the
Lord Mayor of London to show cause why a mandamus should
not issue calling upon him to deliver to Joshua Fletcher or to his
attorney copies of the depositions taken against him, and upon
which he had been committed to the Giitspur. street Comptcr,
for re-examination, on a charge of forging the will of Ann Slack.
The ATTORNEY-GENERAL now showed cause against the
rule, and contended that it was evident, from the wording of
the Act, that the copies of the depositions were to be furnished
only after the person demanding them should have been com-
mitted for trial; besides, it appeared from the affidavit of Mr.
Goodman, the Lord Mayor's clerk, that the depositions were
not actually in existence, inasmuch as they had not been yet
signed by the magistrate.
Mr. V. Ricsia ADS followed on the same side.
Mr. KELLY (with whom was Mr. Ballantine) in support
of the rule, contended that the wording of the Act made no
distinction between committals for trial and committals on re-
mand, and that every person committed on a magistrate's war-
rant, had a right to copies of the depositions on which he was
detained in custody.
Lord DENMAN said, that it appeared to him that in this
case the rule ought to be discharged. It was evident from
the preamble of the Act (the Prisoners' Counsel Act) that the
intention of the Legislature was to furnish the prisoner with
copies of the depositions in order to enable his counsel to de-
fend him at the trial. He had at first been inclined to entertain
some doubt from the wording of the section, which enacted that

Mr. Sergeant Snxs: (r.ith whom was Mr. Ctiarnock) stated
the case to the jury.
The facts are sufficiently detailed in the following evidence
Joseph Hayes, examined by Mr. CIIARNOCK, deposed—i
keep a beer-house at Merton. In the spring of 1843 Mr.
Winstone called on tne, and inquired if I could iotroduee him
to some one who would take care of a sick child belonging to
his son. Having known Mis. Hone for six years, I recom-
mended her to him for that purpose. I had lung been ac-
quainted with her husband, who was bailiff and steward to a
gentleman of the name of Payne, living in the neighbourhood
of Merton for many years. Atter an interview with Mts.
Hone, the defendant said to him he thought she would do very
nicely, being to all appearance a very comfortable sot t of woman.
Mr. Win.tune came down to Alerten frequently afterwards, and
always used my house. Mrs. Hayes and I took supper with
him at Mrs. None's on one occasion after their return from the
Moulsey races. Mr. Winstone has several times inquired of
me as to h. r character, and afterwards, w hen I mentioned her
name, he has said to me, " Don't call her Mrs. Hone, call her
Mrs. Winstone that is to be." He said so several times in pre-
sence of Mrs. Hone.
Cross-examined by Mr. ITUMFREY—My pipemaker, Mr.
Swingean, introduced Mr. Winstone to rne. My pipemater
may also supply pipes to the plaintiff. I believe the lady does
smoke a little.—( A laugh.) Ido not know that she is also
very fond of gin and water. She sometimes comes to my Tom
and Jerry shop fur beer. She does not drink there. She
smokes at her own shop.—(A laugh. )In the middle of April,
when I first saw the defendant, his wife was living ; she died, I
believe, in May, and the bans for his marriage to the plaintiff
were published un the 4th of June. The plaintiff kept a school
at Merton, and a small confectioner's shop. She also kept
lodgers. She still resides where she did, but her school is
broken up. I have not seers her smoking lately, not for the
last two months. She smoked not cigars, but tobacco—
" shag," I believe.—( Loud laughter. )
Catherine Glass, examined by Mr. Sergeant SHEE-•-1 knew
the plaintiff well, and knew her husband many years. He
died about eighteen months since. I lodged with Mrs. Hone,
and saw the defendant when he called to know if she would
take his grandchild to nurse. Two or three weeks afterwards
he called again, when 1 heard him say to Mrs. Hone Le
" had come on another subject ; he had last his wife, and
the breath was scarcely out of her body before his mind was
directed to Mrs. Hone." He stayed to tea that afternoon,
but wi nt away in the evening. He came again next Sunday,
and wished Mrs. Hone to go and take a walk with him, but
she declined, observing that what he had to say he might
stay at home. What passed between them then I did not heir,
but on the occasion of another visit I heard him ask her to go
to town and see his property. He wished her to part with
some of her goods, dismiss her lodgers, and break up her shop
and school. Looking over her furniture, he desired her to
sell various articles, but sold her to keep her own bed, and he
would have chintz hangings for it. The attentions of the de-
fendant to the plaintiff were always pat tieularly kind. The
defendant is more than sixty years of age ; the plaintiff is about
forty-four. He has called Mrs. Hone " Mrs. Winstone" seve-
ral times in my bearing. He said he had no one to do any-
thing for him, not even to make his b-d, and he would come
and take Mrs. Hone to London as his wife. I remember Mr.
Winstone taking the plaintiff to lloutsey races ; when they re-
turned, Mrs. Hone, Mr. Wrinstone, Mr. and Mrs. Hayes, and
I supped off some salmon and mackarel the defendant had sent
to Mrs. Hone's. The defendant seemed to be very comfortable
and agreeable on that occasion ; he said he meant to make Mrs.
Hone his wife ; and as he was determined she should wear
something that belonged to his former wife, he had twelve shil-
lings' worth of gold added to her ring, and she should be mar-
ried with it. lie told her to get all her bills in by the time he
came down again ; and when the told him that all she owad
amounted only to 41. 105., he said he should pay that, and take
her out of the parish in triumph.—( A laugh.) He said he
had 19 houses in Southwark, and sufficient property to make
them bath comfortable. He first proposed that the marriage
should take place at Fulham, because he had friends there ;
but, it was afterwards arranged that the ceremony should take
place at Merton. According to the directions given by the
defendant, Mrs. Hone sold her furniture, broke up her school
and shop, and parted with her lodgers. Finding she was de- ,
ceived she seemed very unhappy and mortified. Her contem-
plated marriage was well known in the neighbourhood, and she
hail not resumed her school.

Cross-examined by :Ur. flumFßEv—l lodge with the plain-
tiff now. She had two other lodgers, one of whom has since
left. Part of the 4/. 10s. the plaintiff owed to her landlord, but
he did not take any Fart of her goods away. She was not
aware that the plaintiff was addicted to gin and water. She
had been recommended by a medical man to smoke, being trou-
bled with water on the chest.

Anne l'a) ne, who had agreed, at the reque,t of the de-
fendant , to act as " bridesmaid," and J. Mills as '• father,"
gave evidence to that effect.
George Higgins, nephew of the plaintiff, deposed to several
c. nversations with the defendant, in which the latter declared
his determination to marry Mrs. Hone. After making several
inquiries as to her circumstances, and ascertaining that she had
no property, he said he did not want money, he had enough to
make both comfortable. All he wished was a respectable
woman, who would make him happy at home for the remainder
of his life.

Cross-examined by Mr. ITUMFREY-1 think it was my
aunt that told me the defendant's first wife had only been dead
a fortnight when he proposed marriage. I did not remonstrate
with my aunt on the impropriety of marrying a man so soon
after his wife's funeral.

William Poile, a pig-dealer, was next examined—He stated
that he had called on the defendant and remonstrated with him
on his cruel conduct towards the plaintiff in refusing to marry
her after inducing her to break up her establishment at Alerton.
The defendant, however, said he had become acquainted with
anather widow with some property, whom he had since mar-
ried; but he was willing to allow the plaintiff 401. or 501. in
consideration of the disappointment she had sustained.
Mr. 111, MIRY V, in a very humourous speech, commented at
some length on the facts adduced in evidence, and contended that
the proposition which the defendant bed made through the last
witness was a just, fair, and reasonable satisfaction tv the
plaintiff for any injury she might have sustained by the break-
ing up of her little establishment. It was ridiculous to suppose
that any affection could have existed between the parties, and
no reparation could be necessary to wounded feelings in such a
case as the present.
The Learned JUDGE summed up, observing that the
plaintiff was clearly entitled to a verdict; the only question was
as to the amount of damages. Undoubtedly this could not be
considered a romantic case, there was no love between the par-
ties, but still there had been great misconduct on the part of
the defendant, who had deluded the plaintiff with false hopes
of a settlement in li:e, which in her circumstances was a matter
of great importance. She was entitled to a reasonable com-
pensation for the actual loss she had sustained by the breaking
up of her establishment, and, although no great injury had
beer. done to her feelings, for her disappointment of a com-
fortable establishment in lire.
The jury, after having consulted fur a few moments, found
a verdict for the plaintiff —Damages, 200/.