CHARLES FAIRFIELD.
16th September 1795
Reference Numbert17950916-73
VerdictNot Guilty

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441. CHARLES FAIRFIELD was indicted for feloniously stealing, on the 17th of August , sixteen exotic plants, value 7l. 11s. the goods of Daniel Grimwood , &c.

(The case opened by Mr. Knowlys.)

DANIEL GRIMWOOD , junior, sworn.

Q. Are you a nurseryman , and are your gardens at Kensington ? - Yes.

Q. What is the firm of the partnership? - Daniel Griotwood ; my father, Samuel Hodson , and Peter Barritt .

Q. Do you know the prisoner at the bar? - I never knew him previous to my going with the search warrant. On Monday, the 17th of August past, I was taking up in the nursery some plants to take into the country, there was a shower of rain, which occasioned me to go with our foreman into the house called the great stove; as soon as we went into the stove we sat ourselves on the curb, and the foreman in looking round missed a plant from a pot, he looked along the shelf and missed other exotic plants; he then looked into the bark pits. he missed another plant out of the bark pit, I see a vacancy, the earth was turned out of the pot, and put under a sheet of paper, upon the tea the pot that was so emptied was partly hid by some other large pots, standing on the curb, We then left that

house and went to a house called the geranion house, and there we missed other exotic plants, having been pulled up by the roots, and the root of one plant left in the pot, broken off, one of those plants so missed, was one that we has bought of Mr. Colvill, a nursery man in Chelsea; I was told that.

Q. Were all these plants growing in pots? - All growing in pots. On missing these plants I spoke to my father about the business, and he advised me to got a search warrant; I got a search warrant on Friday the 21st; we went to Bow-street, and Mr. Bond sent a man with our foreman to the premises of this Fairfield; Mr. Colvill had been there previous.

Q. What is your foremen's name? - William White . One of our young men was in the stove at the same time.

Q. Where did you go to make the search? - To the house of the prisoner, Fairfield, at Chelsea, I found him there, on the officer of the public office knocking at the door, and asking if Mr. Fairfield was at home, the officer went in, and I followed him, and I asked Charles Fairfield, the prisoner at the bar, if he had any plants of mine, he answered no; we told him we had a search warrant against him, and wished to look over his premises; we went into his garden situated at the back of this house at Chelsea.

Q. He is not a gardener by business? - I believe not, he is an artist I believe; I think to the best of my knowledge some of the plants were found in his little stove that he had got there, and I am certain as to the garden, I think part were in his little out house, and part in his garden; when we found all we could see belonged to us; we put them in a basket and took them to the public office. The plants are in court.

Q. When you took them did the prisoner say any thing respecting them? - He said he had bought them, he said further more from the manner in which we treated him, if he was not found guilty, we should suffer for his character; I think he said he bought one plant of Mr. Turrin; it was a geranion I think; I don't know that he pointed out which plant; we took him with the plants in the coach, and he was examined at the public office, and committed.

Mr. Moore. Pray in what description of place were these plants of your's? - in a house, the major part of which is glass, called the hot house.

Q. Was it not situated in your nursery? - Yes.

Mr. Moore to Court. Then I humbly submit that this could only be a trespass at common law.

Court. At common law it certainly was only a trespass to steal things growing in the ground, but these plants were not growing on the freehold ground, but in pots.

Mr. Moore. The nursery in which this house stands is tolerably open, a public place, and a gentleman has liberty to walk in the nursery to look at such plants as he wants for his own use? Have not persons of every description access to this place? do you stop any body from coming in? supposing I was to come tomorrow, would you turn me out? - Conceiving you to be a gentleman I should not.

Q. Is there not a path through it? - There is, but this part is all paled in.

Q. Do you come here to identify the plants? - I do not come here to identify them, but the young man that has come here will do it.

WILLIAM BIRD sworn.

Q. Are you a gardener, in the employment of Messrs Grimwood, Hudson, and Barritt? - Yes.

Q. Do you know the person of the prisoner at the bar? - Yes, perfectly well. On the 17th of August, about half past nine in the morning, I came from breakfast, and morning, I came from breakfast, and went into the stoves, where I particularly remarked two small plants in the long stove, in pots, the elica masonia and the mesembrianthimum.

Court. That is a very common plant? - No, it is a common genus, but a new species.

Mr. Knowlys. Were they in a good state? - Yes. in perfect health, growing. From thence I returned back about my work, with Mr. Grimwood, and went to look out some plants to take into the packing shed, and from that I returned again after some more plants, and took them into the shed again, where I observed the prisoner at the bar in the packing shed.

Q. You had not observed him there before? - I had not.

Q. Was Mr. Grimwood there then? - No, he was not; I asked the prisoner how he did.

Q. You knew him before? - Yes; he told me he was pretty well, and asked me how old Mr. Grimwood did? I told him he was indifferent, but better than he had been for some days before; I then after I had set down the plants in the packing shed, returned with the young man that was with me, to go to Mr. Grimwood, junior, Mr. Wicks, the foreman, and a gentleman's gardener that was there, and as I was going with the hand barrow the prisoner followed me, when I turned to go up the walk, I observed the prisoner to go to the door of the stove house, open it and go in.

Q. Do you mean the same stoves where you had seen these two plants? - In the me range; I then proceeded to my ork.

Q. Did you take any notice of that? - I did not; in about half an hour after I had observed the prisoner going in, I and Mr. Wicks, the foreman, we were going to take up some more plants from the front of the stove of our beautifulls; there came a heavy shower of rain that hindered us from going there; we went into the houses where the plants were, on the curb of the bark beds; Mr. Wicks, the foreman, cast his eye on the shelf where these plants stood; the first plant I observed was a Botany Bay plant, called the banksieur gone, and the two plants I mentioned before; a turneria ulmiformia, and a Botany Bay jeslamine to be gone out of the pots also, standing on a shelf in the front of the stove; the elica masonia had a glass over the pot; I had took the glass up to look at it, and put the glass over it again; the mesembrianthimum was on the same shelf, but no glass over it. Then we went to the other house called the geranion house.

Q. Does it communicate with this? - No, it does not; we observed one plant gone which I called a geranion becanaton, which was purchased of Mr. Colvill about a month before.

Q. Was it of a particular kind? - Yes, it was.

Q. What did your master give for it? - About three pounds, or three guineas, I don't know which; that was taken out of the pot together with some others which have no specific name that I know of; we returned again into the stove, where we had been before.

Q. Did you miss any thing from thence? - Out of the bark bed a pot had been taken, the mould scattered on the bark, covered with a paper, and a pot thrown behind some other plants that stood there on the curb.

Q. Do you know what plant had been contained in that pot? - No, I do not, but we missed another plant taken out of the pot, and the pot still remained in the

bark bed, a plant called neamanthis multistora.

Q. Did you miss any others? - I believe there was, but I do not recollect them by name.

Q. How long after you had seen the prisoner in the garden, was it that you went into the stove and missed these things? - It might be about half, of three quarters of an hour, it was not more than that.

Q. Was the prisoner gone at the time that you made this discovery? - Yes. I believe he was, I did not see him afterwards.

Q. Shall you be able to identify the plants when they are produced? - Yes, I shall.

Q. When Mr. Wicks missed the plants, you discovered what you had observed? - I did.

Q. The prisoner had permission to come into your garden? - I believe he had.

Mr. Moore. I believe Mr. Grimwood is a nurseryman to a very considerable extent, to as large extent as any man? - I cannot say, he has got a very large assortment.

Q. In this hot house I take it there are a very considerable number of plants? - There are some considerable number.

Q. Your master, however large he deals, has not monopolized all the exotics in Europe? - Some, and some I have never seen any where else.

Q. Do you pretend to tell me that in glancing your eye along this house, you can identify the plants? - I went to see whether this elica masonia wanted water or not, and I lifted up the glass to see whether it did or not, and this mesembrianthimum, I went to see whether that wanted any or not.

WILLIAM WYKES sworn.

Q. I believe you are the foreman? - I am. On Monday, the 17th of August last, Mr. Grimwood and I, and William Bird, went into the great stove; I directly observed a plant pulled out of a pot, it was a Botany Bay plant, what we call a banksieur; I directly looked along, and I observed a little elica masonia gone, that was on the shelf, and I looked a little further and I observed a plant called the mesemorianthimum gone, and I turned round and looked into the bark bed, and I observed a sierra leona bulb pulled out of the pot called the neamanthis multiflora; then I observed a Botany Bay jessamine pulled out of the pot, in the same house; from that we went to a house called the geranion house, and from there I missed a geranion mecanaton, which was bought about a month before of Mr. Colvill of Chelsea; there were several other geranions taken, but they were of the bulbous kinds, they were dead down to the pots; one was a geranion penatum.

Q. What were the others? - New kinds, without any name, any further than geranions, I do not particularly recollect any thing else.

Q. About what time of the day was it that you went and missed these things? - Near about twelve o'clock, between eleven and twelve, I believe.

Q. Had you seen the prisoner that day? - Not that day. The evening before that I had observed the plants, I see nothing disturbed.

Q. I believe in consequence of this you applied for a search warrant? - I did, on the Friday following.

Q. Did you know where the prisoner at the bar lived? - I did not, I think it was about two days after that I gained that information.

Q. On Friday did you go with the search warrant? - I did.

Q. Did Mr. Colvill go with you? - No, Mr. Grimwood and an officer of Bow-street.

Q. Had Mr. Colvill been there before you went there with a search warrant? - Yes, he had.

Q. When you went in tell us what you found? - The prisoner at the bar was then at work, I think he was painting; Mr. Grimwood asked him if he had not plants of his? he said no; we then told him we must go up into his garden, and take him along with us; we went into his green house, and there I found twelve plants, the same that we had lost the Monday before, and on the premises I found four other plants, two in the garden and two in the green house, that we had lost before that time.

Q. Are they here to be produced? - Five of them are. The prisoner said he had bought them; he could not say where he had bought them, nor what he had given for them; he said this at Bow-street.

Q. In whose custody have they been ever since? - I have had them under my own care.

Mr. Moore. With respect to some of these plants you have mentioned, they are very common plants? - This sort of bankfieur is not a very common plant, there are more sorts of bankfieur than one.

Q. Supposing you had gone to Mr. Fairfield's house without the ceremony of a search warrant, from what happened when you did go, did not you find that you might have seen all these things without insulting this gentleman, and taking him up; was there any thing like concealment? - They were put into the house, except two, and the elica masonia had a glass over it in the house.

JAMES COLVILL sworn.

Q. I believe you are a nurseryman? - Yes.

Q. Do you know Messrs. Grimwoods? - Yes, very well.

Q. Had you sold him any plant of the name of geranion mecanaton? - Yes.

Q. About how long before you was made acquainted with this business? -About a month; they bought two, and gave me six guineas for two, a red one and a white one.

Q. In consequence of any application of theirs, did you go to Mr. Fairfield's house? - Yes, on Monday, the same Monday as the plant was lost.

Q. Did you see any thing of Mr. Grimwood's property there; I speak only of the geranion that you sold to him? - Yes, I see that on the prisoner's premises, the red one.

Q. Was that so particular a plant in its nature, that you was able to distinguish it so as to swear to it? - Perfectly; I received the information on Monday; on Thursday I went down to Fairfield's house with a little bill.

Q. In what part of the prisoners premises did you see this plant? - At the further end of the hot house; I knew it, it was not actually in the same state as it was when I sold, because the leaves were getting yellow.

Mr. Moore. You say this geranion was in the same state, only it was materially altered; a considerable alteration takes place in a month in a plant, I take it? - In some plants

Q. And there has been in fact an alteration in this plant? - The leaves were decaying.

Q. So this is the only geranion of that kind in Europe? - No, I have got several.

Q. And this you say was considerably altered? - There were only two leaves on it, it is not a fast growing plant, it is of a har I texture.

Q. You went to this gentleman's house with a little bill; now I ask you whether you did not go for the purpose of gaining information for Mr. Grimwood,

and the little bill was a mere pretence? - Yes.

Q. Mr. Fairfield is your customer? -He was about two years ago, or rather better; if I was in Mr. Grimwood's shoes I should be very glad for him to have done the same for me

Q. Mr. Fairfield has at different times bought plants of you? - He has, to a very small account,

Q. Did he manifest any unwillingness to shew you his plants? - He did not, I wish he had; when I went on Monday to Mr. Grimwood's, Mr. Grimwood the elder said, will you go and get a warrant along with my foreman, then on a second thought he said no, I will stay a little longer, very likely the prisoner will be shifting them; it was concluded he would let it alone for two or three days; I took the bill down that day, Mr. Fairfield was not at home; on Thursday Mr. Fairfield was at home, and he took me down his garden, very fond of shewing me his collection, to my great surprise I see all the plants that the foreman described to me, that they had lost on Monday, much more to my surprise I see the plants which they told me they had lost in the spring.

Mr. Knowlys. In short you went with this pretence of a bill, in the way that would create the least alarm or suspicion? - I did in some sort. but it was determined that a search warrant should be out.

Q. You say this geranion had two leaves, had it more when you sold it? - No, it had not.

Q. Then the only variation it had undergone was, that these leaves were becoming a little yellow? - Yes, it was.

Q. Was that plant of two years growth? - No, it was a cutting from one of my others, it was an established plant, or else Mr. Grimwood would not have bought it; it was a cutting from another the autumn preceeding, a cutting from one of my own, under my own eye all the time.

Q. Had you made other cuttings from your own geranion? - Yes.

Q. Have you sold those? - Yes, several.

Jury. As a gardener, if you take a plant out of the pot and move it, is it not likely to fall by moving of it? - No, it is not likely to fall, it is not a succulent plant.(The plants produced)

Q. To Wicks. Is that the same geranion mecanaton that you bought of Mr. Colvill? - I am sure it is, it had leaves on it when I found it, but by being pulled up the leaves are falling off; they are gone; the day I lost it the leaves were in pretty good health; when I see it at Fairfield's the leaves were yellow, from its being pulled up out of the pot, the breaking the roots; when I potted it again I observed the roots had been broke, it was taken away in his pot, but badly potted, and I have re-potted it since; I am sure it is the plant; it is alive now.

The elica masonia has been re-potted, this species is a very scarce plant, we cannot buy one under five guineas.

Q. Are you able to say that that is your master's? - I am sure it is; we had another.

Q. But are they commonly to be found? - They are not, it is very scarce by the price of it.

Jury. I should suppose it very improbable for such a tender plant to be pulled up by the roots, and to keep alive after? - That is dead.

Mr. Knowlys. Did you find any other of the kind on Fairfield's premises? - No other of the kind. At first fight I knew it.

Q. The mesembrianthimum are you able to swear to that? - Yes, I am.

Q. What is the value of that to those that are curious? - Half a guinea.

Q. Is that to be found in other gardens? - I never see it but in one. I am positive it is the plant.

Q. Did you find any other of the kind in Mr. Fairfield's premises? - I did not observe any. I also transplanted that.

Mr. Moore. I understand that these plants not only understand a change, but you also reported them? - I did.

Q. With regard to this geranion, may not a man who has interest with his Majesty's gardener, at Kew, have plenty of them? - I cannot say.(The three plants deposed to also by Bird.)

Q. To Bird. Can you swear positively to them? - I can; I never see two plants alike in my life, exactly similar.

Q. Are you now studying botany? - Yes. I have been with Mr. Grimwood a twelve month, and it has always been my delight.

Mr. Moore. From your knowledge of botany you tell us that you never see two plants like; there are other gentlemen here who will till you a different story. Are you sure that your knowledge of plants is such that you cannot be deceived in a plant? - I am not deceived.

Q. Has there not been persons discharged from Mr. Grimwood's service for stealing of plants? - There was one discharged under the apprehension of stealing trees out of the nursery.

Q. Supposing a gentleman should be here that should say that you told him last night, that there were two plants of a kind stolen, what will you say to him? - I will say that he speaks falsely.(Mr. Colvill deposes to the geranion mecanaton, as the one he sold to Mr. Grimwood.)

Mr. Moore to Mr. Colvill. There are two ways of speaking to your knowledge of a plant. I want to know whether you can speak with complete certainty to the identity of a plant? - That plant is booked against the firm for three guineas.

Q. But looking at that plant, supposing it to be potted and repotted, and by the change that would be produced at the expiration of a month, should you be able then to speak to the indentity of it? - Yes, I can.

Jury. Can you identify that from one of the other cuttings which you had made and disposed of? - We can tell the face of a plant, especially of that scarce sort, as well as we can tell the face of a man. This here was more singular than the rest, and it had not altered any in the time that Mr. Grimwood had it, and therefore when I see it first I knew it again immediately.

Prisoner. I have counsel who will conduct my defence.

Mr. Moore to Mr. Grimwood, junior. Did you know that the things that were taken at the prisoner's garden must be produced at the trial against the prisoner? - Not till I was informed by Mr. Bond, and when the examination was over Mr. Bond told us particularly to take them into our own care, for the better preservation of the plants, and that I was to produce them at Hick's Hall, as well as here.

Q. Did you hope to make out your case of felony with producing the things stolen? - I knew nothing of that matter at all. The plants were very illy shifted when found, as such we shifted them to a greater advantage of the plants, as we were in hopes of saving them; and had we not had permission of the magistrate, we should not have done so; I had my doubts whether we had a right to bring them away in Mr. Fairfield's pots; Mr. Bond told me we had. We turned them out of his pots, the earth not being proper for the plants to grow in, nor the mode

of planting, for the better preservation of them, we shifted them according to our knowledge.

Q. Do you think they would be the better for the purpose of shewing them to the jury in this case? - That was not the case. It was for the preservation of the plants, in hopes that they would live.

JOHN FRAZIER sworn.

I am a nurseryman.

Q. Do you consider yourself to have a competent skill in Botany? - By no means; I do not.

Q. How long have you made it your study? - I have travelled upwards of fifty thousand miles in search of plants.

Q. Did you hear this student of botany give his evidence just now? Do you think that he could have that certainty that he pretends? - There is no man on earth can say that, for there is a likeness of every plant on the face of the earth, of the same species and genera.

Q. Have you, when you have been positive to a plant, had occasion to alter your judgment? - I have. Indeed I would as soon swear to a turnip as to one of these plants. If my child was here present, and his life was at stake I would not give my oath of it.

Q. Should you have any back wardness to proclaim it if you had that knowledge? - No. I have discovered above three hundred new species, and fifty new genera myself.

Mr. Knowlys. I don't know whether you have been busied in the cultivation of plants or no - I have.

Q. Do you mean to distinguish that you cannot distinguish one cutting from another? - It is impossible for you to distinguish an heath cutting from another of the same kind, not after they are gone out of your sight.

Q. That is exactly the thing which I want to know, whether when you have the two cuttings in your hand, one is not perceptible from the other? - There is so little difference that if I was to turn about I could not tell which it was.

Q. You know cuttings have no flowers on them in their first cuttings? - Yes, I beg your pardon; for we never collect specimens without flowers.

Q. Do you mean to say you cannot distinguish one cutting from another of the same plant? - It is impossible. Good God! only ask yourself. I remember last spring I was so foolish and hardy enough to swear to a plant, when I had a caution given me by Lord Coventry, which I shall never forget.

Q. Then it is only since last spring that you have taken up the opinion that you cannot swear to a plant? - No, it never was my opinion, but Lord Coventry confirmed my opinion against it.

Q. Do you mean to say that cuttings of the same plant are all alike? - There is no other difference than a large cutting or a small one.

Jury. Does the face differ, supposing they are cuttings of the same plant, will the leaf alter and grow different from the other? - Yes, they will some times, when they are put under the glass one plant will grow quicker than another, and that will alter the habit of them.

Q. In a rare plant should you not take so much notice of that plant as to know it again? - By no means. There are plants such as these are that I could not swear to after I had sold them one day.

Mr. Moore. You have frequently sold plants to Mr. Fairfield? - I have; I sold him the plant neamanthis multiflora.

Mr. Knowlys. Did you ever sell him the geranion mecanaton, or elica masoma or mesembrianthimum? - No.

CHARLES SCOBY sworn.

I am a gardener, I keep a nursery ground at Chelsea, near where the prisoner lived.

Q. Have you made botany your study? - A little; I am not what they call a proficient, nor do not pretend to it.

Q. Did Mr. Fairfield ever buy any plants of you? - Yes, he has frequently.

Q. Supposing these two plants to have been in his possession a considerable time, and exchanged from one pot to another, do you think you should know them again? - Not at all; there might be a plant I might know.

Q. Would you depose to that knowledge, on oath, at the distance of a month? - No, because it grows out of your knowledge.

Mr. Knowlys. I would ask you supposing, for instance, you had any remarkable plant in your possession, and was to part with it for three or four days, do you think you should be able to swear to it again at that distance of time? - No, I would not swear to it. There might be a plant that I might know, but I would not go to swear to that plant, because it might alter during the time.

Q. You do not deal in rare plants. Have you any at four or five guineas? - No, I have not.

Q. You deal in the common sort? - In the common sort.

JOSEPH SCOWEN sworn.

I am in the gardening line.

Q. Have you paid any attention to botany? - No, sir, I have not.

Q. You sell plants? - Yes, in the common line.

Q. In regard to those that you sell, should you like to depose, on your oath, concerning those that you sell, after they have been out of your possession and potted and repotted? - Potting and repotting makes a material difference, that throws the plant into a decline.

Q. Into such a decline that you would not swear to it? - Not after it has been out of my sight for a time.

Mr. Knowlys. You deal in common sort of plants, but even there with respect to them that are not potted and repotted. and have left you but three or four days, perhaps you can swear to them? - It make a material difference whether they are taken out of the small pot and put into a large pot, because then the change of the roots has not that effect; if it was a small plant and has got small roots it might have that change that I could not swear to it.

Q. I ask you this, whether you could not identify a plant after it had been out of your hands three or four days? - If it was an old plant, and was taken out of a small pot and put into a large one, I don't think that it would have that effect on a plant but a person might know it. I am of opinion that a person may be deceived if a plant moves young.

Q. I would ask you whether you are at all conversant in these expensive sort of plants? - I am not; I know nothing at all about them.

LEWIS VIDELL sworn.

I am an artist.

Q. You paint flowers? - Yes.

Q. You have made the appearance of flowers your particular study? - Yes.

Q. Now I would ask you, even with regard to plants that you have been employed to paint and trace accurately, whether at the distance of a month or week, you could swear to that plant again? - It is not possible.

Q. Have you ever been conversant in rearing or raising of flowers? - I have not.

Q. If any man says that you can distinguish any plant at the distance of a

week, you do not believe him? - I do not.

Q. Your art calls on you to be exceeding attentive to the subject you are delineating? - Yes, for twenty-two years.

Q. Notwithstanding that, supposing you have been drawing a curious plant, and had been shewn that plant at the distance of a week, should you know it again? - I should know it to be the same kind, but not the same plant. I have found a difference between night and morning; I have drawn a plant by candle light, and the next morning I have been obliged to take a fresh drawing.

Q. Do you think if you was told to take notice of the plant for the purpose of recollecting it at the distance of a week, that you should know it? - I should not. I may say it was the same sort, but not the same plant. It is not possible for any man living to swear to it.

The prisoner called four witnesses who gave him a good character, and said, that he had been a painter to the King of France at six hundred pounds a year.

Not GUILTY .

Tried by the first Middlesex Jury before Mr. Baron THOMPSON.


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