Patience Swinfen v Frederick Hay Swinfen
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1857 |
| Date | 12 January 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1459
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 303. For subsequent proceedings see 1 C. B. N. S. 364, and in Chancery, 24 Beav. 549; 2 De G & J. 381. See Strauss v. Francis, 1866, L. R. 1 Q. B. 381; In re Wood, 1872, 21 W. R. 104; Holt v. Jesse, 1876, 3 Ch. D. 177; Neale v. Gordon-Lennax, [1902] 1 K. B. 843; [1902], A. C. 465.
patience swinfen v. frederick hay swinfen. June 11, 1856. [S. C. 25 L. J. C. P. 303. For subsequent proceedings see 1 C. B. N. S. 364, and in Chancery, 24 Beav. 549; 2 De G. & J. 381. See Strauss v. Francis, 1866, L. E. 1 Q. B. 381 ; In re Wood, 1872, 21 W. E. 104; Holt v. Jesse, 1876, 3 Ch. D. 177; 'Neale v. Gordon-Lennox, [1902] 1 K. B. 843; [1902], A. C. 465.] To sustain an attachment for disobedience of a rule of court requiring the party to execute a conveyance, it is not enough merely to serve him with a copy and to shew him the original rule: there must be an express demand upon him to do the act which the rule commands him to do.-This court may issue an attachment for disobedience of a rule drawn up on an order of nisi prius made at the trial of an issue directed by the court of Chancery.-The court will not inquire into the authority of counsel to agree to a compromise of a cause at nisi prius. On the 15th of March, 1856, an issue directed by the Master of the Eolls, by an order dated the 30th of July, 1855, made in a suit in Chancery of Swinfen v. Swinfen, to try the validity of the will of one Samuel Swinfen, deceased, came on for trial before Cresswell, J., and a special jury, at the assizes at Stafford. At the close of the first day of the trial, negotiations for an arrangement took place between the leading counsel for the respective parties, and ultimately the following terms were finally agreed upon and embodied in a memoran-[486]-dum, which was signed by them in the presence of the attorneys on both sides, in the following terms:- " Terms of compromise. Juror to be withdrawn. Estate to be conveyed by plaintiff at law to defendant in fee, free of incumbrance, if any, created since death of Samuel Swinfen ; such conveyance to date from Michaelmas, 1855. Defendant to secure to plaintiff an annuity for her life on the estate of 10001. a year, inclusive of the 3001. a year already secured to her on estate, also to date from Michaelmas, 1855. If any charge is existing on the estate created prior to the death of Samuel Swinfen, the interest to be borne in equal moieties. Plaintiff's costs as between attorney and client, not exceeding 12501., to be paid by defendant. Power to either party to make this agreement a rule of court. In event of any question arising on the above terms, the same to be referred to Sir F. T. and the Attorney General. The house and 'grounds to be occupied by plaintiff, without payment of rent, till Michaelmas next." This memorandum was embodied in an order of nisi prius, which was afterwards made a rule of court. On the 24th of March, 1856, the attorneys for the defendant wrote to Mr. C. Simpson, of Lichfield (who was the solicitor for the plaintiff in the suit, and her attorney in the issue, and who attended the trial), as follows :- "Sir,-To enable us to give counsel the necessary instructions for carrying out the compromise, we ought to have a copy of the mortgage to the late Mr. Swinfen's trustees of the property : we believe no re-conveyance was ever executed. We should like also to have a list of the deeds relating to the property : will you be good enough to supply us with such copy and list at your early convenience 1 We shall also be obliged by your letting, us have the account of the personal property of the late Mr. Swinfen as early as you can." [487] On the 31st of March, the defendant's attorneys again wrote to Simpson, as follows:- " We have written to you twice on this subject, and have not been favoured with any reply. We understand from Messrs. Cole (the London agents) that your client intends, if she can, to evade, the performance of the agreement entered into by her for the settlement of the question in dispute. Unless we hear from you satisfactorily by return of post, we shall assume that such is her intention and yours, and we shall act accordingly." On the 1st of April,; Mr. Simpson wrote to the defendant's attorneys as follows :- " Gentlemen, -Swinfen, deceased. In reply to yours, received to-day, I should 1460 SWINFEN V. SWINTEN 18C. B.488. have thought the more natural course would be to assume the due performance of the agreement until you had notice to the contrary, rather than write 'Unless I hear from you satisfactorily by return of post, we shall assume that it is your intention to repudiate it, and act accordingly.' Acting accordingly means further litigation, I presume. I might not have received your letter to-day; yet, according to your threat, you would have resumed hostilities to-morrow. I notice your assertion that you understand the intention of Mrs. Swinfen from Messrs. Cole, merely to remark that I do not believe those gentlemen have given you such information. I have never expressed an intention to resist the agreement, arid have received no instructions to do so. I had no concern in the arrangement of the compromise, except to object to it; nor had Mrs. Swinfen : it was made against her positive directions; and I have not hesitated to speak of it in the strongest terms of disapprobation. That it was a great wrong on one side or the other, is conceded by all whose opinion is worthy of attention. Of course, if Mrs. Swinfen instructs me to resist the course of action on the agreement, and if she should be well advised to do so, I am [488] at liberty to follow her instructions; and I will in that case give you the earliest possible notice : but, in the meantime, I must protest against inventions,'and request you to refrain from communicating to me statements imputed to my agents. I do not know who are your agents here, and therefore I have no means of reciprocating this Metropolitan recreation." In reply to this letter, the defendant's attorney, on the 2nd of April, wrote to Simpson as follows :- "Sir,-Swinfen, deceased. We have received your letter'of yesterday, and are extremely sorry that the evasive manner in which you think proper to treat our communications makes it clear that we cannot, with any regard to the interests entrusted to us, continue our endeavours to conduct business with you, except under the support of a court of justice. We must, therefore, proceed as we may be advised, to compel you to deal seriously and properly with this matter ; and you will recollect that the amount we are to pay for costs is limited, and that further costs rendered necessary by your misconduct will fall on your client." On the 16th of April, the defendant's attorneys again addressed Simpson as follows :- " Sir,-Smnfen v. Swinfen. It is probably superfluous; but we think it right to inform you, that, as you have taken no step to supply us with the information requisite to enable us to proceed to carry out the agreement for settlement of the matter in dispute in this cause, which we requested you on the 24th'ult. to furnish us with, counsel is now instructed to prepare a supplemental bill for enforcing the agreement; and we shall seek to throw the costs thereof upon your client." On the 18th of April, Simpson wrote to the defendant's attorneys as follows :- "Gentlemen,-Mrs. Swinfen. I have received your [489] letter of the 16th, and forwarded it to Mr. John Cole, as I did the preceding one, in which you announced your intention to apply to some court on some pretext or other.- Probably you may be able to correspond with Mr. Cole to a mere useful purpose1 and with more dispatch than with me. I have referred to your letter of the 24th ult., without being able to discover which mortgage you inquire after." " ; The defendant's attorneys afterwards had an interview with Mr. Cole, Simpson's London agent, with reference to the matters in question, and on the 29th of April wrote to him, as follows :- "Dear Sir,-Swinfen. Your explanation as to the deeds for which you applied to Mr. Dendy is satisfactory. Mr. H. is proceeding with the bill against Mrs. H. Swinfen for enforcing the agreement. We think it, however, much to be regretted, that, where there is now no room for question, further litigation should take place. We want to know,-first, whether Mrs. H. Swinfen will or will not carry out the agreement,-secondly, if she will, we want to be furnished with the abstract of title, shewing the existing incumbrances on the estate, and present position of the title, to enable us to prepare the conveyance according to the agreement. Thirdly, I want to settle with you what land Mrs. H. Swinfen is to occupy under the agreement, as she holds certain arable and pasture land, and the woods and lake, besides the house and grounds," &c. On 28th of April Mr. Cole informed the defendant's attorneys that he had forwarded a copy of their letter to Simpson; and on the 1st of May he (Cole) wrote to them, as follows:- 18C.B. 490. SWINFEN V. SWINFEN 1461 "Dear Sirs,-Swinfen. I have received from Mr. Simpson the views of Mrs. Swinfen on your last letter, so far as regards the arrangement made by counsel at the Stafford Assizes; and the substance is, that she is [490] not disposed to carry out the terms thereof, 'on the ground of the arrangement having been made, not only without her sanction, but directly in opposition to her wishes. Under these circumstances, I conclude you will have to bring the matter before the court in such way as you may be advised.'^ Upon affidavits setting out the above facts, and stating, that Mrs. Swinfen was on the 21st of May served with the rule of court, but that she had not hitherto complied with it, nor had the deponent (defendant's attorney) received any communication whatever from her attorney or agent...
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