The Pamphlet Collection of Sir Robert Stout: Volume 12
[Q. Was there any foundation that there were at least sixty applicants for the business?]
Q. Was there any foundation that there were at least sixty applicants for the business? A. I had shown the books to one gentleman besides Mr. Smythies, he was the second—there were applications out of number—Mr. Smythies had no connexion at Aylesbury—it was entirely mine.
Cross-examined by Mr. Cooke. Q. Had you upwards of sixty applicants for the business? A. The letters were not addressed to me, but to my agent, and I really do not know; there were a great number—I did not see them all—I was clerk under Mr. Duncan, in the Eastern Counties office—I was paid according to what was done; there was no fixed sum—I think in 1848 I received more than 800l; I dare say in 1847 it was more—I went into Mr. Duncan's office in 1846—1 was not there at the time I offered this partnership to the professional world—I wished to come to London to practice, and told Mr. Duncan my intention—I was with him about a month or six weeks before Mr. Smythies came to Aylesbury—from that time I devoted my weekdays to Mr. Duncan—I was down at Aylesbury sometimes—I never passed a week there—I went to my own house, which is attached to the office—I sometimes went on Tuesday, Thursday, or Saturday—I have passed two consecutive days there in every month—the arrangement was that I should be there as much as I could, especially on Saturday—Saturday was the great business day—I understood that Mr. Smythies practiced in Monmouthshire before he page 340 came to Aylesbury—he told me so—I have no doubt of it—his father is a Clergyman and a Magistrate of the county of Essex—he is married, and has a family—I went down to seize the papers on Thursday 16th, I believe—I had not received notice of dissolution of partnership from Mr. Smythies on the 14th—I received it on the 15th—I believe I was writing my notice at the time it came—Mr. Meyrick brought it, and was present while I was writing mine—I knew that Mr. Smythies was in London transacting business for the office when I went down to Aylesbury to seize the papers, or I should not have done it—I did not make any appointment for him to come to London that day, I had nothing whatever to do with it—I did not know till after the afternoon of the 15th, after Mr. Smythies had given me notice, that he was going there—I took possession of every single paper—I searched out all the strictly private papers and sent them up to Mr. Meyrick's office, with his diaries and everything useful to his defence, and instructed him to inform Mr. Baines, his London agent, that they were there—the papers were chiefly bills—I looked them through before I parted with them—the letters that have been read were what I kept as essential to the prosecution—Mr. Smythies had a warrant against me for breaking into his office—I took Mr. Huddleston down to Aylesbury as my counsel—he came into the room and found me with the officer—he said, "Have you taken him into custody?"—he said, "Certainly not, and I do not mean to"—Mr. Huddleston said, "You had better take him"—I know Frederick Miles; I have seen him twice, I think—he is here—I have had frequent communications with Ezra Miles—I left Mr. Duncan six months ago—it was after my return from the continent last year—it must have been in Sept.—I was living in Palace-yard from Sept. to May, at Mr. Duncan's office—I continued in his office till he left the Eastern Counties—I did not continue in his service, I rented the office of him—I carried on business there exclusive of Mr. Smythies—I have that office now—I assisted Mr. Duncan up to the time he left the Eastern Counties—I have scarcely done anything with him since—I have done something for him—I have had some French business in hand.
Q. Did you offer to take Mr. Smythies as your managing clerk if he would only retire from being your partner, after you discovered this forgery? A. Yes; after I discovered the forgery, no—I proposed it to Mr. John Smythies who was the barrister in the cause—it was before the 15th of course, because that was my ultimatum—it was after the letter which I got on the Sunday morning: excuse me, but I have not given you a correct answer to that question; I offered Mr. Smythies to continue in partnership with him on one condition only, that he should instantly sign an agreement to enable me to go down to Aylesbury at any moment, and without any notice, to say, "Mr. Smythies, you are my partner no longer"—that was refused—an agreement was entered into when we first became partners, and a deed was prepared but not signed—the agreement was signed—I told Mr. Smythies, the barrister, that I should dissolve the partnership, and he said, "You can't, there is an agreement"—I did not on that say, "Then I will give him into custody"—I said I would have him struck off the rolls—I do not recollect saying, "I will make a charge of forgery against him"—I told him it was forgery—I told Mr. John Smythies I should have him struck off the rolls for that forgery—I was not at Bow-street when the case was heard before Mr. Henry—I was close by; I did not come into the Court—I know that the case was dismissed .—I believe Mr. Kirk was applied to prosecute Mr. Smythies—I never had any communication with him—I do not know whether he was applied to with my advice—I left it entirely in Mr. Humphreys' hands—I never wrote a page 341 letter to Mr. Kirk or Mr. Fluker in my life—I think it is very likely that I recommended Mr. Humphreys to apply to Mr. Kirk—I do not recollect—I employed Mr. Humphreys to conduct the prosecution—I said that I never applied to Mr. Kirk or Mr. Fluker to prosecute; I must correct myself, I have not the slightest recollection in the world of ever having written a letter either to Mr. Fluker or Mr. Kirk, but it is possible.
Mr. Serjeant Byles. You have said that after the letter of the 5th you offered to take him as a managing clerk? A. Yes; I did not make that offer or anything of the kind after I had had the communication from Mr. Soden through Ezra Miles: nor after I knew there was no original retainer—the latter part of the case I left entirely with Mr. Humphreys.
Frederick Miles. I accompanied Mr. Soden to Mr. Smythies' office in May 1847—I cannot remember that there was any document signed by Mr. Soden—Mr. Smythies asked him to become next friend to the infants—my uncle told he would do all he could for us, as far as advice and time went but he would not be liable for any costs—Mr. Smythies said he did not wish him to.
Cross-examined by Mr. Robinson. Q. Do you recollect when this was? A. In the spring of 1847—I have been twice with my uncle to Mr. Smythies' office—I went in with him every time—the last time uncle went I believe he was there before I was—that was not in the spring of 1847—I can undertake to swear that in the spring of 1847 I stayed the whole time my uncle did—I have had conversations with my uncle about this business—he has always said he never signed any paper—I do not know that my uncle signed a paper at any of the meetings—I have said I thought it was very likely he did do such a thing, I thought he would have signed one, and I inquired of my uncle, and he said he never did—I never saw him do it.
Court. Q. You mean your uncle is a kind relation, and you think it likely he would sign what was wanted for you? A. Yes; I said I thought it was likely he might.
Mr. Cooke, with Mr. Robinson, contended that the charge of tittering with intent to defraud, was not made out, no fraud having been perpetrated in consequence of the uttering, Mr. Soden having already given a verbal consent to act as next friend, (see The Queen v. Bolt, 2 Car. and Kir., p. 604); and that as to the forgery, there was no proof that it was committed within the jurisdiction of this Court, or that the defendant was in custody within the jurisdiction, he not having surrendered until the moment of trial, which would not satisfy the terms of the Act of Parliament. Mr. Serjeant Byles submitted that the surrender of the prisoner to take his trial would be a sufficient custody to give the Court jurisdiction. The Court was of opinion that there was evidence for the Jury both of forging and uttering with intent to defraud; but the question of jurisdiction should be reserved.
The Jury found the following special verdict: "Guilty of uttering the forged document with intent to defraud; and Guilty of the forgery with intent to defraud, but we find no proof of the forgery being committed within the jurisdiction of this Court."—To enter into his own recognizance in 100l., and find one surety in 50l., to appear and receive Judgment when called upon.
Henry Wise, Printer, Princes-street, Dunedin.