Supreme Court, Calcutta, ...
The Times, 1824-01-22T00:00:00

fAe&rtn 7A TMn A%4.. A .I . -" v iIr. TtrILT1r.-ThIis is an action brouFhit t t'he defes3danm fbrtcrioiawlil: co;veRsatio with the .plaintifsW' ie The dI=ages *we?e laid at too,000 rupees. TXie-ADvoCATEGf7E,2EPA,L.-T riiord, the defendant inthis cl*Is ta Ieutenantin the army, and Deputy .Judge Advoeatc.-ene. at CawaPore. r. Swetenhamn resides at Putteg;ahur in charge oF ani exiciisive distri6t. H1e was -married in 1818 to a Ataughter of Mr.: Donnithorie; ofthe civil service. It was a match in everv Te- ,spect well proportioned.a mnatchl, too, of affiection. She wa.s about 17, beautrnil and accomplished; the plaintiff was about 2.. For fburvyears they live'd t-gethe'r with a harmony~aid affLiction seldorm co1e 1The' ifheldtTer of the'lady, Will tell yna, that if his son- r4aW had. any. fauilt 5s a husband, it was that he was too in. dirgilt...?at e ws o fond of his wife, that he humnoured her i evey whm, in every cap~rice, and in every extrava- ganc. I wil beshown- that they continued to live tozeth-er iiithi afecionitnilthis- destrorer, the dleFendant, came-to blast thei~h6nourandhPpols In tbi- state theywere liv'inrr, when, -n eptember lasts whle MAr. Swetenham was on a visit to Cawnpore at te-ouseo a ati Bakrde defendant, Mr. racnaghten, th scntohrsa dEftPir.t BSgAtenl,am becatnelieased with-his mnan. I^vS, wl ae, BluOndehstanda very fhseiniarring andinvited, himato eow anandantie at Fdittegurr lito hetther from that rbt he preiedt the dishonour of his friend, or whether the idea ofcr itneRthis criminal act afterwarhIs presented itsel to, nsumin1 Toeanriot. pronouncey fbr the bOn7our of hbtnan nature, 0*evaif, It Is to be hoed that'dthe latter wn s tbp4ac; but be that ndit Taed, he Went to. vhviit Almfid Mrs. to wvetcnbarn, in'October last, at Futteghostr ect aon to find them there ;a but. or Swentern ham, expeadi, nev. crbdnhlttrg leh directions wihti his brotheridn. ofwtmedefrivhar'ot 7 hais taken vi'doetarture before thearrival th o fhi only returned to Futteghus pwe dayscwhap Se was v thaiged tOh go3agane into -the district -ahdconsideranve the st4tenmt a ld visiter 'had been wit hint, he. foelt it idauiven't on hialht*hr,i tytoa invite Mr. Macetllhen to accompany hI on this jotiurney. Thoseebkn dw t k ny th-rins of thei nbounaedE-hospitality prevailintrinth aUn porf t rino1unill leinot he stepriednat thie. df; indeed, we are t et re ar. cki onfidepee, to have no faith in tfie Puray of condu6t b those around us, then is there an ent to all irter-, coqeho0oecioty. f t4t serely, blarne can nevear he iinpatdsL to my cliwnt -nthe cdn never be-charged with want of eeribuon-tcat he did nbt ineanly harbourin his breast stispiclon that the definodant was the contwivesof his it, a dsnel didotter aganst this peace,an f hs'pi ness. The deflehdant and a iAr. Mangles accompanied Air. anid Alrs. Swetenhama on this journey into *the "diwtris t they travelled in tents, anl 'my. lent was-under the necessity- of goind daily to his ut&heri, atsee ndistalnce fronnthe t ettin it ndiscliargeo the mult tlf'ari ous nl pregsing-dlties impwoe-on himuin theo thnangenentofa largedistrict, anT d ofp tetur ineing to ftillat tinothe aftenoon. Thedes fendantocmucied a tent near ihat ed tlr.ooingles. Earlyic Novemben, ?oitt lme aferMr. Aanmles's departuri'on his returi to Fhtterrbuse a Chowprasseo of my-eclient" e w tbinkinth heao e one crllhin-r, wentintoth.ediheIigeent, antaileitehirfo describe the dconditiotjd thich hesaw the paettfm lies alseit toi ay, that the dishoa our of rayv Clientpwase ompleted. Til seravrnts dil not, at this time infahna their master of the aft'air - faso great was lrs. siwetenhaofs inh fluence over her hsband, owing to his tessive d ondness 'for'. Jiaer, that they were uctually afraid to m Letition it; and so it turned - out t eat-this intercourss e went on, and ha continued up to the lresent time. the i oarty returned to Fbtteghur together; arsdit so happened that my clien was again obmige to go into the districtshortly iftets. Hie left 3Nra. Swete.aam behintd him on this occason , her lhouse, howevol, -was in the same compound with th4t of her bibther-in-law, Captain Smith. The defendan hat leariied the day tettledor tahe departre o? my client, also 1thaedhis for the sa ve had bsen Cawo poret; and it will appeAr that oa the amer dy , time had am' wif at resetmaled.She at' thatrveryi tm e house,a Flanned the elopemenRe a-mv client's wife, for he laid a dtwk for two persons. Mrl. Swetenhan had; not wfom any tuspicion of the defedadnt-for he.haa not then the most distant idea of having any cause, and his mnind was oo noble therefore to harbour anys-fbathe had, for the sake of propriety, obtained from lrws. Swetennam, he fore hus departure, a promise, which she most readily gave, that she- wvould live during:his absence-wvith Amrs Smith, her sister-in.law'. This, however, shle did not fulfil. Wlile Mr. Swetenham wasstil's absent, and happy in the idea that h had left behind him nw loving and faithful partnier, he heard that the dihonotr. ofhis wife had been completed,vnnd returned to aFutteghurono the very night she had eloped. Jamts Donnitbolne, Esq., examined.-Is father of imr. Sweten. bhamns wifear at present marined. She wag married in my house, at Putteghur,.by the-Rev. Mr, l.vans, chiaplain at Cawnoote, on the 2d ofAprel, 1lo t rs. Sttentieiam was, I tahinD, nearle 17 vears ofage,orrather less; 1r. Sweteham was about. Mr. Sw'eten- wmas then in the civilservice,'and o hav been so alsof br many Zears. hehad one child a boy, now fotir -yeartsold. As far as I have sen the conduct of tMr. Swetiniam, It was most riulgnt as a husband, almostt teafault.- Thieylive d mosthapreilytogeth r. Alunno6 Khan Choeprassee ' exa.min6d..-HTe is Mlr. bwetetiham's servant; be has b6en in his service a long time; has now been five yer Vhintns orderlpeopice t orolah a I. Iag Doft ?-Yo ren r w lainotithere; hie ifef ar. Pueanle, and, the de. jendantlin Futteghur on ajourney. P..-.Yes, was with themt I hWy went byo lan wther-I thoatehts dnthrememberha taUed monthnd -theTforezent.(thcvitnes swre diectl monvigw thes hdutlnteary*) T o; iot wangi y wthe-coldseagon ; about aegning Do yoW recoreot the tents being paitcwed at a vilage namned Nour- dowleah P-Yes; I was thiere. - AHov many days had they been out then ?-They had left Fatte- ghur about 20 davs. '-Had your mas(te'-any - kutche~i ?-His kutcheti was at Burlioul. lab; 'be used to go after breakfast to it, and return.at three, four, or five noclockin the afthroon. 'DVhen tents were pitched at Nourdowleab, had mar. angles left ?-Yesr; he was not ther; he left at Puttea-a, and went to WD id youtrim go N there I thought the lady had caleda me, and theresore let (Thad; witnessusworeddirectly to having witnessed adltery, Tyovuot gotte angery withlQ- to is- landy w-ent oaty much; -Whre was ver astner; y master wasoat hahiskutchert about seven -Atwbet timeof t he daywasit?-After- 12of ene tsayexactly,'havt inX pcAr wtuatch. n ViMAl.Swetenham come back that eveniing'P-Mly master came hikafter three or four thayin tea great s,o itigohtenedea' DpidAyountellmhi b, exNoIamaed.-Youman; how coutld I dlare to say oP f Ihadhe wuldhav taertmy life from me. Did yourtnaster appear artachet lady ?-Yes, very much; You livernd oa her we dared dot esaoined, a wornd to any body Did you recollect, tin any other day, of having seen the parties in any particular situation ?-Upon another occasion, two or thiree days af-er this, I saw the lady in a great cbar sieting otw the gyntleman's knees, with ier arm over his neck. s Captain Adoniah Smith, examined.-You - are brother-in-law to Air. Swetenham-marrieyl to his sisterp-Yes. You lived near him ?-Yes; our doors joined, and the hou.es ae in hie same compound. Did you become acquiaited with lrs. Swetenham soon after the marriage - Yes; about two or three months after. dFDon that time to the time of-the elopementgwere you on terms of itiinSacy-with them ?-Yes, very much so. Bowh tongwermsed they lre ?-Ithek thappeared to live particularly happ;'bu I neverh;et was copeitmorieptme so.cobr Did. he-appearfblua,'is ?arBid c ubjert snth o. pn' eiei Dh d sha peartahemohiy-ey.uh lVhati5 hswtrhank hansoe is er arty Iiethink.S An be treated her with affection PYes, ihey great ayf.ec. tion indeed. ,iDo you remenihter M r. Swetenbar going on a visit to Cawnpore in' Sepember. last P-.Yes. - Ilow long were thera there ?-I think they returned to Futteghur inzabyuta month ;-iiwas either in Septembler or October. tenr.filacnaghten is a British suhject'in the Comnpany'sservice in the army. t 'What 'is hi rank ?-Re is a lieutenant. He alo bolds some 'other situation-P-Yes, be is Deputy-Judge Advocate. General.- - Lbelifve you accompanied Mr Seenha PmYeso WIfhen did you return P-On the evning of the 23d of November. Did yoa f6n?I tho t Mrs. Swceterham. h lived at-Mrs. Smith's P -No ; on the contrary, founa she bad only been there by Invitation. Did yrou ficl the' prtiy' at your house-going to dine at Alr. Swe- tenbam's ?-1 -es ; and I dinedr there alsto id the defenant T ine there also t-Yen s- a _TWhen you fisnt gaw Ars. Swutetbam on your xeturn that day, did vaouTnakei any observation-as to the cond fi lrs. Swetenhan f - N Setena vry much alstnnished at seeircg ine so un v sxaste e . inco. she-kedany observation -She mat ked if Swetb oiuhtfblad on tohaime ntb e oA nightht.nous itt 10 or Yeiiz,th&`veningdP-No, nothing Did you 'go fo bed P-Yes. I WVere you called up in the night P- es a srhntcaine ovf lrs requesteh would go to MAls. Swetenhausm, as they did not kinforwhat mof ith amlIatterThiswards absour thenr inuatesoafre o Ie otured. '(& reuestedtou findetal what passed, themwes prToeboaoeded thet:1 G.p aideno attenaion by o tahe first summons, but shortly fterreceived anotei~y oherservntstha cae. Wen wet oer,I found Mrs.Swernham drssed anleaningverhe cidwch as asleep in co. Iatkd hr wat as he atter that she was oxut of be -at tht time of niglht.- D id-ie appear distressed in, mind P-ShLe-did. Yd Mis. Smnith and Miss Sweten hamheme ?- Yes; te6y dtd.' S e ne oe at yougP Di' you press her to go to bed P-Yes, I did; I requgisted the ladi6s to'-get her to do so, and left the room. Whien yot 'left the r6oom,'did youi discover that anvy of Mrs. Sweenhin' thngsha&lef th hose P-The servantS' informed sue oit, nd I fterards iscoered heirinformation to be correct -Wh'grilid ou 'fnd -thy lie beenremoved PT a oto te Youthn sntAir. nt'tl.ad ?his wetenham heme P-Yes; I -;Did yoU then enileavourto persuade Mlrs. Swetenham not to pur. sue the plan she had formed P-Yes, I did; I told her I had dis- covered it, and endcavonred to prevent her adopting it. Did you endeavour to persuade her to go to your bungalow till lr. Swetenham's return P-Yes, I[ did every thing I could to get he herthee But I believe she refused to go P-Yes; and I only succeeded by 'carrying'her to my house bv force. You then sent for Mr. Sietenham ?P-H e was sent for ; butnotby me. Did Mrs. Swetenhain make any attempt to escape from your bungaia.w P-yes, she did; twice. M\r. Swetenheami returned about 7 in the morning of the 24th P_ Yes; about sunrise. It the meau time your had removed Mrs. Swetenbhaw's things frown' enaghten's boat ?-No ;* Captain-Pa rsons had. Swerenhm, - on being informXd of whar bad taken place, refused to see her again P-Yes; he refused ever to see heragain. Did lie authorize you to-propose to her an allowance,'id '&tatske shoplti have ai choice of w?here she wvoullresite_Yes, he did. I)id dIr. Swetenhana offe'r to send hter to Enigland if she worAI reside tlere P-Yes, or anv where in India- - - Did--he make it a conditon that -she should reside alone ?-Yes, he made it a condition that she should siam alonie, and ifered her, onthese ternms, an ahlowance of B00 rupees-'tinonth. Shesaid: he would oinsider hisi projsalP.9-.Yes, N c b : -she said if he Soued allow her to go oh boa}d a 'oa-tin th " river, she dthereionsider pwoposal, - - '-- - She went onilbad ?_Yes.' budgerw '- ? * i oa - ent on board, and gzae --1.er f-romAM.Seebm1O~ rMPees;.an d agma.n urged b r to r4iCt on is-ppo., ftaeebadi1tM Was nwooate. hsPOM. h kdi naghtinwas thedabe lb 11"Pt ustlme YOU ever saw Mfr. MAh-. tlahin Wa 1h dibfr thev went into the A1ofus,il?_....,;4. tim second time. ra D~g te Ii flowlong had they been in the district before you joined ?-Two - or three daysn How long did you remain P-Not more than a day. Was tnle. Manglei withi them -when you joined P-Yes. Did he continue witlc them when out in t he district ?-Itt, the , returnod before thend, three or four days probably. vai en y boey eut with tthem ?-bC tai Paro ons was witht Iifir at the trime Iws, tat hueedai Itpluenkwtjil xD .I rs d returnet,; I hn dwti them. r. theparty wentoutclined calling any .vidence, but. Tose and ndSmt dreho ed the C ourtin omitigation as follows :-b l r L-t t. -it was fio't my rzen ti nnt goY hae sh?adare,sded your Lordship at all in-th'ii caser but hr aden onservatn ofy lemayrned friend, e lhing on your Lordship to twatd hevydange awaenat itmy clineat. ;tat note ie,-i sayLord, tjuttfS reeorfr bcormmitted byirev client, for no marisend d.orih deeply repet iitSan m ietdoes. -Hid I been instructed to defend 'a - con uct, itwould have been my duty to have attempted it; but. so( far is this from being the case,m that thp Very first in4tructions. I re- - ceived withs my brief wcre, niot to attempt to say one i7ord- against al. Swetenham; but the observation of mv learned frlend peNiearlyn calr for, firom sptn a claim for n miingtien of, damagme. The whole case my Lord, showes only in this Aeir the acts of M?A. Swtenhama no arts of seductioftneoni of those tats e oed to.'nsnare and betray w'sich us~ually form the'groirnd of' oreavy damages are' lhere ehibited: on the contrary, a witnes; has been put into that box, who proves that the def`ent 'never taw Mrs. Saetenham ill he went to Futseghuir.. It was statedh by the witness that the defendant teverwas at Futteghr.before I tb: timet teparty went out into the d ristri.L Jsaythatf aptain Sfth who was ierv intiniaie, who, is the brotber-indhi, enId. wbo-ust, have been daily at their hour e, has declared that he nver smydithe defendant before he saw him in -the istrict with deirs. Swetenr. I say, therefore, that it is a fair y erence that the defends -In iietr bad been. at. Futtenghur before, or that if be had,: he,-meier' had been on ternms on intimacy with theu hiutiff; yetitsimn.VidHenc that Mir. Angles went with the party;lthat he resained moth, tbeld till three orfour days before their retuinso Futteghur.aiid livedm'ith- them as mnuch as my client. Now I mtaintain, t athuiif any arta of sendctiobe had been used, he must have smeen them. LeI .T; ioke, thierefore, Captain Smith's evidence, and even isay that they went away in tcs e end of October, ant returned in the oitdleof ovember. Hereistone fortnighl n and takingthe middle of that time,.they had been only -one week. tojther when the act yas comritted. Taking, however, the m niddleof thepesiod statedh tIsay it was only abouta week whef this act of adultery -was conu mitied ;'- anii taking into consideration thp. geat probability that the~ mlnt art of adultery was inot immediately gisecoi-iies id- ithat thati relatedin evidence was t aerefore not the first am of adultery, I tao' think it extremely probable, that in three r. fiour-daysbonly, e they were togetberu the crimewas commuitted ; cnathisd Lord, ir- he ground oni whichi your Lordhip is called- on to stamp my client by an award of heavy damagesu as a cool atddeliberate seducern. te say, ny Lord, that from the negative evidence to, wat ch I hav eta.' !udlet,. l'have a righit to say. that he is not so. lily- client' is ts sorry as any . man can he for the crime he has comnitted, there -is only one excuise fer himn: he is a young mani, -ard hL- is left in a tedn alonei wit a young and beautiftul w6nan. He ia Lieutenant in the army, having only 3.00 rupees per mhonth, besides- his pay andallowance forthatrank. It is in evidence thbatlei ma' ney, - man, andt thLe damages that may be awar ded mnutt fall1with s~erdty- on him; somcue leniv, I think, should be shwn in inaiderasion ceff these circumstancts ;vbut if heavy damage& arecarded, heamuth go to gdol, .fro his circtumstan's) will not-enable him to pay 'hem, nordoIbelievethatli hasriafriend weho wil oine forwar at;id ido, SirA unTSrOmitb,utprLLEne.Certainlv thle nly quesion-here.is4 -- to the a iount of damages. As'the cause went on I imade uDp may mittd as to the damsafe, and niothin- i, have beard nsithespeach in mitigation or defence, has at al f thensi to affect the. decisint 1 had cometo. Ii bpleve, indeed, thatthatdefenseis hapdefenceof'o sel,t unauthorizes by instruction. I(o certainly think cthrt the plaintiff' comes here in a situation the mostfavourable to, eosdajnd uamages., toe have the strongest evidemsie of the happtiness. inc which the parties lived prior tothe adultery, and the father of the uac fortdnatevi young woman gave his evidence in a way that must have-appealed. to every fbeling -heart. I cannot exactly gather. iromr thje.evidence how long the dafndant had been acquainted with the plaintiff; but it would. apptsar-lta it was some time before they wivent on this e- cursion; b,fecause he came to Ftutteghmr by invitatuon of the husband, who left ins,tructious with his brother-in~-lavw to receive iMu at his bouse during eis (the h ousband's) absence. He came accorling to' that invitation, ard arrived while the. pliniff was absent; he did not, however, stop at the house of hiss-plaintiff's) brother-in-law-. Captain Smith, hut proceeded to join the pArty in the diatrict. Ac X cording.to the eridence of Mlunnoo Cheootrassee, the crimie was cdnaj mitted twm nty days after this. There is, indied, nG direct 'for eDd 7 tmf seductiow ; but can I look for this in a caselike the present, it is proved that the parties lived most happily, tqgethersiu:th6. greatest affetction until this crime was commwitted P The only~ -tiffig like an argument in mitigation is, that the lady. imay have *uJlr* too easily-that she did not make that resistance which might.liave; been expected in he case. Bat'whern it- is consideredl that she -was only twenty-one years of age, and the.- 4ete~ndant, according (a tvi- dence, thirty,I think that even this 'argument falls to the ground, aLnd thgt the &tnsages I have mnade up my-mind to givre will not e. thought excessive. I should be sorry" ensha .cst gvdata circmstaces, threfre, prtsOuie verdict for the lini. uPpEMs COU z',_ CACUPflA. 1j 24. IKLM. COSt..H*RY SVTEIrA2YWEThNA X. R AAIDA 71AC.