ESTHER GOLDSBOROUGH, JOHN PAYNE, ROBERT LOY.
13th January 1790
Reference Numbert17900113-102
VerdictsNot Guilty

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226. ESTHER GOLDSBOROUGH otherwise MOFFATT, otherwise MIFFIN , and JOHN PAYNE were indicted for feloniously stealing, on the 1st of January , one large silver cream pot and glass, value 40 s. a spoon case, value 8 s. a fork, value 4 s. two silver bread baskets, value 5 l. a silk gown and coat, value 40 s. a brocade gown, value 40 s. a green gold and silver silk gown and coat, value 42 s. a court dress, value 42 s. a scarlet ditto, value 42 s. a black silk gown and coat, lined with lilac silk, value 42 s. a sattin ditto, value 42 s. a black sattin ditto, value 42 s. a yellow ditto, value 42 s. a flesh coloured ditto, value 42 s. a rose coloured ditto, value 42 s. a snuff coloured ditto, value 40 s. a gold embroidered gown and coat, value 42 s. a muslin ditto, unmade, value 30 s. a muslin ditto, value 30 s. a white ditto, value 30 s. a dimity petticoat, value 5 s. one other worked petticoat, value 8 s. two ditto, value 8 s. two plain ditto, value 8 s. a pair of white sattin shoes, value 2 s. thirty-eight shifts, value 38 s. a white gown, value 30 s. eight petticoats, value 40 s. two table cloths, value 5 s. two rose coloured silk jackets, value 40 s. one sattin gown and petticoat, value 40 s. one ditto, value 40 s. one yellow jacket and petticoat, value 40 s. one sattin ditto, value 20 s. one ermine petticoat, value, 5 l. one flowered ditto, value 40 s. one lilac ditto, value 40 s. one yellow ditto, value 5 s. one white ditto, value 5 s. one blue lutestring ditto, value 20 s. one maroon ditto, value 20 s. one black silk ditto, value 40 s. a woman's gauze gown and petticoat, value 20 s. a green silk riding dress, value 20 s. a red silk ditto, value 5 s. a green velvet riding dress, value 20 s. an orange and scarlet ditto, value 20 s. seven shifts, value 7 s. twelve pair of silk stockings, value 12 s. two black silk cloaks, value 20 s. a worked muslin cloak, value 12 s. five table cloths, value 5 s. two gowns and petticoats, value 20 s. two pair of shoes, value 5 s. a star and order, set with brilliants, value 5 l. a pair of pearl drops, value 50 l. two rings, value 40 s. a pair of silver candlesticks, value 5 l. a silver tea-urn, value 20 l. the property of the Reverend William Horne , Clerk.

Another Count. for stealing the said goods, charging them to be the property of Mr. Henley .

And a third Count, for stealing the

said goods, charging them to be the property of the Right Honourable the Countess of Berghausen .

And ROBERT LOY otherwise MOLLOY was indicted for that he, before the committing of the said felony, on the said 1st day of January, feloniously and wickedly did counsel, hire, and command the said Esther Goldsborough, otherwise Moffatt, otherwise Miffin, and John Payne to do and commit the said felonies .

The case opened by Mr. Garrow as follows.

May it please your Lordship.

Gentlemen of the Jury. This is an indictment against the two prisoners at the bar, for stealing the various articles you have just heard enumerated by the officer of the Court, the property of the Countess of Berghausen; and, Gentlemen, it must be confessed that the Countess has acted very imprudently in this business; in order to explain which I must trouble you with a short part of the countess's history: Gentlemen, this lady married the Reverend Mr. Henley, who, some time after after their marriage, unfortunately became a lunatic; after which the prisoner Loy, alias Molloy, who represented himself to be a major in the Irish volunteers, got acquainted with the countess, and took every opportunity to ingratiate himself into her favour; and they lived some time together as husband and wife; he told her he was a gentleman of rank and family, and had a high station in India, and wished her to accompany him thither, which she consented to, after some persuasion, but upon condition that he would sign an instrument in ten thousand pounds penaltry; binding himself to treat her in all respects in every sense of the word, as the fond, tender, and affectionate wife of his heart; the phrase in the instrument, which I will repeat; is the fond, tender, and affectionate wife of his heart; and he was to treat her in every respect in a manner due to her exalted rank and station: this bond was executed, and they soon set sail for India, and although she always supplied him with cash, yet as soon as he got her on board, he treated her most brutally: after they arrived at India, they lived together for some time, but his treatment was such, she was obliged to separate from him: after living some time time apart, he again renewed his addresses to the countess, and prevailed on her to return to him: after some time, Gentlemen, he represented to her, that he had received advices from England that her husband was dead, and that it was fit they should come to England, which they accordingly did; and he then expected that of course she would then make him her husband; but this, in consequence of his repeated ill treatment of her, she was not very disposed to do: however, she after some time consented; when they arrived in London, they took a house and servants; and then the major who had, as it appears, kept up a criminal correspondence with the other prisoner Goldsborough, introduced her to the countess as his cousin; he had before talked of her as his cousin, who had lived in the family of Sir Cecil Wray , where the other prisoner Payne was a footman: Gentlemen, on the last day of the last year, the countess was prevailed upon to go out of town to a relation at Norwich, and the major and she went in their own carriage; but very soon after they set out, Mr. Molloy thought it more agreeable to ride on horseback, and took an opportunity of examining the mind of the prisoner Payne, to know whether him and the other servants had any disinclination to a new mistress; he found Payne a proper tool for his purpose: Gentlemen, when they came to Norwich, he used her so ill, that she suspected he had some design against her life; they separated and came to London; and at Ingatestone Mr. Molloy proposed that the countess should come to town in a stage coach that was passing; she consented, a place was taken, and she got into it; he was to have come on horseback, but he got into another stage coach, and took all her luggage out of the coach, and put it into his own; he told the countess, that as they probably should be very

late in London, it would be better to sleep at the inn where the stage coach should stop; she made no objection, in this way they arrived in London, when she came to London, the countess from discovering that her luggage had been gone, was alarmed; she went to her own house; when she came there, she learned, that the circumstance I am now about to state to you, had taken place on the last day of the old year: and major having written a letter to Goldsborough, under the name of Miffin, she and Payne went to the countess's house: Mrs. Goldsborough was described as the cousin of Mr. Molloy; she said, she came there to take care of the house; and the other prisoner was to take care of her; the very first thing she did, as she told a woman that was there, that she wanted to look into the rooms; that person, whose name was Mrs. Rich, told her, she believed she could not do that, for they were locked; says she, I have a key that will open them; in which was all this property; she took some trifling articles out; some sweet meats, and a bottle of brandy, and carried them down stairs: in the course of the evening she brought down a couple of silver tea urns, and shewed them to the servants; nothing else particular passed: the prisoner Payne went out; Mrs. Goldsborough proposed that there should be a candle left for him; and that he should have the key of the street door; what the object of that was, did not appear; but nothing was done then; the fact was not perpetrated till the next day. In the course of the evening Mrs. Goldsborough said, the servants might go out, as it was New Year's Day; and in the morning they went out, glad of a holiday; upon which Mrs. Goldsborough sent Payne for a cart, and all those articles, with several large trunks, were immediately packed up into the cart, by Payne and Goldsborough, and carried to an inn, at Snow-hill; this appeared to a neighbour to be a very extraordinary proceeding; he had not seen these two people there; and it struck him as a remarkable circumstance; in consequence of which he did what was extremely proper, he followed the cart to Snow-hill; it was accompanied by the two prisoners; when they came to Snow-hill he left them: they went there and entered this property into the warehouse, with directions to send it to Milford Haven, the next day; it was directed to Mrs. Miffin, at Milford Haven; and the prisoner Goldsborough took a place for herself in the waggon, by the name of Miffin; they continued there till the next day, when the landlord went there to stop the progress of these goods, for his rent; when he came there Mrs. Goldsborough, without much hesitation, paid him the rent, in the name of Mrs. Moffatt: in consequence of this, information was given at the publick office, in Poland-street; and some of the officers belonging to that office went to Snow-hill, where they found these two prisoners, Molloy and Goldsborough, in bed together, waiting to take their journey, with all these articles. When these people were searched, in the pocket of Mrs. Goldsborough were found bank notes, to the value of two hundred and ten pounds; which she said were given her by her cousin Molloy; and the prisoners said, they were all going to Ireland. Gentleman, at present I have not stated to you any material circumstance, by which you may connect Mr. Molloy as an accessary before the fact; but previous to his going out of London, on the very day before, he went to the lodgings of the prisoner Goldsborough, and gave her written instructions how to proceed; these instructions are in court, and will be produced to you gentlemen; in them he says,

"my love, take the two new trunks, and separate every thing of mine from her's; and every thing you think I have bought; every thing of muslin and callico, you know is mine: take all my new shirts, and as many dozen towels and handkerchiefs as you please, and all the plate, but one spoon and fork; for it will be all your's; and I hope in God, will make you and me happy for life; I shall write to you, Mrs. Moffatt, Milford Haven;

and you write to me, to be left at the post office, Norwich." Gentlemen, I am perfectly well aware that my lord sitting here, in a court of criminal jurisdiction, will not try whether there is a civil right existing in Mr. Molloy, to part of this property; nor can I say whether the countess will contend it with him; I can only prove that here is a clear palpable felony committed; that it is a felony, about which there is no dispute, if these things were not Mr. Molloy's property; but if Mr. Molloy had a right to this property, undoubtedly I cannot expect that other persons who remove it, by his order, should be found guilty of felony, by your verdict; but if you find a general order given to the prisoner Goldsborough, from Mr. Molloy to do as she pleased; if you find this man availing himself of the improper and immoral confidence placed in him by the countess; if you find the prisoners Goldsborough and Payne, changing their names, not like persons supposing they possessed a right, but like persons committing a felony, in that case, gentlemen, you will consider all these circumstances which will be fit for you to attend to, under the directions of the Court. Gentlemen, it has been said that these articles are the property of Mr. Molloy; if there is a spark of evidence of that sort, I am sure for one, I shall not press the prosecution; but if I can satisfy you that for a great while past, Mr. Molloy has had nothing to live on but the wages of his prostitution; and if respecting this woman, I can shew you that he regularly received her annuity; If I can shew you that she entered into engagements in India, for purchases which Molloy as her agent, had purchased for her; if I shew this was all her property, you will attentively consider the case. Gentlemen, I freely admit that it is not an idle assertion of claim to property, that will shield a man against a prosecution for a felony; but wherever there is a clear undoubted right, it ought not to be tried in this shape. Gentlemen, it does not occur to me that there is any circumstance that I have not stated. I shall call the witnesses, and then you will dispose of the prisoners as you shall see proper.

Court. Here are three prisoners. Molloy is indicted only as accessary before the fact; the other two as principals; their cases must be considered first, whether guilty or not: now the orders were -

Mr Garrow to Blacketer. Give me the letter which was found on the person of Goldsborough.

(Delivered into Court.)

Court. The case must depend on this letter; for unless it can be made appear that the prisoner Goldborough was guilty of a felony, they must be all acquitted; therefore, take it by steps: first of all the case is, that this woman, the prosecutrix, and the prisoner Molloy had lived together on very improper terms for a long time; there was at least a mixture of their property: but in order to constitute felony to this woman, you must shew that she expressly and explicitly knew that the articles she took were the property of the prosecutrix, and not of Molloy: the letter does not import that; but on the contrary, it imports to her that all the property that was there, belonged to Molloy; now, no matter whether true or false, if she acted under that idea: the letter directs her to separate every thing of his; and when you come to the general direction, it is, they are my goods, I have a right to take them; I shall leave her a spoon and a fork, but as to the other articles, they are your's; it looks not favourable certainly to the prisoner Molloy in a moral light, because he was acting in a very disgraceful manner; but that we have nothing to do with in this indictment for felony; therefore, I cannot say in this evidence, that I can tell the jury they have a ground for felony; the property you have got again; I am glad of it, for I think it is a very disgraceful business.

Mr. Garrow. My lord, I am desired to state, that I shall be able to prove that this woman, Goldsborough, had lived in

the service of the countess, and therefore, as far as there might be in point of legal construction, a mixture of property, she knew which was the countess's: then I submit, whether the general order, together with his own phrase,

"Take what you

"like," compared with the conduct of this woman and Molloy writing one to another, and sending the servants out of the way, and being found at the inn waiting to pursue their journey with these things, might not be a ground to leave the case to a jury; however, if in the end, there is a strong opinion in the mind of the Court, that this case cannot be made out, it will not become me to press it any further.

Court. It is so strong a one, that I cannot find what to leave to the jury; for however improper their conduct, I must state something which really amounts to a felony; and I cannot on this state of the case, say it amounts to a felony, though it is a most cruel thing to attempt to get the property away.

ALL THREE NOT GUILTY .

The property was all ordered to be delivered to the Countess of Berghausen.

Tried by the first Middlesex Jury before Mr. Justice BULLER.


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