A LEGAL ROMANCE OR THE SWINFEN CASES.

Mataura Ensign, Volume 7, Issue 414, 2 December 1884, Page 6

A LEGAL ROMANCE OR THE SWINFEN CASES.

Some thirty years ago there dwelt in Staffordshire s\n old country gentleman named Sam Swinfen, the possessor of an sstate valued at between j L 60,000 and L 7 0,000. He liad inherited his property somewhat unexpectedly, and was accustomed to complain, of the ruinous condition in which he found it, the Manor House, Swinfen Hall, being bo dilapidated as to be almost uninhabitable, and the most valuable article therein being, as he averred, a half barrel of sour beer in the cellar. This state o£ things he ascribed to the extravagance of his predecessor in the title, and for many years he and his wife passed a secluded life in two rooms of the old mansi on. On her death, in 1848, however, he invited his only son, H. I. Swinfen.. to take up Ilia abode with him- This the younger man did, bringing with him his wife, with whom he bad contracted a romantic marriage against his father's approval. The old sore wa.3 healed, and a complete reconciliation took place. The son set about improving the estate, with marked success, and all went weU till tb,e latter's sudden dea^h in 1854. The father was now eighty years of age, and in a state of pbvsical, and, as it was then thought, mental paralysis. In fact, friends of 1 tla© family, writing in the widow's

behalf in answer to letters of eondolfjnce. stated thnt ** old Mr Swinftm was happily spared -the shock, being incapable of ;undeistanding the loss he had sustained." Under these, circumstances thewidow, who, let us state at p)ace, is the heroine of ,our;tale f actually too^^ppme,. steps,, to teat ; his sanity'^ bub: the doctors differing,, nothing . was done. The old gentleman,: in v fact, was nob insme. He knew that in default oi a will the estate would pass to the heir at-law, and representative of his predecessor, Captain Swiiifen, of the Gth IJragoon G-uards, and,, after due consideration, he gave instructions for, and executed, a will whereby he devised the wholo property to the widow. Ihe will was made on the 7th July, 1854, and on the 26th of the same moir h the testator died. Thereupon Captain Swinfen cist about for means of upsetting the testament, and invoked to his aid the old familiar friend of lawyers — " mental incapacity." He filed a bill in Chancery and by consent an issue devisavit vel non was sent down for trial, and came on for hearing before Cresswell, J., and a special jury at Stafford assizes on Saturday, tho 15th March, 1856. For the widow, plaintift on the issue, Sir 3j\ Tkesiger, afterwards Lord Chancellor Chelmsford, was apecially retained to lead, and on the other side appeared the famous Chief Justice Cockburn,then Attorney •: General. Oh the first day's hearing the ladies who had written the letters after the son's death were called, and in cross examination admitted their previous statements as to ths old man incapacity to recognise his loss, he having actually stated to one of them that the person dead was Mrs Swinfen. Other damaging points also were made against the will, and Thesiger was so impressed that he ssnfc for the widow to his lodgings, and strongly urged her to put the matter in his hands to settle as best he could. It appears the Judge had privately intimated to Thesiger his opinion th?t the case was going against him, and Thesiger led the widow to understand that the defendant offered to settle on her an annuity of LIOOO if she would give up. the estate. This, with that courage and pertinacity she showed from beginning to end of the litigation, she absolutely refused. She was ultimately prevailed on to take the night to think the matter over, but next morning saw no change in her | determination, and she telegraphed to | Thesiger : " Offer refused." We may judge, then, herj astonishment, when, ! on arriving at Court on Monday morning, she was met byher.oounsel leaving the courtroom, and coolly inforined that he had done the. hes J t-.fo.r.her, and had settled the matter on, the terms originally proposed. Sir H. Burrard was with her, and demanded, of Thesiger by whose authority he had acted 1 ? "By yours," replied Thesiger. " The deuce you did I" exclaimed Sip Harry Thesiger, however, marched off, and. the widow was left to .digest the situation as best she could. But if the heir had a verdict, the widow had possession and to possession she clung. From the beginning she had asserted that she would stand or fall by the will, and at this crisis she rose to the occasion like Maria Theresa, and, abandoned by all, she quietly returned to the hall and awaited events. Speedily possession was demanded and refused. The heir's; next step was to take a rule nisi for . atachment against her. Thia : was quashed, on the ground of insufficient proof of. disobedience fSwinfen v> Swinfen, 25, L.J. 303, C.P.); but the Court, consisting of Cresswell, Williams and Willes, J.J.,'all seemed to agree that the compromise was binding. Another rule accordingly was taken; out (Swinfen v. Swinfen, 26, L. J. 97,| C. P.), in answer to which Mrs Swinfen made an affidavit setting oufe all the facts. Fortunately for her Crowder. J., happened to be sitting this time, and he held distinctly that the mere relationship of counsel and client did not give a general power to compromise, and that there was no special authority shown j but on the contrary, an emphatic repudiation. The other judges held to their previous views ; but the practice of the Court j being to confirm rules for attachment only when the Judges were unanimous, the rule fell through, and the widow escaped as if by fire. The heir, who evidently had more confidence in the verdict already obtafned than in the result of a fresh trial, wenr to Cancery wi'h a supple, mental bill for a decree for a specific performance o£ the compromise (Swinfen v.!Swinfen, 27 L.J. 35, Eg.). And now a new actor appeared upon the scene, in the person of Kennedy, a provincial barrister practising at Birmingham, who had taken up the forlorn widow's cause, and who proved a champion very different from Thesiger. The Master of the Eolls (Romilly), in an able and exhaustive judgment, rejected the compromise, taking the same view as Crowder, that counsel had no power to give estates away at his own discretion. He instanced with approval a case within his own knowledge where a great advocate had in open Court refused to consent to compromise actually agreed to by his client, on the j ground that the client did nob under' stand the sacrifice he was making : and, refusing the specific performance prayed, be ordered a new trial, The judgment was the first orumb of comfort that had fallen to the widow's lot, but was, of course, far from pleasing to the heir, who appealed — only to get an excoriation from the Lords Justices (Swinfen v. Swinfen, 27 L. J., 69, Eg). Knight Bruce observing that the heir's attempt was one pis aller, and varying the Master of Rolls' decision in the widow's favor so far as to give her costs of the suit. The new trial accordingly came Qn a$ Stafford, in March 1858. The evidence of the letters remained, but a mass of other evidence was put in, all tending to show that the testator's mental faculties, if impaired at all, were not so

damaged as to deprive him of testa- . mentary cbijipetericy.: The^ judge | summed up againsfethe -widow, but the i jury were not influenced by. .His Lordshjp; and .returned a verdict establishing the will— r a,:,resu]^ di^e principally to the able . ad, yo ( cae,y r . apcL thorough mastery of the case "displayed by Kennedy. The heir, was not yefc shaken ;Qii however. He vent to the Master,. of Bolls for a new trial f Swinferi r. Swinfen, 28 L. J., Bi9, Eg.), bursar from getting iti the Master stated; \th*p hid the verdict been otherwise, he would have sent the case down again. In the course of argument Kennedy went far and wide for instances o£ physical imbecility combined with mental competency. Many eminent characters in history were referred to, amongst, others the great Maryborough, who, stricken with paralysis, his mouth awry, unable to articulate, i»as yefe competent to make a most ; important codicil just before his death ; Lord E'don, the famous Chancellor; Sir Herbert James Fust, who suffered from the very disease which affected the testator ', and a recent judge (not named) who, though struck with hydrocephale, yet performed his duties " with transcendent ability " to the very last. The whole report, in fact, is well worth reading by the student of medical jurisprudence. The writer ventures to think, from his limited observation of human, nature, that the desire for vengeance is usually stronger with the fair sex than with their soi disant lords and masters. MrsSwinfen was no exception to this rule. Flushed with Victory she now entered the lists against her late counsel, the august Chancellor hiniselfj and sued Lord Chelmsford for damages for a "fraudulent "compromise against instructions. (Swinfen v. &helnoafo*xly 29 1. J., N. S. 383, Eg.) This,-, how^ : ever wbs a little too much, and the Court unanimously dismissed her suit, and settled by its decision the powejea. and responsibilities of counsel/; Anc£ here, if this were a novel,; and wEtafe . a statement of facts, would -come i-th«; I obvious ancl happy conclusion* viz. (the I marriage of the plucky widow to her ; devoted advocate, and the usual j notice in the * Times '; " St. Gcpr^e*?' ; Hanover Sq uare — S w inf en to: Kennedyi t No cards." But unfortunately, ,• the; : afiairsj of mankind, seldom endJcor;rectly. Mrd Swinfen did not -beieonra i Mrs Kennedy, but she did beeping Mr* I Brown, and thereupon followed another ; great, suit, viz., the leading., cajs t e; ! p£ .Kennedy v. Brown and, V^ijfc^(3& L.J., 137, C.P.). Kenne% r.»ll?ge4 ;that, having given up . hiai. : otheiS , practice and devoted himself wholly >to jthe advocacy of the widow's righbi i both at the bar and! by /.wtttmg&'&fidf pamphlets *' designed id ire^der 'her ■ cause popular/ she had : lagree^jj.^pi return, to- pay him a ice of &%QsQ&)m the event of success, and i;or thisiSjimrh©; sued. Upon the argument English common lawyers became civilians for the nonce,. and. went deep into .' 'the mysteries of the lex cincta and theolij usages of the Roman patrpSS. and advocates. Chief Justice Erie; ; preside^ and delivered, perhaps, .. hig.: finest judgment, settling what, -in .fact, had hardly before been seriously doubted, that an English barrister's fee : is ; an honorarium, and cannot be made, ihe subject of a legal, claim. He. was terribly. : hard. an; .poor -Kennedy ; bjijb as a specimen ot' judicial eloquence, his deliverance can hardly be surpassed, and we cannot resist the. temptation*)! quoting therefrom the following dss^ cription of a model advocate ':—- -""Wjb are aware that in the cjasa of advocates^ as in every other numerous: class, there will be bad men taking, the wages of evil, and therewith also, for tbe^ost part, the early blight that awaits upon, the servants of evil. "We are i.- aware also that there will be many.jmen/of ordinary powers performing: ordinary > duties: without praise or blame^bitt the advocate entitled to permanent success must unite high powers ; of in. tellect with high principles; of duty His faculties aud acquirements . are tested by a ceaseless competition ptip. portioned to the prize to be. gained; that is, wealth and power aad.henor without, and active exercise; for the be&t gifts of mind within.. Hfc is trusted -with interests and privileges and. powers almost to an unlimited degree. His : client must trust to him at times for fortune and character, and lifo. The law trusts him witji.ra privilege, in respect of liberty f . pf speech, which is, in practice, bounded only by his own sense of duty ; and he> may have to speak on subjects ;cb:i»*» cerning.the deepest, of social life and the innermost feelings Qf,.she human, soul. . '"..''. . If. an., advocate with these qualities, stands, !; t>y the client in the time of : his; utmost need, regardless . alike of -popular clamor and powerful interest/' epealslhg with a boldness which a senSf* ofVduty can alone recommend,,,, we,..; say _£jhft service of such an advoe#j#>. 'jw f haypnd all price to the client.^ and suqlvjnen are the guarantees to. communities .of the dearest 'lights, and the words; iof such men carry a wholesome* spirit J to all who are influenced by .them. ; Sneh is the system of advocacy intended jby the law, requiring the,remunerat;jQn^to be by gratuity." Aud he then proceeds with little difficulty to. show,>. front a long course of precedent^ that' such;; an action as the present could not iig; >- Atfcer this nothing . was lefjf°for Kennedy but ruin, to which he/added, disgrace by certain unsavory . . stsite,. ments made in the bitterness of despair. He was disbarred,, and , died broken-hearted — perhaps th« only,instance of. a lawyer who saved- 'his client and ruined himself. As for Mrs Swinfen,she may, for all the writer knows, still be living, full of years and honors, at Syifinf en Hall } butj if so, she is' the so'le^surviyaj of the dramatis 2xrsonae in the "Rwinfen cases." Thesi&er,) CJpclr. burn, Eomilly, Knight, Bruc^ = fee, and all the other erat iamoua vadtvd oates aud Judges who figured" iuithis long litigation, have now passed to a world where, it is .to ; he> ..preswmed' briefs and special .retaua^rs, :a»e. , { un* known acd new trjaH •"• arfe-nofc allowed. ""■• r ' : '" : " ' ; ' ( .5- i!ri._- . * f r ; • ■ 7-r' "