The Sun.
London, England, 1837-12-25 00:00:00

COURT OF QUEEN'S BENCH,

(Continued from our Firat Edition of Friday.)
The ATTORNEY-GENERAL here proposed to put in an affi-
davit of Mr. Duthie, to which Sir W. FOLLETT objected, and
after a protracted discussion,
The COURT thought it was a ♦ery doubtful point ; but upon
the whole it would be better not to receive the document re-

ferred to.
The examination of Mr. Carland by the Attorney-General

was then continued.
Mr. Duncombe perused the affidavit ; I think I read it
over to him before it was sworn. I think it was sworn before

Lord Henley. The reason why the affidavit was not
filed before the motion for the injunction was made,
/gas, that I did not take an office copy of it, not
thinking that the motion would come on that day, till
near one o'clock. 1 gave no directions that Mr. Duncombe's
name should not be mentioned in the course of the proceed-

inns on that motion.
James Lewis Knight Bruce, Esq., (Queen's Counsel of
the Chancery Bar) was then called, and examined by the At-
torney-General. I held the plaintiff's brief, and made the mo-
tion for an injunction. On that day I wished to attend her
Majesty's Levee, but was prevented by being compelled to
leave town for Cambridge, where I was last election an unsuc-
cessful candidate.—( Laughter.) The motion was for an ex parte
injunction on the usual terms. I did not mention Mr. Dun-

combe's name. I received no instructions on the point. The
omission is frequently made under particular circumstances.
But I thought, that as at the time the election for Finsbury was
going on, and knowing the misrepresentations which sometimes
are circulated, it would be better for Mr. Duncombe not to
mention his name. I stated the principal facts is the affidavit, and
handed up my brief, with the affidavit, to the Vice-Chancellor
for his Honour's perusal. His Honour granted the injunction,
on the defendant paying 3501. into Court. Every substantial
part of the bill is verified by the affidavit, and there was a fair
ground for the motion.
Cross-examined by Sir W. FOLLETT.-The injunction was
to stay execution. In this case it would not be sufficient
merely to allege fraud in the affidavit to obtain such an in-
junction. It is doubtful whether in such a case the injunc-
tion would Not issue, if the plaintiff stated no facts
which had come to his knowledge since he had
given in cognovit for judgment. In such a case I should
be disposed to direct that the other party should have
notice given them of the application. It is one of the first
duties of Counsel applying for an ex parte injunction, to lay
the facts contained in the affidavit fairly and faithfully before
the Court. If there had been a material difference between
the bill and the affidavit, I should have felt bound to mention
it. But it is not the practice to read the bill so carefully as
the affidavit.
The cross-examination of Mr. Knight lasted for nearly

three quarters of an hour.
Mr. CHANDLESS, of the Chancery Bar, who was with Mr.
Knight for the plaintiff, on the application for an injunction—
The injunction was dissolved solely on the technical objection
that the affidavit had not been filed when the injunction was
granted.
This closed the plaintiff's case.
Sir WlLLiast FOLLETT called the attention of the

Conit to the circumstance that the Attorney-General had
not attempted to disprove the justification set up by
the defendant, and ho would have no right to call any evi-
dence for that object at a further stage of the proceedings.
The ATTORNEY-GENERAL repeated that he had closed his
case. It was for his Learned Friend to prove, if he could,
the justification of the defendant.
Lord DENMAN expressed an opinion that evidence could not
be brought in reply to falsify the justification.
Sir W. FOLLETT then addressed the Jury for the defendant.
The characters of both Mr. Daniels and Mr. Duncombe
depended upon the issue of this trial. Was it not surprising
that Mr. Duncombe had brought forward no evidence to prove
that the transaction :regarding Keely was bone fide? It ap-
peared that the plaintiff's attorney had been in connection
with both Mr. Keely and Mr. Bentley, who could state the
truth of this transaction, yet had not the Attorney General dared
to call either of them into the box, though it was quite evident
that neither of them came hostile, but, on the contrary, friendly
to Mr. Duncombe. On the part of Mr. Daniels, however, he
( Sir W. Follett) would not shrink from proving the charges
which that gentleman had made publicly against Mr. Dun-
combe, and which he still believed to be true. This was no
political question ; it was a question, whether Mr. Daniels had
been guilty of malicious slander, or Mr. Duncombe had
been guilty of what had been imputed to him? When a gentle-
man offered himself to a constituency, as a candidate for
the honour of representing them in Parliament, they had as
much right to inquire into his personal character, as his roli•
tical opinions. With regard to the transaction connected with
Mr. Keely, Mr. Duncombe's object evidently had been to
stave off, if possible, the legal proceedings of Surr
till he was elected for Finsbury—of which im doubt could
have been, nor, on his part, was, entertained. And for
that object an application for an injunction in Chan.
eery occurred to him as the best course to pursue.
The application was accordingly made, and the injunction
granted, which would be an effectual security against arrest
on the legal process. No notice had been given of the appli-
cation to the other parties interested. It was quite accidentally
discovered by the solicitor of Mr. Surr, and immediately an
application was made to dissolve the injunction. It was laid down
by the highest Chancery authorities, that no Injunction could
be obtained to stay proceedings upon executions, unless
fraud was imputed to the plaintiff. Such fraud was imputed
to Mr. Surr in this case, in the bill of Mr. Duncombe ; but
on the Vice-Chancellor's inquiring for the affidavit, it was
found not to be contained in it. That affidavit had not been
filed until the motion for injunction had been granted, and the
Vice- Chancellor dissolved the injunction—in the Times
report it was added, " with great indignation." The
letters referred to had been written by Mr. Daniels under
a firm conviction of the truth of the charges which they con-
tained—with no personal feeling of hostility against Mr. Dun-
combe. He ( Sir W. Follett) considered this to be a suffi-
cient answer to the case of the plaintiff. But, as the Counsel
of Mr. Daniels, he would not permit the question to rest here ;
and, painful as it was to him, he was afraid that it would be his
duty to prove, as he believed he could, that Mr.
Duncombe was guilty of the charges which had been
charged against him. There was no allegation on the part of
Mr. Duncombe that he had paid the 9001. bill—what had be-
come of it ? Did Mr. Duncombe really mean to. say that he
had been swindled out of it by Mr. Bentley ? Why, at this
moment Mr. Bentley was in his confidential employment !
The real fact was, that in 0ct..1834, Mr. Surr becoming bank-
rupt, assigned to hie trustees the bill for 9001., drawn on Lord
Thynne, due Nov. 20, 1834, by Mr. Duncombe. The bill was
dishonoured by Lord Thynne, and the trustees were left to their
remedy against the drawer, Mr. Duncombe, who being applied
to, promised, in December, 1834, to pay the 9001. in three in-
stalments of 2501. each. At the same time he stated that he
was informed Surr had not given full consideration for the
bill. That offer was accepted. Mr. Duncombe was elected
Member for Finsbury before either of the instalments became
due, and as a Member of Parliament was of course secured
against arrest for debt. In March 1835, he was written to by
the solicitor of Surr's trustees on the subject, but no answer was
received. Had Mr. Duncombe been swindled out of the bill by
Bentley, and Surr had not given full value for it, that would
have been a valid and legal defence to any action upon the
bill. He does not plead that to the action, but acknow-
ledged the legality of the demand by offering a cognovit
for the amount. Nay, he actually gave one upon which
judgment had been entered up. Mr. Murray wrote to Mr.
Duthie, who was then the solicitor to Mr. Duncombe, to say
that an attorney of the Temple had waited on him on the part
of Mr. Duncombe's father, offering 3001. for the debt, and
stating that Mr. Duncombe's debts were 170,0001., and that
he had only an income of 8001. a-year, which was an
allowance from his father, and paid quarterly. Mr. Duthie
was aware of the fact, but both he and Mr. Duncombe had,
till within a few weeks, thought that Mr. Duncombe was
heir to an estate of 9,0001. a year ; but it turned
out that though his father was in possession of an
estate worth 80,0001., it was mortgaged to more than
its value. The Learned Gentleman read several let-
ters which passed between Mr. Duncombe and Mr. Mur-
ray, showing that, for upwards of a year, the former
throughout acknowledged his liability for the bill, in
conjunction with Lord Edward Thynne. Things went
on until the King's death ; then matters assumed a very
different complexion, and then Bentley, who was now branded
as the deceiver in the case—the stealer of the bill—comes to
Mr. Murray, and offers on the part of Mr. Duneombe a pay-
ment of 3001. and security for the remainder, which was
declined. Even down to the 18th July repeated offers
were made. The dissolution took place on the 17th,
and then, Mr. Murray having refused to take a compromise,
come the proceedings in Chancery. Before the 18th July,
when the dissolution took place, Mr. Duncombe had never at-
tempted to dispute his liability, but then having only 3501., which
Mr. Murray refused to accept, a week was of great consequence
to Mr. Duncombe, and then he changes his attorney ; he
takes the papers from Mr. Duthie, and puts them into the hands
of Mr. Carland, and then the bill in Chancery was filed. The
case was clear that the l was filed or the mee purpos
of delay, in order that Mr.bil Duncombef r might be re-elected,es
and then he could again set Mr. Murray at defiance.
Looking at all the circumstances connected with the transac-
tion in the Court of Chancery, they were pregnant with sus-
picion, and showed clearly that Mr. Duncombe intended to
defraud Mr. Surr's trustees of their just and legal remedy.
The next part of the charge was that Mr. Duncombe bor-
rowed the money from a personal friend. The Attorney-General
had stated that Mr. D. had borrowed 1801. from a Mr. Keely
in March, upon a check drawn on Childs for the Ist April.
SATURDAY.

At half-past nine this morning Lord Denman took his seat on the
bench, when the examination of the witnesses for the defence was
proceeded with.
Five witnesses, including one of the Reporters of the Times,
were produced on the part of Mr. Daniels, but nothing material
was elicited from them, with the exception of the statement of
Mr. Duncombe's account in Child's Bank, by one of their Clerks,
upon which much stress, was laid by counsel for the defendant.
The ATTORNEY-GENERAL replied at great length, and taunted
Mr. Daniels with having shrunk:from endeavouring to substantiate
the charges on the libels and pleas ; to support which he contended
not one tittle of evidence had been produced. Mr. Daniel knew
well when he was bringing this action, that he had no chance of a
verdict. His only object was, to use a homely phrase, to throw a
great deal of dirt, that some of it might stick.
Lord DENMAN summed up the evidence, and the Jury re-
tired at five minutes to three, and at four o'clock returned a
verdict for the plaintiff.—Damages, 1001.
THE QUEEN V. BERESFORD.
Mr. Serjeant Andrews and Mr. Chambers conducted the
prosecution, and Sir W. Follett, Mr. Adolphus, and Mr. C.
Phillips, appeared for the defendant.
The indictment charged the defendant, Lord James Beres-
ford, with having indecently exposed his person on the morn-
ing of the Bth of July last, in the Haymarket.

It appeared that about 20 minutes after 5 o'clock on the
morning in question, the defendant, with four other gentle-
men and two females, came out of Coventry-court into the
Haymarket, and that the defendant separated from his party
and went on the kerb-stone where he performed an office of
nature. The witnesses, being two policemen, a hackney-
coachman, and a cabman, stated that he did this in an in-
decent manner. The policeman went up to him before he
had completed his object, and took him into custody. His
Lordship walked quietly with them to the station-house ; he
was afterwards taken before Mr. CONANT, at Marlborough-
street, who, upon this slight evidence, bound the partieg over
to prosecute. The witnesses gave a varied account of the
transaction. There were two ladies at a distance in Jermyn-
street going out in a carriage, but there were no other per-
sons out at that early hour except some hackney and cab
gentry.
Sir W. FOLLETT, in a speech of great power, said that, in
his experience he had never seen a case with so little founda-
tion, and of so serious a nature, brought into Court. Lord
Beresford was a gentleman of rank and station, and an officer
in the army, and it was impossible to suppose he had acted in
the manner described with the intent this indictment would
suggest. In a case of this kind the intent was the gravamen
of the charge; and what was shown was merely that these
parties had been up all night, and that the defendant had
gone into the street fo the mere purpose of relieving nature.
If they found a verdict of guilty in this case, there was not a
man in Court who would nut be subject to a similar prosecu-
tion—it was a case that ought to be scouted out of Court.
He would, however, call some of the officers of the defend-
ant's regiment, who would state what kind of young man he
was, and he was sure they would immediately acquit him.
Captain James—l am Captain in the 90th Regiment of
Light Infantry. Defendant is in the same Regiment. He is
twenty-one. He bears the highest character for decency and
propriety—a perfect gentleman.
Major Slade : lam in the 90th Regiment; defendant has
been under my comreannd for four years; I consider him an
honour to the service and to his rank, his conduct unexcep-
tionable—quite purity ; never heard him on any occasion drop
a word that a maiden might blush at.
Mr. George Dawson, also in the 90th Regiment: I concur
in the character given of him.
Lord DENMAN here commenced summing up the case. He
stated that in all probability the policeman imagined that the
case would be dealt with in a summary manner. It was un-
fortunate that this young gentleman should have been brought
there on such a charge. It was necessary on this indictment
that the defendant should have had some evil intention.
The Jury said there was no necessity for his Lordship to go
L further.
Lord DENMAN : You think the case is not proved.
The Jury : Oh, no.—Verdict—Not Guilty.