Regina v. Henry Smythies.
Report of the trial of Henry Smythies before Mr. Justice Erle,
Henry Wise, Printer Dunedin Princes-Street
Central Criminal Court.
Duke, Mayor. Tenth Session.
1524. Henry Smythies, unlawfully forging and uttering a paper-writing, purporting to be a consent of Richard Soden to be the next friend to the infants in a certain Chancery suit; with intent to defraud the said Richard Soden: other Counts, varying the manner of stating the charge. Mr. Serjeant Byles, with Messrs. Bodkin and Huddleston, conducted the Prosecution.
Frederick Bull. I am managing clerk to Mr. Meyrick, who was the London agent of the firm of James and Smythies attornies, at Aylesbury. I attended to the conduct of a suit of Miles v. Miles in the Court of Chancery—Mr. Smythies, the defendant, was the attorney for the plaintiffs in that suit—Mr. James, his partner, did not interfere in the management of that suit in the slightest—in Oct. last year the plaintiff"s solicitor was changed—this is the order of the Court for the change, it is dated 10th Oct. 1848 (this was produced by James Fluker, managing clerk to Mr. Kirk, who was the attorney substituted for Mr. Smythies)—after the change of attornies took place, a bill of costs was prepared by Mr. Smythies and carried into the Master's office—this is it (produced)—it is made out to Mr. Richard Soden, as debtor to Henry Smythies—the amount is 355l. 5s 11d., and is signed Henry Smythies—it is the handwriting of Mr. Smythies—an action was brought against Mr. Soden for the recovery of that bill of costs—this is the nisi prius record in that action (produced)—a bill of particulars is annexed—the writ was issued on Friday, 16th Feb. 1849—the plea was, "Never indebted"—an order was afterwards made for taxing the bill—this is it (produced)—in pursuance of that order an appointment was made before Mr. Baines, the taxing Master on 3rd April: the bill of costs was then laid before the Master—Mr. Fluker, (Mr. Kirk's managing clerk), Frederick Miles, myself, and Mr. Smythies attended, and another assistant clerk of Mr. Kirk's, at the Master's chambers in Staple-inn—there is a charge in the bill of costs for taking the retainer of Mr. Soden in writing—there are no dates to the items—this date of 29th May, 1847, in the margin, is Mr. Smythies's writing—the item is, "attending you when you consented to become next friend, and taking your consent in writing, 6s. 8d."—when the Master's attention was drawn to that item, the retainer was handed to the Master, that was in consequence of the Master's asking when that consent was given, because on that consent Mr. Soden would only become liable from the date of that consent—Mr. Smythies produced the retainer to the Master—the date was fixed as 29th May, 1847, by Mr. Smythies, and in consequence of that the item of journey to town to consult with Counsel, three guineas, and rail and expenses one guinea, was taken off by the Master, as being antecedent to the retainer—the Master, in my presence, marked the retainer as a document produced before him—these are his initials on it, and the date, "3rd April, 1849"—Mr. Smythies did not give any account of it when he produced it. that I recollect, he merely handed it in—some observation was made by the Master as to the proof of the retainer being a question in the cause, and not to be decided by him there at chambers—Mr. Fluker had an opportunity of feeing the retainer; either I or the Master handed it immediately to him—Mr. Fluker handed it to Frederick page 333 Miles, and they both read it, and the assistant clerk also—at that time I was not at all aware whether there had been a written retainer or not—a letter of Mr. Soden's was also produced to the Master by Mr. Smythies—I do not know the date of it—on the back of the retainer there is endorsed "Richard Soden's consent to be next friend," in Mr. Smythies's writing—the body of the retainer is in his writing—the action stood for trial in the Exchequer on Thursday, 26th April—the record was withdrawn on that day—I attended a consultation of counsel with Mr. Smythies, and it was after that that the record was withdrawn—the papers in the suit and action were taken from Mr. Meyrick's office on Monday morning, 7th May, about ten o'clock, by Mr. Smythies—the retainer was among those papers—Mr. James afterwards came to our office, I think on the same day, he was then told of the removal of the papers—the letter that was produced to the Master by Mr. Smythies was, I believe, dated 12th May, 1847.
Cross-examined by Mr. W. H. Cooke. Q. Do you remember when that letter was produced, the Master saying, "Why this letter is sufficient consent of Mr. Soden, without troubling you any further?" A. No—I do not remember that—I do not remember any observation of the Master's with reference to the letter—to the best of my belief it was handed to Mr. Fluker, without any comment of the Master—it was first produced and shown to the Master, and by the Master handed to Mr. Fluker—we did not get the letter admitted by Mr. Soden's attorney, to be his handwriting; we gave notice to admit, but I do not think this letter was amongst them—Mr. James was a clerk to Mr. Duncan, solicitor to the Eastern Counties Railway—I believe he acted under Mr. Duncan as long as Mr. Duncan continued there—I do not know that it was on 12th May that Mr. Duncan ceased to be connected with the Company—I do not at all know when it was, I think it was in May—Mr. Meyrick is brother-in-law of Mr. James—I do not know in what way Mr. James was connected with the Eastern Counties Railway, he acted with Mr. Duncan, and was there for some years, but I do not know at all in what respect—the business at Aylesbury was all transacted by Mr. Smythies; Mr. James lived in Palace-yard, he went down occasionally, but seldom—I remember Mr. Smythies on one occasion, I do not know when, saying something about having lost the retainer—I should say that was before we went to the master to tax, but I do not know—I think in consequence of that I searched among the papers for such a document—it may have been the same day we went before the Master that he told me had lost .the retainer, or it may have been during the suit—the suit was going on for nearly a year and a half—I cannot give any nearer notion—I do not remember his wishing me to search, I remember a general conversation about a retainer being missing, my attention was not then called to it—I do not remember searching, or anything being done upon it, except a general observation about the retainer being missing—this retainer was produced by Mr. Smythies, as I thought at the time, to fix the date—it was produced before the Master as evidence of a date—the result of the change of attornies was to lead to Mr. Kirk being the person to act on the part of the infants in the cause—I do not know that the papers were removed on 7th May, to be handed to Mr Kirk by previous agreement—I know Mr. Smythies took them away, but for what purpose I do not know—he asked me for the papers in the suit of Smythies and Soden, and I handed him the bundle—I have not seen those papers since in the possion of Mr. Kirk—he is now conducting the suit—I think the business at Aylesbury was rather more than in the elder Mr. James' time; the business that we had in London increased, at least we had more these two years than page 334 we had had prior to that—I did not sort the papers out before Mr. Smythies took them away on 7th May—I had kept the London papers distinct from the country ones—I handed him the bundle—I had tied up all the papers in the cause of Miles v. Miles, and Smythies v. Soden, in different bundles, the London bundle he would not want—he applied to me for the papers, and I handed them to him in the bundle that I had already made up—these are the notices to admit—there is no notice to admit this consent-paper—this is the letter that was produced before the Master, it is dated 17th Nov. 1847—(read—" Castle Thorpe.—Nov. 17, 1847. Dear Sir,—I was from home yesterday when your letter came, and did not get home till it was too late for post. I do not exactly understand whether you meant two securities for 100l. each, or two for 1,000l. each. If you meant for 100l. each, Mr. Golby, of Stoney Stratford, and Mr. Willison, of Old Stratford, would become security; but as for 1,000l., I should not like to ask anybody to be bound for that sum, for k is a difficult matter now-a-days io say who is worth 1,000l. I am very willing to do all I can for the family, but if it cannot be done without my giving security for 2,000l., I shall give it up altogether, and remain, Sir, yours truly, Richard Soden." I see by the Master's initials that this is the letter that was produced, there was only one letter produced—Mr. Smythies got up the evidence in the cause of Smythies v. Soden—I should have been the witness to prove the work done—Mr. Smithies would have provided the necessary evidence to prove the retainer—Mr. James was to be called as a witness to prove that he was not a solicitor in Chancery, and therefore had no interest as partner in the Chancery proceedings—The retainer was here read, as follows—" In Chancery: Miles against Miles—I hereby consent to be next friend to the infants for the purposes of this suit. Richard Soden."—Endorsed "Richard Soden's consent to be next friend."
Richard Soden. I am an innkeeper at Castle Thorpe, Buckinghamshire, and am uncle by marriage to the plaintiffs, in "Miles v. Miles." In May, 1847, they were infants—the signature to this retainer is not my writing—I never signed that or any instrument to that effect, or authorised any person to sign it—this signature is very like my writing—Mr. Smythies was solicitor for the plaintiffs in the Chancery suit—I believe the first day I saw Mr. Smythies was on 29 May, 1847. at his office at Aylesbury—I went there, in consequence of a note I had from one of my nieces—my nephew, Frederick Miles accompanied me, he introduced me to Mr. Smythies—I told him I should have no objection to his making use of my name as next friend, to serve the children—I was very willing to do all I could to serve the children as far as my advice and time went, but I would not lay myself responsible for any t costs—he said, "You will not be called upon for that"—I did not sign any paper—I frequently saw Mr. Smythies on subsequent occasions—I never signed any document on any of those occasions, nor was the subject of costs mentioned between us—an action was afterwards brought against me, which I defended—(looking at letters)—these letters to Mr. Smythies are my writing.
Cross-examined by Mr. Cooke. Q. Were the Miles' the children of your sister, or your wife's sister? A. My wife's sister; at the death of the father there was not only an estate, but the farming-business to be provided for—the father had an estate which he farmed himself—he left a quantity of stock—he left a number of debtors—he had eight children; several were sons—one of the objects of the suit was to keep the farm going on, if they could, for the benefit of the family—a proposal was made to sell; I certainly approved of that: Mr. Smythies said it was necessary, and advised the sale page 335 —some of the family objected to the sale, and employed Mr. Kirk—I employed him afterwards, and it was agreed on by the family that he should take the place of Mr. Smythies—I am released by Mr. Kirk from the costs—before I had that conversation with Mr. Smythies I had seen or heard from one of my nieces—I had never before the morning I went to Mr. Smythies been asked to act the part of next friend—I understood Mr. Smythies wanted me to be next friend, and I went to see him in consequence of a communication on the subject—I understood that the costs would come out of the estate—I said I would not be responsible for the costs, and I did not say any more about them—I was not told that the costs would come out of the estate—I always understood so from the family—it was an understood thing that Mr. Smythies' costs would be paid by the estate, I was only lending my name—I should think on that occasion, in May, I was at his office twenty minutes or half an hour—I was not an hour there—I have been at his office several times about this suit, and wrote several letters—I always said I would assist all in my power as far as my advice and time went—I came up to Mr. Merrick's office in Furnival's-inn with the Messrs. Miles—I tendered them every assistance I could—I did not attend the consultation—I never spoke to Mr. James until I attended at Bow-street—I had never seen him till a day or two before—I went to him, in consequence of his sending for me—I was applied to, to be prosecutor against Mr. Smythies at Bow-street—Mr. James had never been my solicitor before that—Mr. James did not apply to me himself—he did not speak to me at Aylesbury—I had a letter on the Monday night about coming to London—I came, and saw Mr. James—he said it would be necessary for me to be in London—I was examined as a witness at Bow-street—I represented myself as the prosecutor when the summons was taken out—1 did not hear myself mentioned as being the prosecutor—I do not think I should have prosecuted—I was glad to get out of it—I have written to Mr. Smythies in the progress of the cause—the letters are here—I pledge my oath I never signed any paper at the office at Aylesbury—I all along felt satisfied I had never signed any paper—I was asked if I had signed the retainer, and I said I had not the slightest recollection of signing anything—I was so far positive as that—I do not recollect saying, "I do not recollect having done so; I may have said so"—it is so long ago I cannot charge my memory—I never told Mr. Kirk that—I did not tell Mr. Kirk's clerk that I was not certain whether I had signed it or not, it was so long ago—I said I never recollected signing anything, and it was an extraordinary thing that I should have signed it and not know anything of it—I said I never signed anything to make myself liable for costs—f never recollect having any doubt about it—I never signed any paper to that effect—I have not the slightest doubt—I did not at first feel that my memory was doubtful in consequence of the time that had elapsed—the suit is not over yet—Mr. Kirk still carries it on for the family—the action that was brought by Mr. Smythies has been arranged on the part of the family by Mr. Kirk, and he has given me a release—the family employed Mr. Kirk to defend the action—that was on the ground that I had never consented to act as next friend—I never intended to dispute that I meant to act as next friend—I was willing to render assistance and advice, and the family were willing to give such costs as he was entitled to out of the estate.
Mr. Huddleston. Q. When was that conversation with Mr. Kirk? A. I do not recollect the day; it was after I was before the Master—Mr. Kirk told me that before the Master he had seen a document produced which purported to be in my handwriting—that was when I made the observation page 336 —my solicitors, Messrs. Few and Hamilton, wrote to me before I went to Bow-street—they are my solicitors still—I do not recollect that I wrote any other letters than those produced—I did not make copies of them all—I remember seeing Mr. James at Aylesbury when the charge was made against him by Mr. Smythies—I first saw Mr. James on this business at the Magistrate's rooms at Aylesbury on the Saturday that it was heard—I know Ezra Miles; I had before that sent him to Mr. James.—(Several letters passing between Mr. Soden and Mr. Smythies were here read, chiefly relating to the management of the farm.)
James James. I am an attorney of the Court of Queen's Bench—i am not an attorney of the Court of Chancery—I have" practiced at Aylesbury three years, where my father and grandfather carried on business before me—I was previously in the office of Crowder and Maynard—Mr. Smythies became my partner in the September following my father's death; Sept. 1846—there was a Chancery suit in our office, Miles v. Miles, the management of which Mr. Smythies had entirely—I was aware that there was an action pending, after the change of attorneys, by Mr. Smythies against Mr. Soden—I heard the record in that action was withdrawn, or intended to be withdrawn on 26th April: Mr. Smythies came to me in Palace-yard, and explained to me the reason of his withdrawing it—I asked him how it was, after having given me such decided opinions as to Mr. Soden's liability to pay the costs, he should withdraw the record at the last moment—he had breakfasted with me that morning, and left me to go to the consultation—he came back, and told me that the record was withdrawn; that he told Mr. Hill that Fluker was to be called as a witness, and that Mr. Hill knew Fluker to be so great a blackguard that it would not be safe to allow him to go into the box—i said, "Well, but Mr. Hill could cross-examine him"—he said, "Oh, they will be asked it all before"—i then said, "You had better settle"—not a word was then said about the retainer—on Saturday, 5th May, at Aylesbury, i asked him how he came to withdraw the record, and he then said he had lost the retainer—I said, "But there was a retainer produced before the Master"—he said that was a copy—I asked him who made it—he said he did, he rewrote it from memory—I asked him if he signed Mr. Soden's name to it, he said he did—I asked him if he imitated the signature, he said he did—I made use of an oath, and said, "It is forgery, Smythies; it is 'forgery!"—he said, "You may call it so if you please"—I said, "It is the first time such a thing has ever been done in this office, and I will take good care it is the last;" and I left him, without speaking another word—that evening I went into Oxfordshire, and next morning I wrote him this letter (read)—"Sunday morning,—Dear Smythies, I regret beyond expression that, after having passed the most uneasy night I ever had, in reflecting upon the facts which our conversation of yesterday disclosed, that I feel myself imperatively called upon to tell you, without disguise, that the feelings of regard and esteem which I bore towards you have undergone a total change. From our first acquaintance, I placed myself entirely in your hands with the greatest confidence; there was nothing I concealed from you; even any private letters were opened by you at my request. The business and its connections, which I avoided representing even at 800l. a year, turned out to be double that amount; and as the returns came in slowly, I allowed you to take your share whilst I spent the money which I had earned elsewhere, and which I ought, in justice to myself, to have invested. Everything in the shape of money was under your control, almost exclusively; in fact, I treated you more like a brother than a stranger; and how have you repaid this confidence? After page 337 involving me and two of the oldest friends the office has, in the meshes of that infernal Chancery suit, you, in order to secure the costs, substituted a retainer in your handwriting for the original, which you had lost. Now, was this honest between you and the client, or proper conduct towards me? I will not, Smythies, in memory of what has passed between us during the last two years, characterise such conduct in the terms it deserves. Your own character you may value as you please, and part with it how you please: but whilst you were connected with me, you had no right to compromise it; and thus reflect upon mine. For myself, I value honour more than life. In God's name what have I done, that I and my sisters should be recklessly ruined, without my having an opportunity of averting the disaster? For even when you found that the plot had miscarried, and that you had fallen into your own snare, you deceived me, and the true state of the case was carefully concealed from me. But although I could write pages on the subject, it is more than I can bear. But I cannot conclude without saying that the trust and confidence which I placed in you, relying upon you as a man of prudence and honour, is lost, irretrievably lost. The course I shall pursue will depend upon the advice my friends may give me; but I do not see that there can be two opinions on the subject. The only difficulty I feel is, in having to make so humiliating a statement to any man. I shall leave for town by the ten o'clock train from Aylesbury tomorrow; and remain yours, &c., J. James."—The two oldest friends alluded to there were Mr. Henry Hayward, who was to be receiver, and Mr. Neale, steward to Lord Carrington, who was one of the sureties—Lord Carrington is a client of mine, he is the lord-lieutenant of the county—at the time I wrote this letter I did not know that Mr. Soden had denied giving any retainer at all—by the expression, "the true state of the case was carefully concealed from me," I meant, that when he found it was necessary to withdraw the record, to prevent the exposure of the document being a false one, that he had told me an untruth about Mr. Hill and Mr. Fluker, I meant to express that—I received from him a letter which crossed mine of the same date—this is it, it is his writing—(read)—"Aylesbury, 5th May, 1849—My dear James, I think it due to you and myself "to say that I agree in your remarks respecting the retainer, and have felt ashamed of the act ever since it occurred. I might, by stating the circumstances out of which it occurred, extenuate the act; but it was certainly wrong, and ought not to have been done. It is very difficult not to do wrong sometimes, particularly under great provocation. I feel the more upon the subject, because, as partner, you are somewhat compromised by what I do. I will however be more careful for the future, and trust you will never again have occasion to be dissatisfied with me. Very truly yours, Henry Smythies."—I received this other letter from him, and I suppose it was in answer to mine of 5th May—(read)—"Aylesbury, Sunday evening, 6th May—Dear James, I have just received your letter of this morning, which I must say was not wholly unexpected. I have long perceived that you were discontented, and I anticipated your taking this opportunity of expressing your feelings. It is not my wish to deny that, in some respects, your behaviour towards me has been kind and gratifying, particularly with regard to pecuniary affairs. You remind me that you left me the entire control of the business, but you omit to state that you avoided every occasion of advising with me, and that when I have fallen into unforeseen error, you reproached me without mercy and without consideration. When you state that you valued the business at not more than 800l. a year, that was the average of the business during your father's time; and if during my time the business page 338 has doubled, surely you are in some measure indebted to my care and attention for it, and must admit that I have ever acted with the strictest integrity, and not abused the confidence you placed in me. I have always considered, and so consider, that your charges against me relative to the suit of Miles v. Miles, are most unjust and ungenerous. Neither you nor your two friends have been injured in the slightest degree, nor are you likely to be so. You imagine evil, and then upbraid me as the author. You speak of the revelations made during an interview yesterday, but you were informed of everything by my brother three days since. You came into the office, knowing the whole tacts, and you talked upon indifferent subjects. You left the office, returned, and again talked upon indifferent subjects, and this whilst you were meditating your attack. At length you entered upon the subject, proving by your questions that you were fully informed upon every point, and then gave vent to your indignation in terms of unsparing severity. How am I to understand this? I wrote a letter yesterday, addressed to you in town, so totally at variance with the spirit of yours, that I am under the necessity of recalling it, and shall expect it to be returned to me unopened. I shall also go to London to-morrow to have this matter fully investigated. I shall expect you at Furnival's Inn, at half-past twelve.
Q. Had there been, that you are aware of, any discontent exhibited by you towards Mr. Smythies previous to this letter? A. Yes, there had—I complained of his commencing the suit and altogether, and his conduct with reference to the articled clerk--I had not received any premium from him when we entered into partnership—I had been led to suppose that this was a copy—In May last I received a communication on the subject from Mr. Soden, through Ezra Miles—it was on the afternoon of the day upon which I gave Mr. Smythies notice of dissolution, on 15th May—before that I had no knowledge or suspicion that there had not existed an original retainer—in consequence of what I learnt from Ezra Miles, I went down to Aylesbury to seize the papers—I took a Mr. Aubertin with me—1 broke open Mr. Smythies' desk, and removed every paper of every description almost in the office—I found this retainer in his desk, and also these seven letters—five of them were tied up together with a piece of green tape, and the other two were in the corner of the drawer—in the retainer the signature "Richard" has the small "d" after "Rich," and also in the five letters, but not in the two—in consequence of my breaking open the desk, I appeared before a Magistrate—I was not taken into custody, a warrant was issued—I came down to Aylesbury, and the officer came, and Mr. Huddleston insisted on his taking me into custody, and thereupon I walked to the Magistrate—the Magistrate at once dismissed the charge—I received this letter, dated 12th May, from Mr. Smythies on 13th—it was sent to me—a draft of it was found in the drawer--(letter read—"Aylesbury, 12th May, 1849. Dear James,—I confess myself at a loss to understand the principle upon which you are acting towards me." The following passage here occurred in the draft, but was omitted in the letter: "I know it is not your nature to act unjustly to anybody, and I cannot think you would mark me out for a different course of treatment.") "I suspect you are not acquainted with the facts, I will therefore state them. Doubtless you recollect telling me to sue all the Miles' party for our costs, and that if we got only sufficient to pay agents' costs, it would be better to get clear of the matter. I proceeded to do so, and, upon looking up the evidence, I discovered that I had mislaid the retainer. Fully expecting to find it, and the wording of it being fresh in my memory, I re-wrote it, and page 339 laid the duplicate, together with the other papers, before my brother, to advise upon evidence—upon the taxation Kirk's clerk asked to see the retainer. I might have refused to show it him, for he had no right to see it; but as I had no cause for concealment, having the duplicate among the papers, I gave it to him, making no remark; he copied it, and returned it to me. Having failed to find the original, the document was left out of the brief, upon which my brother told me of the omission, and I said it was omitted purposely, I having lost the original. The circumstance was mentioned at the consultatisn, but Mr. Hill being called into Court, the consultation was adjourned. Afterwards, and after I saw you, my brother advised me to withdraw the Record. I thought we could do without the retainer, as we had other evidence, but nevertheless took his advice, and after making terms with the defendant, and getting a positive assurance from him that the suit should be continued, and the costs paid out of the first moneys realized, I withdrew the Record. You charge me with having concealed from you the fact of my having lost the retainer. Call to mind the remarks you made to me when you only suspected me of trifling, and ask yourself what I had to expect if I informed you of so careless an act as losing a retainer; and can you be surprised at my not telling you? Having no papers in the suit in the office when I took the retainer, I no doubt put it somewhere by itself, and so it was mislaid. You wish me to dissolve the partnership; be it so, I consent to sell out, and leave Aylesbury altogether You may say that having come in for nothing, I ought not to expect to sell. I reply, when you took me into partnership, you could not get any desirable person not only to purchase, but to take it as a gift. I have heard I was the last of sixty applicants; perhaps there is nothing to sell now; if so, I leave the business as I found it; but if there is anything to sell, it must be through me that it is so; and as you will not be prejudiced, you ought not to object to my reaping the full benefit of my own exertions; nor would you, I think, wish to send me into the world without giving me the chance of providing a fund to establish myself elsewhere. Of course I shall not sell to any one objectionable to yourself, I have not yet received my recalled letter.
"I am yours, &c.
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.