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Central Criminal Court.

Duke, Mayor. Tenth Session.

Before Mr. Justice Erle.

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.