The Express.
London, England, 1857-11-21 00:00:00

COURT OF QUEEN'S BENCH.

(Mins in Basco, before Lord Cearepbell and loather Cole-
ridge ma Wighiesen.)

THE QUEEN .. KENNEDY AND OTHERS.

THE ROYAL BRITISH BANK.

Bfr F. Theeiges said that In the COM of the Boys!
British Dank, severe rake bad bets obtained on behalf
of the defewients in which he had sow to show Cl6BO.
Before he did so, however, be wished to explain the macs
of the absence of the Solicitor-General, that it might not Do

considered that ha was neglecting his public duties in not
appealing M support of the prosecution. On the office
of Solicitor-General becoming vacant, the Attorney-
Gianni bad, on behalf of the Crown, applied to him
(ffir F. Thesiger) to conduct the prosecution, to which he
bad of course welded ; end when his learned friend had
been appointed Solioitor-General, be had in the most hand-

name ojeaner declined to interfere in the conduct of the eat

Lord Campbell—That explanation most be quite satisfac-
tory to all quarters.
Sir F. Tliesiger said that having stated so far, he would
now proceed to slow cause against the rules, which were
fifteen in number, bat which probably might be con-
solidated for the purposes of this argument, though in
some of the cases they varied, and then It would be
necessary to distinguish between them. Four rules had beta
obtained on behalf of the defendenti Stapylton, Kennedy,
Cameron, and MiLeol, which required the prosecution to
show came why they should not furnish to the defendants
particular and specific statements In writing of the offences
charged under each count of the information, with a further
description of the overt acts charged ; and further, why in the
meantime alt proceedings should not be stayed. He thought
there were about as army rules wby such specific informa-
tion should not be furnished on the 2nd, 4th, 6th, 6th,
10th, end 11th count■ of the information, while one of
the rules was confined to what were celled the even counts,
only, the 2nd, 4th, 6th, tub, and 10th. Ile might
at owe my that if the Attorney-Gemmel meld fora moment
suppose that any difficulty or embarrassment could arise to
the defendants, be would have granted them the fullest Infor-
mation, that justice might be dune; but be felt that the de-
fendants were sadly asking for that which they did not maim
for the purposes of their defence, and therefore he could not
concede the application. It was very difficult to define the
extent of particulars to which defendants bad n right in
asses of this description. It wee only very recently that
particulars were granted in cuss al eatepireay at all. In the
caw of The Kiog v. om, 2 Barnwell and etildence, it wss
heldthatageneralcountformaspiracyttegood,foremagiracy

win the gilt of the theca and it naturally followed that
the defendant wee entitled to some description of the par.
ticular species of conspiracy to defraud; so the court said
that where the charge was of such a general nature, they
would compel the prow:atm. to confine himself to particular,.
In the present moo, the twelfth count was the general charge,
and in that Mr. Janice Crompton had very properly or.
dared particulars to be given. But then the question now
erase on the other counts of the information, to what extent
the defendants had a right to demand partied'', on an sp.
palestina of this kind. He apprehended the test would In
whether the information conveyed in the 'pride mann
charging acts of conspiracy, the nature of each charge n
distinctly, and pointed it out so clearly, that it would be io.
possible for the prosecution to proceed on a differeet
conspiracy. That was all that the defendants were in law
and justice entitled to. They had no right to kw,
what was te be the evidence to be relied on in support-of the
charge, end it was that, it appeared to him, which the de.
Indents were now seeking. We matter would depend on
the view which the court took of the omen in the in.
formation, for not one of the defendants had ventured to
make an affidavit that he wee not aware of the charge
which he was called upon to meet. Hie learned friable win
remained the defendants relied on The King v. Hamilton
7 Carrington and Payne, the marginal note of which was
that if the counts in an indictment for conspiracy be frame,
in a general form the judge will order when.
lora, but the judge will not compel the prosecution
to state the specific acts of conspiracy on which the defendant
le charged, nor the epecidc time and placate at which than
iota are alleged to have been done.
Mr. Justice Coleridge—Whet do you precisely mean by the
phrase, if the defendants understand the general nature of the
conspiracy ?
Sir F. Theeiger said that the second count wenitf be the
but answer to his lordship's question. That count charged
the defendants with having, for the purpose of defrauding
the ehareholders, conspired falsely and fraudulently to pub.
Bah alai represent that the attire of the bank, - for the
year ending December, VMS, were in a sound and
prosperous condition, well knowing that the bank
was than insolvent. Now, that gave the defendant.
the fallen Information of the nature of the conspiracy. But
the defoodenta said, "Give tie particulars of the acts."
With great deference, there was no normally for giving then
the particulars of the acts, for the acts were the proofs of
the conspiracy—the acts were the means by which the con.
'piracy was carried out; and, therefore, he thought Mr.
Justice Coleridge would understand a distinction between ,
charge of conspiracy so vague that any species of conspiracy
might be pso.c4 under that charge—and a charge of con.
spiracy so ►pecifc that the nature of the conspiracy could
be folly ascertained. In The King v. lieurgton, all
the counts were of the lame description as the second count,
in the present information, which wee a general charge ef
conepleney.

Lord Campbell—The *wend count in this information b
the IMMO as the first, omitting:the overt acts. You contend
that the overt acts we the evidence?
Sir F.Theslger—Yee ; the evert acts ere the evidence. It
had bees mid by Mr. Justice Buller, en The King v. Eccles
(Leech'. CroneCeses, p. 274), that nothesg need be stated
shout the meene, for the means were the ON:dence to prove
the: dirge. Therethre The King v. Hamilton, rated on
by his horned Mends, did not reach thp point
In quelks. He did not think he wed seg any.
thing farther on that case, move to cite as
observation of Mr. Justice lAttledals, " I Wilk the
ordering of particulars In caw like this le benedcial, and
particulan should give the same information as *special
counta." Now, In the present information, the first count
would have been good without the overt sets being stated,
for as Mr. Justice Buller had said, the overt acts were the
means to establish the crime.
Lord Campbell—The count would have been clearly good
without the overt acts being stated, but what we haw to
determine Is, that, suppose the first count was the only
count, without the overt acts being stated, alienist we °edit
particulars to be a:ven.
Sir F. Thesiger said it was necessery that • party
should be prepared to defend himself, by I:sowing the ma-
dam nature and character of the conspiracy charged. He
could notdo that if the count was framed as in The Quetta v.
Mikr almost every description of conspiracy could Mesta'
gives in evidence on a count of that kind ; therefore, it wee
right that the defendants should be given, sot the particular
acts, bat the particular nature of the charge to be proved,
en the other counts the native end character of the
conspiracy were distinctly described, though they might
be proved by a variety of acts, and no define
dente were not entitled to particulars of those
sets which amounted to the means of carrying; out
the conspiracy. The question for their lordships was, did
they see in this case a charge of conspiracy of inch a
limited,plain, and defined description, that the evidence for the
prosecution must be confined to thole limits—to the particular
nature of the charge that the defendants intended to deceive
the shareholders by fate representations with respect to the
fieuriabieg stele of the bankotherem it was insolvent? Could
any one doubt that these parties well knew that that woo
the only charge which it would be attempted to
estabilab ? Would any one of them venture to declare cis
his oath that, with the present informations before him, be
was entbAreessed and uneaten as to the nature sad cha-
racter of the charge which be was called upon to meet? U
they required more information then wee conveyed by the
clouts. They 'eked not (or specific Information of the
charge, but for specific information of the means to Wotan.
lists that charge.
Mr. Justice Coleridge—You are aware of the case of The
King and Cnrwood ?
Sir F.Theisiger replied it was an indictment for a nuisance,
not of a permanent character but a nuisance in carrying on
certain works in a particular manner, so • general !edict-
meat for a nuisance was not sufficient to prepare the parties
for their defence. He otbmitted it was • different cue
rem the preemie
Mr. Justice Coleridge—The counts first and wend ate
the some, with the exception of the overt sets not being dated
fa the second. But you intend to prove them overt acts.
Lord Campbell—lf persons commit overt acts they go on
and complete the conspiracy. The offence is then Aggra-
vated, end repentance will not purge them. The overt acts
show mire than that these was a conspiracy.
Sir F. Thesiger—The doing of overt acts might altar the
nature of the punishment, bat he submitted it would not alter
the *store of the charge.
Lord Campbell—l think Mr. James stated be world be
seethed if the Attorney-General, or his representative, would
prove under the specific counts that only which was charged
trader the general count.
Sir F. Tbeeiger—l can enure my learned friends I hue
not the .141 test notion what are the overt acts to be relied
on, for we may have Important evidence up to the very del
of trial.
Mr. Justice Wightman—You may amend.
Sir F. Thesiger —lt might be too late to amend.
Mr. Julie* Coleridge—No doubt the defendants are in
very different position going to trial on the general ounts
than on the ',wrist counts. If the special conta wee
struck out would they not be in a worn position than if the
general counts were struck out ? In all the counts bet the
first certain means are stated, and the presumption is, that is
what the prosecution means to prow.
Sir F. Thesiger—What I contend, my lords, is, that cis
the defendant. once know the precise nature of the charge
they are called upon to meet, they are not entitled to haw
more than that.

Lord Campbell—These are overt acts under the conspirer?,
but not to prove it.
Sir F. Theater—But they do prove it.
Lord Campbell—What the defendants have done I evi•
dense of what they meant to do.
Sir F. Threiger--Cemoert end combination cannot general
be established except by overt acts ; so in this ems the
conspiracy is the thing to be proved, and we can only
do that by means of the overt acts. If they require proofs
of the overt acts, de they not require eridence of the conspi-
racy t It must ultimately depend on the judgment of the
court whether you see distinctly that the defendants have not
such information as will prepare them to meet the =ergo. It
would be very different if they stated on their oaths that they
were not prepared to meet the charge.
Mr. Justice Wightraan—tinder your first count you may
give any act in evidence. Then what do you mean by you
second count, which is the same without the overt arts P
Mr. Justice Coleridge—it appears to me that the defer
dints are in a worse position when there are special .4
general counts than if there were general counts, for they
may say there may be something different in the sem&
count which we do not know.
Lord Campbell—ln point of law you gain no advantage
by the second count, for there is no evidence which you ma
adduce on that mutat which you might not adduce en the
first.
Sir F. Theeiger —Then the question is doss the oourt
think that =certainty In produced.

I

L Campbell—Too will not abandon them, so the pre-
runp,rh o. they are put therefor some purpose.
. . . .

Par F. Theekier—No doubt, my lord.
ler. Judos Colerike-1 mks tt that a proemediou hem uo
debt to mobernee a delemdsat.
dr P. Thedger-111 thought there could booths slighted
l♦reaeeattsoe or embernieseut to the delsedsate by these

WWI 1 wadi abeadee thus eltopthie ; bet I tint
the melamine oast be that they meet mete the slightest
imbeereement, sad thetehee i het boned to reeled the
" • '

givatlog of portieshooorkk ototomoni—tholl If I Wined
say Woman* moil Itsvo rim to the ohltrioato, I would
Iwo stow tam mil portioulus.
Mt.llsejont Balloatimo tke me to address the court ea
the mono olio, lAN%

Lent Ces;bell Nil Ai the are WI Mee tally and ably
legato!. There _ be bellenaL twisty-bar oesasal a-
/id. lad an ME weld sot claim the privilege of ad-
Imam tbe amt.
W. 811101111111Bellestthe mil the as ath • teed Inperleat
ale, and the claim et the were amid swath the prom&
lap la all Mil cane r tsars.

-Mt. lurks Cabridge—la aims at Nosy, yoresubre
rim by sadist Me rimer • stilt to • aopy effbe
_ _ _

kr. ilseirai Bahrties rolled dot the aspositheas
rider sowireel the whole si th. Miser ow which the
prosseslas vast
Ltd Campbell-1 r b prectiosOf lohnistios is rooked
isisA is soramitated to Ur primer. not was dors is
'Alai,. arils, A. Lis LassisipOussesi.
_ _

Xs. derjsmalallesdiss Wit tbsi ft parties! ars yen
pesiul they wall lass as sibet
I al Caspbail-1/ I woo tits psoldisir judos. and so &-
Jodie vas tlitidAs widows imams It was set la tie par-
Isiess.l Jodi mint It.

Mr, larda4ip did ma in tha aue at Ms Qum
sad Alarm

lb. Ise Wedlge—That to not the way, boohoo Eel-
loadde • *bleb, ea Mall et the crown, this application
ahead be 'Reword.

kr. Ihrjoug Ballantias auk br would subunit with all n-
ips* that ths rutting 01 particulars did Dot answer say
Boa pepDw

- Lek dipbsit--Thos yes me radii vs sad out psi
aimsr insijs Wig hese wig is min Primo
hes. I Obi yes sight employ per tie bier.
Mr. Ikeitsi Melliese thsehbe di lie Wei Y tart
psi* MI bit Wiles, tai procesed to tidesit Ivt ea
leditsiss Y tae most is is wine
91 GO Gasp Ins folly dortiord, sad the dio
Wr bed so rend ler mai/
Ms mid tbe Mai re mist M 'dud" si whit se
Ydrtrlls aka &she whatever te &pito the
me of is lei
mid to the imps mei Mr Om.
Mae deksiole could to deoleshis Mthe pile May eew
rid.s b wooer. tar rrw we d& Owe estrpeedrise
siudi real w unsposes, bet It tbey sin id, is he
Ass& thdr WM* would set Oda k deieMe Y emir
pisisa

Nr. J. Ilemse meld be vas Jr Weida ie Now ems
egiollbe reb. lad willdesfy della Se end Ileembulue.
Led Cemplell—ire NA be my filai le bur yen, lir.
Waif. I pm Jose enytibeg
Ne.Wtibf mid be did ma Y jedbled Ia debasing their
sibur the wry eriment et Ide bummed friend,
Or 1. Tlembpir.
ab Nemo Yesproemial be *lime Che coot.
2?.cla 11.14.1.4

Comoidl ailed it he could Mato why the mad
11•11111111110 WNW la Ma idisimat

16. Dm f re—l Mg lir Irretly that they were pot la
kasilsb It loft pude* tor& se.

Lai Criplalll-14•• yea say ebjeoliaa to strike dim
at I (A hsiL)

w. lhowsit--kr. Judas Inghtiamo bums batter them
1 41, that that boa lowa the pieties far mare dm 1011 yam.
gitilahoftlats.)

,
Lel Camp&ll —Yoe refer beck So the ruts et Qom
Asir (Laughter.)
Me. levees—At had fee dm het 40 years bie haiiip
lamellae It bat lea the peellee le learn gird weals
eeilYf *eat acts. (tairebeer.) .
Mr. awake Wighturia.4 • eertaiely meet say
SW la die while NOM 4 lay practice I once
ere M Yakima. etallibiear ening *Wel coast; each of
alibi WY ineaidely Allowed b e medal want, es ia
ile aces. I bee em _stns_ with several speeds
main welt cae emerel emit et the tad. ?bet h the re-
melt of my tarty yews' emenhaae (A Weill.)
Mr, Braerae—Tbeee emeel oasts my be iliroker, bet
wad glee ea vareartektery the wet a ISO, particle al
swiss ale be gives urea Ilea ebbe le net le be elm
ipa Go spells seems.

Lard Csiepball—We ses Area sf *Nos ilia parties.
Les ototltt to be pouted at ttko soma coatis.
14. arr}noit wee, wbe hisifuela brnholf of 14.
Zessoly, said, re Me applied tot, to elms eassis,
amid be wiseeselery far Lin Y isaahle ibeirlardebipa
say rsmarka.

Sir
F. Kelly, vibe sneered for Mr. Ikepyltos, whit, bell
RNA for pardealses oe an the onata, Ibis nee to sop
pert the rib.

84 F. Theeiger—Without pretending to the losd caw
learpeeeneose experience of ow of your tordehips—(e lag!)
dolly tank that, wider ell lb* eirenneenreen the aired
end bed way will be to strike oat ell the rowel o
Lord Campbell—That is .hat I seueded eons dosage.
I WA it is the most expedient awls, meths* jesde• atq
bs ediefieriodly edseilidtered.

Ile F. Monger —I are parlkehirly swam libet are
should be so delay in this ere. It may be thst
ere agreed to furbish particahui ewer &gee
ten would Is made to the wore al Uses, sad
we should ha usable to go to trial et an early period, sad
we wfU as store if we intend to produce widows el soy
Plow evert arts than those stated It the weld WOOS we
will then give the &Sodom. dee notice of whet helerdeft.
Lord Cemptell—That hoe resepliesee with what wee
Innerly suggreed by Mr. James, when heir& Its neties.
I sow hope that .11 the parties will Is ratieded.
It woe thee agreed that all the general mote should be
Wreck out.

Mr. Browne again roes.
Lord Campbell uhf—Your Wider, Biz F. Tbseiger, rep/e-
-mote the Attcrasy-Ossaal sad conducts the gamenatiok
sad I hope you will be guided by Idea. When I wee Atter-
sey-Cieseral I control/ad an the perceedlage In crown ;co-
llocations, sad I hope that will be done sew.
Mr F. Tlimiger-17sme le envy dispcettion on the part
of the gentlemen entrusted with the conduct
of this prveecatent he do everything which is
kir and jaw, and it le due to Mr. Browne to say that at
consultation it was seggeeted that the very course now
speed to should he adopted.
Lord Carephelt—Let the euggration made and agreed to be
earned Sato effect.
Mr. Browne-_I hope your lordehip will bear me.
Lord Campbell—I throb you ought sot to be bawd gigabit
the gentleman who u trod uct log the promotion.
Mr. Serjratit Shee said he thought It tight bo elate that
his demo had obtained an order of Mr. Justice Crompton for
particulate ender the bat count, and Waco boa be had
Ulna oat a summons for further particulate.
114 F. 'Monger mid he would also give pertionlere of the
omen ens on which bemoans to rely epos bet amt. Could
the defendants esk for more
Lord Campbell—The object being that the panne &ceased
should have fun notice of the charge which they are celled
upon to answer, *only that is now accomplivlbed, The
reams' of this discussion, I thick, is very much to be
tleireeeted.
Oh F. Kelly said all that maid he fairly demanded or
&And by the ithedeate wee that they shaahl he enabled
to come duly prepared for their trial.
Lord Campbell—Do you ask fee asytisteg mere ?
Mr F. Kelly act Mr. Btspylbut raked to have mene per-
linalen of the overt acta Okamoto., and he hoped their
•lordebign would net think hie anakstioa oareameable. The
bet matt charged enegemey, and the evert eel was
the pabhestioe at • Mee Imbece-lbeet he the year. This
beireer +beet was see firth, awl asalebei rue very
haperteat Item, a• which the peababies weld
erialy rat. The end wee by " bane ea cos-
verrlble securities for aortas rapook ammo as
aloft accosts, Mb disreassel. tar. 810,2041. 04. IV'
Other keen cm the medlt:dile amaysted to upwards of •
main, and the mbar= of the amp wee this—that
the directors, with the view et bar* the share-
heidere and the peddle he bailees lint the bah wee sol-
vent and proesterese, imbibed be the dreebeldent
We boatsman's. It woe ellieed that this eleerrei as be
the ma et 11111,01.1. by toms at ceavertibie surbrithe, be.,
was a Mee preternee, and that the Leas, adverne, mad
eharbise, nay dY sot Wet. What, this, the debtbbt,
lb. eterybeet, ereeted, woo that the rieller iw
peehalke sheahl labia Whammies as le the tom
which wholly or I • wit rode up the 000,0001, sad which
hue het abeam at camera:a esceritles or lame,