Court of King's Bench, Guildhall.
Thursday, 9 June 1814.
The Court met, pursuant to Adjournment.
EVIDENCE FOR THE DEFENDANTS.
Mr. Brougham:—We will first read the letters which were proved yesterday?
Lord Ellenborough:—These are read to contradict Le Marchant?
Mr. Brougham:—Yes, they are, my Lord; he proved the handwriting himself.
[The following Letters were read:]
"Glo'ster Hotel, Piccadilly,
6th April 1814.
"My Lord,
"Although I have not the honour of your acquaintance, I beg leave to address you, to solicit an interview with your lordship, for the purpose of explaining a conversation I had with Mr. De Berenger, a few days prior to the hoax of the 21st February last, and which must be interesting to you. If your lordship will condescend to appoint an hour, I will not fail attending punctually at your house, or elsewhere.
I have the honour to be,
my Lord,
your Lordship's most obedient
humble servant,
Js Le Marchant."
Rt. Hon. Lord Cochrane,
&c. &c. &c.
"Glo'ster Hotel, Piccadilly, London,
7th April 1814.
"My Lord,
"I had the honor yesterday to address your lordship, for the sole purpose of giving you that information you are not aware of; and knowing my letter was delivered (your lordship being at home when it was presented at the door), I beg to say, that I am now justified, from your silent contempt and defiance thereof, to make my information public; and which I should not have done before consulting you on that head, my sole wish being to state facts, and not to be considered acting underhand. As I feel exonerated from the last charge, and being in a certain degree called on to give my evidence relative to 21st February last; and as the rank I hold in society will give weight to my testimony, with the witnesses I shall bring forward on the occasion, I feel justified in the steps I am about to take, nor can your Lordship blame me in so doing, understanding the business in question will be brought before Parliament on a future day. I am sorry to have intruded myself on your Lordship's notice, by addressing you yesterday; but, to be correct, I thought it my duty to inform you by this, what have been and are my intentions.
I have the honour to be,
my Lord,
your Lordship's most obedient
humble servant,
J. Le Marchant."
Rt. Hon. Lord Cochrane, M.P.
&c. &c. &c.
No. 13. Green-street, Grosvenor-square.
"13, Green-street, April 8th, 1814.
"Sir,
"I should have hoped, circumstanced as I am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of "silent contempt," to account for the delay of a few hours in answering a note; the more particularly as your note of the 6th led me to conclude, that the information offered to me was meant as a mark of civility and attention, and was not on a subject in which you felt any personal interest.
I am, Sir,
your obedient servant,
Cochrane."
Colonel Le Marchant,
Glocester Hotel.
"Glo'ster Hotel, Piccadilly,
"8th April 1814.
"My Lord,
"I ask your Lordship's pardon for my letter of yesterday, and which was written under the supposition of being treated with silent contempt. To convince you of the high respect I have for your Lordship, I have the honor to enclose to you a statement of what I know relative to the 21st February; and I also now declare solemnly, that no power or consideration shall ever induce me to come forwards as an evidence against you, and that all I know on the subject shall be buried for ever in oblivion. Thus much I hope will convince you I am more your friend than an enemy; as my testimony, corroborated by the two officers, would be of great import, not (believe me) that I myself doubt in any wise your Lordship's affidavit, but De Berenger's conversation with me would to your enemies be positive proof; as for my part, I now consider all that man told me to be diabolically false. If my conduct meets your approbation, can I ask for a reciprocal favour, as a temporary loan, on security being given.—I am just appointed to a situation of about £.1,200 a year, but for the moment am in the greatest distress, with a large family; you can without risk, and have the means to relieve us, and I believe, the will of doing good. Necessity has driven me to ask your Lordship this favour. Whether granted or not, be assured of my keeping my oath now pledged, of secrecy; and that I am with the greatest respect,
My Lord,
your Lordship's most obedient
humble servant,
Js Le Marchant."
Right Hon. Lord Cochrane,
&c. &c. &c.
Js Le Marchant's Statement and Conversation with R. de Berenger.
"I became intimately acquainted with De Berenger about eighteen months ago, and have continued so till a few days prior to the hoax of 21st February last. He was in the habit of calling on me at the Glo'ster Coffee House, Piccadilly; and did so frequently, between the 10th and 16th of last February. He generally called late in the evening, saying he had dined with Lord Cochrane: Once he called about noon, stating he had breakfasted with his Lordship, had been with him on particular business, and was to return to dinner: he mentioned being very intimate with Lord Cochrane and the Hon. C. Johnstone; that they were kind friends to him, with whom he frequently dined. In his apartments, in the rules of the King's Bench, he shewed me the devices he was drawing for Lord Cochrane's lamp invention. The last time he called upon me, it was very late; he appeared elated somewhat by drinking, having (as he said) dined with his Lordship; and in consequence of there being company, he could not then shew Lord Cochrane a copy of a memorial he had written to the Duke of York, praying to be given field officer's rank, and to be appointed to be sent out under Lord Cochrane, for the purpose of instructing the marines in rifle exercise; that his Lordship was very anxious to have him on board of his ship; that he objected going, unless with field-officer's rank, hoping to procure a majority; and that Lord Cochrane had said he would try and get him a lieutenant-colonelcy. De Berenger shewed me his memorial to the Duke, the head of which not being in propriâ formâ, I corrected; it was very long, and related to the losses his family had sustained as American loyalists; also on the cause of his first coming over to England. On my asking him, if the Duke of York was to appoint him, how he could extricate himself out of his difficulties and leave the Bench, he answered, 'All was settled on that score; that in consequence of the services he had rendered Lord Cochrane and Mr. C. Johnstone, in devising, whereby they had and could realize large sums by means of the funds or stocks, Lord Cochrane was his friend, and had told him a day or two ago, that for those services his Lordship had, unknown to him (De Berenger) kept a private purse for him, placing therein a certain per-centage on the profits Lord Cochrane had gained through his stock suggestions; and that now this purse had accumulated to an amount adequate almost to liberate him from the Bench.' When he said this, he appeared overjoyed, and said it in such a manner as to make me credit him. He remained with me this said evening, drinking hollands and water, till near two o'clock in the morning. On his leaving me, I thought of the conversation, especially that part which related to the funds, and conceived, from the numerous stock-jobbing reports, whereby the funds raised or were depressed, that he must have been deeply concerned in it. A few days after the 21st of February, it was whispered that Lord Cochrane was concerned in the hoax. Immediately, De Berenger's former conversation with me forcibly occurred to my mind, and I then mentioned to two friends, with whom I was in company, (and this prior to Lord Cochrane's affidavit, or De Berenger's name being mentioned), that I would lay my existence De Berenger was the sham Colonel De Bourg, and I stated my reasons for supposing so. Recollecting myself afterwards, I made them, as officers, pledge their oath and word of honour, that what I had said on the subject they would never repeat, or even hint at; and I am most fully persuaded they have not. The same day, but prior to the conversation above mentioned, the hoax being the topick in the coffee-room, I said, I thought I knew more than any one relative thereto, except the parties concerned, but I never mentioned any name whatever; yet some days after, I received two anonymous twopenny-post letters, recommending my giving up my information, either to Ministers or the Members of the Stock Exchange Committee; that I might depend on their secrecy, and an ample reward, in proportion to my report: of course these letters were left unnoticed. As soon as I suspected De Berenger to be Colonel De Bourg, I called twice on him, but could not get admittance; I also gave one of the officers above alluded to, a letter of introduction to De Berenger, for him to gain information on the rifle manœuvres: he called; was not admitted; left the letter; and, as well as myself, has heard nothing since of De Berenger.
"To the whole of this I can solemnly make oath; and I am sure I can bring the two officers in question to swear to what I said to them, and the time when, although I have never since spoken to them on that subject.
Js Le Marchant."
The Right Honourable Lord Viscount Melville sworn.
Examined by Mr. Scarlett.
Q. Your lordship is acquainted, I believe, with Admiral Sir Alexander Cochrane?
A. I am.
Q. I believe that Sir Alexander Cochrane has been lately appointed upon a distant service?
A. He has.
Q. Does your lordship recollect any application made to you by Sir Alexander Cochrane, on behalf of Mr. De Berenger?
A. I recollect Sir Alexander Cochrane, several times, more than once I am certain, applying to me, that Mr. De Berenger might be allowed to accompany him in his command, to remain with him on the North American station, to which he was appointed.
Q. Does your lordship recollect about what time those applications were made?
A. I do not recollect as to the precise time, but it was a short time before Sir Alexander Cochrane sailed upon his command.
Q. Does your lordship recollect about what time Sir Alexander Cochrane sailed?
A. I think I should say about five or six months ago; but I am not at all positive.
Q. Does your lordship recollect the particular service that Sir Alexander Cochrane recommended the gentleman for?
A. Sir Alexander Cochrane was desirous that this gentleman should accompany him, for the purpose of instructing, either a corps to be raised in that part of the world, or the royal marines, in the rifle exercise; and afterwards, when Sir Alexander Cochrane wished that an officer of engineers should accompany him, and when I stated my knowledge, from other circumstances connected with His Majesty's service, that it would be difficult to give him that assistance, from the small number of engineer officers that could be procured, Sir Alexander Cochrane mentioned, that as an engineer officer, he would be quite satisfied with Mr. De Berenger.
Q. Does your lordship recollect, whether any particular rank was necessary or usual to accompany such an appointment, or whether it was solicited by Sir Alexander Cochrane?
A. I think there was, but I am not positive; I recollect perfectly explaining to Sir Alexander Cochrane, that as far as related to His Majesty's naval service, I could not agree to the appointment; and I recommended to Sir Alexander Cochrane to apply to the Secretary of State, or the Commander in Chief, stating, that if they agreed to it, I should have no objection to Baron De Berenger's accompanying Sir Alexander Cochrane.
Q. Was Lord Cochrane appointed to a vessel to join Sir Alexander Cochrane afterwards?
A. He was.
Q. The Tonnant?
A. Yes; I think he was appointed before Sir Alexander Cochrane sailed; but of that I am not positive.
Q. Before Sir Alexander sailed to join him upon that station?
A. Yes; I am not quite positive about that, but it was very nearly about that time.
Mr. Park. I had my Lord Melville as a witness in my brief, not knowing that my friend would call him; I should have called his lordship to these facts, if my friend had not.
Lord Ellenborough. Your lordship has no personal knowledge of Mr. De Berenger?
A. No.
Colonel Torrens sworn.
Examined by Mr. Brougham.
Q. You are secretary to the Commander in Chief?
A. I am.
Q. Do you remember any application being made in the department with which you are connected, in behalf of Captain De Berenger?
A. I do.
Q. About what time was that?
A. It was in the latter end of December, or the beginning of January.
Q. Do you recollect by whom the application was made?
A. Sir Alexander Cochrane.
Q. What was the purport of it?
A. Sir Alexander came to me twice, I think, if not three times, to urge the appointment of Mr. De Berenger to go to America, for the purpose of applying his talents as a light infantry officer, to the service on which Sir Alexander Cochrane was about to embark.
Q. Were any difficulties started to this application?
A. Great difficulties.
Q. What objection was made to it?
A. I represented——
Lord Ellenborough. I do not know to what point this applies?
Mr. Brougham. Merely that it confirms the statement made by Lord Cochrane, and shows a connexion between the different parties, consistent with that statement.
Lord Ellenborough. It shows that he was acquainted with Sir Alexander Cochrane, and that he recommended him to the appointment; we are not trying the propriety or impropriety of the orders of Government?
Mr. Brougham.. No, my lord; but Lord Cochrane's statement refers to the difficulty itself.
Lord Ellenborough. But what the difficulties were is not at all material; it would be going into that with which we have nothing to do?
Mr. Gurney. I do not object to it.
Mr. Brougham. I will not enter into it, my lord. In consequence of those difficulties which were felt, the appointment did not take place?
A. It did not.
Q. But the appointment, in consequence of this application, came under the consideration of the Commander in Chief's office?
A. Certainly.
Q. Were those difficulties, without asking what they were, particularly personal to Captain De Berenger?
Lord Ellenborough. No; that we cannot ask.
Mr. Park. It goes to character?
Lord Ellenborough. Then put the question to character at once; you must not go indirectly into it, if Colonel Torrens knows his character at all.
Mr. Park. You do not know, personally, his character?
A. I do not, personally.
Q. Are you acquainted with the hand-writing of Mr. De Berenger?
A. Not in the least.
Q. You have never seen him write?
A. I never did.
Q. Have you received letters, purporting to be from him upon subjects of business, and have you answered and acted upon those letters?
A. I do not recollect, since I have been military secretary ever to have received any.
Q. He had been, I believe, in the rifle corps of the Saint James's.
A. I believe he had.
Lord Ellenborough. Do you know him, personally?
A. I know nothing of him, personally.
Henry Goulburn, Esq. M. P. sworn.
Examined by Mr. Serjeant Best.
Q. You are under secretary of state for the colonial department?
A. I am.
Q. Can you tell us, whether any and what application was made to your department for Mr. De Berenger going abroad with Lord Cochrane?
Lord Ellenborough. The terms of the application I think we cannot hear; I do not think Government secrets (when I say secrets, I mean the detail of them) ought to be stated; we cannot go further than the fact, that an application was made.
Mr. Serjeant Best. That is all we want, my lord; was any application made to the colonial department?
A. Yes; there was.
Q. By whom?
A. By Sir Alexander Cochrane.
Lord Ellenborough. All this must have been in writing, I should think?
A. Yes, it was.
Lord Ellenborough. You have laid this basis, that there had been some application, and that it had been in contemplation, that he should go out as connected with the service.
Mr. Park. That is all we wish, we want to show a connexion with the Cochranes, without this illicit connexion.
Lord Ellenborough. No doubt there had been an intimacy and connexion; whether for good or ill is the question?
Mr. Serjeant Best. And this confirms in terms the statement contained in the affidavit of Lord Cochrane.
William Robert Wale King sworn.
Examined by Mr. Scarlett.
Q. What are you by business?
A. A tin-plate worker.
Q. Were you employed, in the course of last summer and this last winter, by Lord Cochrane, respecting the making him any lamps?
A. Yes, I was.
Q. What was the business on which you were employed?
A. In the manufacture of signal lanthorns and lamps.
Q. For the use of the navy?
A. Yes.
Q. Was it a new sort of lamp?
A. Yes; for which Lord Cochrane has since obtained a patent.
Lord Ellenborough. A patent cannot be proved in that way.
Mr. Scarlett. My friend, Mr. Gurney, has intimated to me that he will not object to it. Was his Lordship in the habit of coming to your manufactory, while you were so employed?
A. Nearly every day.
Q. Do you recollect his lordship being there on the 21st of February last?
A. Yes.
Q. Where is your manufactory?
A. No. 1, Cock-lane, Snow-hill.
Q. Do you recollect about what time in the morning he came?
A. Between ten and eleven it was that he was with me.
Q. Was there any particular time when he was accustomed to come?
A. That was about the time he usually came.
Q. Do you remember the circumstance of any note being brought to him by the servant, whilst he was there?
A. Yes, I do perfectly well.
Q. Were you present when the note was delivered to him?
A. I was.
Q. What did his lordship do on receiving that note?
A. He immediately opened it, and retired into the passage of the manufactory; he came into the workshop again, and shortly after went away.
Q. What time of the day was this?
A. Between ten and eleven.
Q. What time had his lordship been at your manufactory before the servant came?
A. It might be a quarter of an hour, but I cannot speak precisely to that.
Mr. Park. How far is Cock-lane from Grosvenor-square?
A. I should suppose a mile and a half.
Q. I should think it was two miles, did you ever walk it?
A. No; I do not know that I have.
Lord Ellenborough. That is not of much consequence, I should think.
Mr. Gurney. Any distance my friends please.
Mr. Park. It is of consequence when it comes to eleven o'clock, the stock was all sold by that time.
Lord Ellenborough. Did you see him read the note which he received?
A. I saw him read the note in the passage of the manufactory.
Lord Ellenborough. He made no observation upon reading it?
A. No; not that I heard.
A Juryman. Did it occupy any time?
A. No.
Lord Ellenborough. His Lordship did not make any observation upon reading it?
A. No; I think only that he said, Very well, Thomas.
Mr. Bowering sworn.
Examined by Mr. Brougham.
Q. What are you?
A. A clerk in the Adjutant General's office.
Q. Do you know whether Lord Cochrane's brother, Major Cochrane, was with the army in the south of France, at the beginning of this year?
A. He is so returned in the returns from the 15th hussars.
Q. About that time, do you also know, whether or not he was upon the sick list?
A. He is returned "sick present" on the 25th of January.
Lord Ellenborough. That return did not reach you on the 25th of January?
A. No.
Lord Ellenborough. When did it reach you?
A. I do not know; it was received in the regular course, but I cannot state the day.
Mr. Brougham. Over what space of time did that return extend?
A. From the 24th of December to the 24th of January.
Thomas Dewman sworn.
Examined by Mr. Scarlett.
Q. Are you a servant of my Lord Cochrane's?
A. Yes.
Q. Have you been an old servant in the family?
A. I have been so for about seventeen years.
Q. Do you remember carrying his lordship a note any morning in February, to Mr. King's lamp manufactory?
A. Yes, I do, perfectly well.
Q. Do you remember a gentleman coming to Lord Cochrane's house in a hackney coach?
A. Yes.
Q. Did you know the gentleman?
A. I had never seen him in my life before that time, nor yet since.
Q. Did the gentleman send you with a note to my lord?
A. Yes, he did; he first asked me where he was gone to, and I told him, he was gone to Cumberland-street to breakfast, because his lordship told me so.
Q. That was to his uncle's?
A. It was.
Q. Did you go to Cumberland-street after him?
A. I did.
Q. Not finding him at Cumberland-street, where did you go to seek him?
A. I came back to our house in Green-street, with the note; I informed the gentleman who had written the note, that he was not there; and the gentleman said, Pray do you know where he is gone to, or where his lordship could be found? I told him, I thought I could find him, but I thought I might be too late; for when his lordship went out, he said to me, Thomas, after you have got your breakfast, follow me, with that globe glass, to Mr. King's; I had been there.
Q. You had been to Mr. King's before?
A. Yes; on Saturday I went with some things, and this globe glass I should have taken on Saturday, but I forgot it.
Q. His lordship having told you to follow him with this globe glass to Mr. King's, you supposed he might be there?
A. Yes.
Q. Was that the reason for taking the note to him there?
A. Yes; I told the gentleman that I most likely should find him at Mr. King's, as I was going to follow him there with this glass; whether this gentleman had come or not, I should have gone there with this glass.
Q. You took the note with you?
A. He took the note from me, and said, I will add two or three more lines to it.
Q. Did you take the note to his lordship at Mr. King's?
A. I did.
Q. Did you see him there?
A. I did; I enquired of Mr. King's men—
Q. I did not ask you whether you enquired of Mr. King's men, but, whether you saw him there?
A. I did.
Q. Did his lordship read the note in your presence?
A. He did.
Q. Did you leave him there, at Mr. King's?
A. I left him at Mr. King's.
Q. Had his lordship another man-servant at that time?
A. Not in Green-street; no one but me.
Q. Where was his other servant?
A. His other servant was at his lordship's country seat, near Southampton, and had been there two or three months before that.
Q. Had he discharged any servant?
A. Mr. Davis he had given warning to, a month after his lordship was appointed to the Tonnant?
Q. When did Davis quit him?
A. Davis left him about two days, or three days it might be, before he went into Green-street; his time was up then, but he was in Green-street.
Lord Ellenborough. For what purpose is this?
Mr. Scarlett. Only to shew that we cannot find this person.
A. Davis was not in his lordship's service at that time, but he happened to be in the kitchen when the gentleman came.
Q. What is become of Davis?
A. He is gone with Admiral Fleming, to the West Indies.
Mr. Park. Do you recollect what time of the day this gentleman came to your master's?
A. As near ten as possible; I think a little past ten.
Q. It was so late as that, when he arrived there?
A. Yes.
Q. You were hired to go into the country, in the room of my lord's steward, who was going to sea with him?
A. Yes.
Lord Ellenborough. I thought you had been in the family seventeen years?
Mr. Park. You had been with Lord Dundonald?
A. Yes; I was engaged with Lord Cochrane ever since last February.
Q. You were in Lord Cochrane's peculiar service only from February?
A. No.
Q. You said something about having been seventeen years in the service?
A. In the family.
Q. Chiefly with Lord Dundonald, the father?
A. Yes, and with two of his sons.
Q. You did not return home from King's immediately?
A. I did not arrive in Green-street till near two, having a father living in Castle-street.
Q. You do not know whether Lord Cochrane saw this person at his house when he came back, or how long they were together?
A. No, I do not.
Mr. Serjeant Pell. You have lived with Lord Cochrane several years?
A. No, in the family; only since Christmas with his lordship.
Q. Do you know the person of Mr. Holloway?
A. No, I do not, not even when I see him.
Q. Do you know a person of the name of Lyte?
A. No.
Lord Ellenborough. What did Lord Cochrane say or do when you gave him this note?
A. He said, "Then I must return."
Q. That was all that he said?
A. Yes; I saw him come out of Mr. King's.
Q. You know the different members of the family?
A. Yes.
Q. Do you know the major?
A. Yes, I attended on the major when he first went into the army.
Q. I mean Major Cochrane?
A. The brother of Lord Cochrane,—the younger brother.
Q. The brother who is in Spain or France?
A. Yes, he was there lately.
Q. All that Lord Cochrane said was, "Well, Thomas, I will return?"
A. Yes, that was all that he said.
[Mr. Poole, of the Patent Office, was called, but did not answer.]
Mr. Gurney. I will admit the patent to be of any date you please.
Mr. Brougham. It is a patent for the invention of a lamp; the date is 20th of February.
Mr. Gurney. I will take my learned friend's word for that.
Mr. Brougham. That is the case on the part of my Lord Cochrane.
Mr. Scarlett. The next witness is to the case of Mr. Cochrane Johnstone.
Mr. Park. I shall use him also.
Mr. Gabriel Tahourdin sworn.
Examined by Mr. Scarlett.
Q. How long have you known Mr. De Berenger?
A. About five or six years.
Q. Were you the person that introduced him to Mr. Cochrane Johnstone?
A. I was.
Q. How long ago?
A. In May 1813.
Q. You were well acquainted with Mr. Cochrane Johnstone.
A. I had not been well acquainted with him at that time.
Q. Do you know, whether Mr. Cochrane Johnstone, at that time, was in possession of a garden or some premises at Paddington?
A. Yes, in Alsop's Buildings.
Q. Which he was desirous of improving?
A. He was.
Q. What was the occasion of your introducing Mr. De Berenger to him?
A. It was mere chance.
Q. Did you, or anybody else, to your own knowledge, recommend Mr. De Berenger as a person who could assist him in planning that place?
A. I had previously introduced him: I will just state the circumstance that led to my introduction.
Q. I do not know that the circumstance is in the least material. You say the introduction was at first accidental; was there, in consequence of that accident, any connection with them, as to Mr. De Berenger assisting him in this plan?
A. Yes.
Q. The place was intended to be called Vittoria?
A. Yes.
Q. Did Mr. De Berenger employ himself in preparing a plan, as an artist?
A. He did, which plan is here (producing it).
Lord Ellenborough. The exhibition of the plan cannot be important, I should think.
Mr. Scarlett. It may become material, because Mr. Cochrane Johnstone had paid him for the plan.
Lord Ellenborough. Whether there were colonades, and so on, or not, I should think cannot be material.
Mr. Park. The production of the plan is necessary only, to shew that it is worth the money which was paid.
Lord Ellenborough. I only wish to avoid useless particularity; I do not wish to curtail you of the least particle of proper proof.
Mr. Scarlett. Do you know, whether, in the month of September in the last year, Mr. De Berenger had made considerable progress in that plan?
A. He had; he had nearly completed it.
Q. He had not quite completed it?
A. No.
Q. Do you know whether, shortly before Mr. Cochrane Johnstone went to Scotland in September, he made him any payment on account of that?
A. He did, through my medium.
Q. Besides the plan, had De Berenger prepared a prospectus, with a full and minute description of the objects of the design?
A. He had.
Q. Had he got that printed?
A. He had; he made him one payment of £.100.
Q. Do you know that Mr. Johnstone had got a number of his prospectus, to take with him to Scotland?
A. He had.
Q. In the month of September, last year?
A. Yes, early in October; the first or second of October, I think.
Q. Do you know of any payment made by Mr. Johnstone since that time, upon account of that plan?
A. Yes; it was not made by me.
Q. Were you present when it was made?
A. No.
Q. I understood you to say, you knew that the payment was made?
A. By letters.
Q. Were the letters sent to you?
A. Yes.
Q. They passed through your hands?
A. Yes, they did.
Lord Ellenborough. The moment it gets into a letter, that moment the parol statement ends.
Mr. Scarlett. Certainly, my Lord. Do you know whether any application was made by Mr. De Berenger after the plan was completed, for payment?
Mr. Gurney. Were you present?
Mr. Scarlett. Or did you convey any draft?
A. Yes, I conveyed a letter, and I spoke several times.
Q. To Mr. Johnstone.
A. Yes, upon the subject of the paying him for the plans.
Q. Without at present alluding to any letter, do you know what was the price that De Berenger asked for the remainder of the plans?
A. No price, I believe, was ever stipulated; no price was ever fixed till February last. Mr. Johnstone and myself had repeated conversations on the subject of the price of the plans, and as to the remaining sum that he should pay him.
Q. You made repeated applications to Mr. Johnstone to pay him?
A. I did, always in a delicate way, not saying, that Mr. Berenger required so much; but he requested I would take a mode of giving a hint to Mr. Johnstone, as to the payment; a hint he was always ready to take.
Q. Have you any means of knowing what was the money Mr. Johnstone did pay him?
A. Yes, I think I have.
Q. When was the payment?
A. In February.
Lord Ellenborough. At what time in February.
A. Mr. Johnstone sent me a letter on the 22d of February, enclosing a letter to him from Mr. De Berenger.
Mr. Scarlett. He sent to you, on the 22d of February, a letter he had received from Mr. De Berenger?
A. He did.
Q. Did you keep the letter?
A. I did, here it is (producing it).
Lord Ellenborough. De Berenger's letter was enclosed in one of Mr. Cochrane Johnstone's?
A. Yes.
Q. Were the letters by the post? had they any post-mark upon them?
A. No; this letter was delivered.
Q. The delivery and date were cotemporary with the transaction, namely, about the 22d of February?
A. Yes, it was on the 22d of February I received it.
[The letters were read, and are as follow.]
"18, Great Cumberland-street,
"22d February 1814.
"My dear Sir,
"I have received the enclosed letter from the Baron; and as I mean to pay him this week for his plans, pray let me know if you have advanced him any money on my account, in addition to the £.50, which I paid him on account last year. You will perceive that he wishes a loan of £.200, in addition to this sum, and that he offers me as security, Colonel Kennedy's assignment. I have told him, that if this sum can be of real service to him, I will advance it to him, I will take his note for the amount; and if he is ever able to repay me, good and well; if not, I shall have had the satisfaction of serving him.
"As I shall receive the middle of next month a considerable sum of money, you will oblige me very much, if you will have the goodness to let me know, what it would cost me to purchase an annuity for the mother of my three natural children. I wish to settle £.200 a year upon her, and £.100 a year upon each of them; her age is 23, past; my eldest boy will be five years next May, the second boy four years next October, and the third one year next April; they are all healthy. I have in my will made a provision for them, but I wish to alter this mode of settlement for them, from motives of delicacy to my daughter, Miss Cochrane Johnstone, as I would not wish to insert their names along with hers.
"I will send you as soon as possible the statement about Lady Mary Lindsey Crawford, to enable you to give the answer to the bill in chancery.
"Pray settle my account with Dawson and Wrattislaw, as I wish to clear off all demands upon me as soon as possible. Whatever sum you say they ought to receive, I will pay them. I hope you are expediting the Wendover papers.
Believe me to be,
my dear Sir,
yours respectfully,
A. Cochrane Johnstone."
Addressed to
Gabriel Tahourdin, Esq.
King's Bench Walk,
Temple.
"London, February 22d 1814.
"My dear Sir,
"I beg to assure you, that I would not have complained to you of the disappointment and inconvenience which Colonel Kennedy's unreasonable delay of completing the purchase of the share in the oil patent created, had it not reached your ears from other quarters. I cannot agree with you, that his "want of cash" is a sufficient excuse; because in that case, he ought to have stated that instead of artificial reasons. Had he completed his contract at the price agreed on, namely, £.1,500, I should be liberated from this place, and be able to equip myself for the American expedition (which I do not relinquish) without encroaching on any friend.
"You have often kindly pressed me to let you know what would satisfy me for the two plans, MS. &c. connected with them. I really have never made a charge of this kind, and am at a loss how to calculate, much less to make a demand; but those who can perceive the labour, time, difficulties and contrivance, which the awkwardness of the ground created, may better be able to say, if £.250 for every thing, is unreasonable. At all events, it is not a charge, but I leave it to you; and in case you deem it extravagant, am ready to submit the whole to the valuation of any competent person. What regards the drawing, planning and superintending, Donovan, and the brass-cutter, in completing the two pieces of furniture, I am determined not to accept any thing for; these you must (forgive a strong word) do me the favour of accepting.
"Should Colonel K. not come to town, I shall feel greatly obliged by your assisting me with the above sum, in the course of a week. Pray favour me by calling on Mr. G. Tahourdin, in order to see the conditions of the assignment, which lays there, executed by me. He will also show you the Colonel's extraordinary letters, and all my answers; at least I imagine that he has, if not all, most of them.
"Could I in the course of seven or eight days (in addition to the £.250) procure about £.200, either from the Colonel or from you, on account of Colonel K's. £.1,500, for which you might hold the assignment as a security, I should be enabled to proceed immediately to the Tonnant; for I still think Lord Cochrane might obtain leave for my going on board, at all events; I yet have hopes, though his lordship seemed in doubt; perhaps you will obligingly urge his endeavours. I fear a much greater difficulty, for I have heard it hinted, that some creditors, fearful of my going to America (which I have too openly talked of), contemplate to lodge detainers against me. Among these however, Mr. Tahourdin is not; for I thought it my duty to tell him, and he handsomely consented to my endeavours against America, as the only means to recover from my many losses.
"My plan is to go on board, if possible, with a view to begin to drill the marines in rifle-shooting and exercise, and any of the crew in sword, pistol and pike use; if my creditors pursue me there, I could draw for the balance of £.900, to silence some of them (I mean after taking from £.1,500, £.200, to refund to you, in case you now oblige me with an advance, and £.400, to protect my securities for the rules); and if this cannot be completed with the Colonel time enough, and for which reason I flatter myself that you will assist me with your friendly interference, I see but one mode, that of going abroad the moment I find my creditors hostile; for although I may find £.350 to £.400, to pay the rules, I cannot find means in haste to satisfy the rest, although I have offered to assign considerable properties. In the latter case, might I not from abroad proceed to America, there to join the Admiral, as a volunteer, and at my own risk.
"Forgive my anxious and tedious suggestions, which your own feeling heart, and friendly interest in my future successes, have in some degree courted, and grant me your pardon for not attending to your good humoured hint about long letters. Even should you refuse my request, in regard to the £.200, I shall be thankful for your reply; but if it should convey your consent, the sum shall immediately be employed towards the honest but hazardous service of your country, although it hesitates by proper rank, and otherwise to encourage my loyal, and I trust zealous endeavours. Forgive the sound but frank style of this letter, owing to disappointments which would be intolerable, if the recollection of your kindness did not curb and relieve him, who must ever gratefully subscribe himself with unalterable esteem,
dear Sir,
your faithful and obliged,
humble servant,
C. R. De Berenger."
To the
Hon. Cochrane Johnstone,
&c. &c. &c.
P.S. Apropos.—You have paid me £.50. on account;—may I trouble you to tender my most respectful assurances to Miss J.; that I hope most sincerely to hear that her indisposition discontinues. Should you no longer want the books, perhaps the bearer may bring them. Will lowness of spirits be received as an apology for this slovenly letter and crippled sheet?
Lord Ellenborough. This does not appear to have come by the twopenny post?
Mr. Park. No my Lord; but there is an indorsement upon it.
Lord Ellenborough. De Berenger was in the King's Bench; he had not servants to send with it?
Mr. Park. Yes, my Lord; it is sworn to by the Davidsons, that he had a man and a woman servant.
Lord Ellenborough. Probably he sent one of them, as you propose to call them, perhaps they may prove that.
Mr. Scarlett. There is a reference in that letter to an assignment of some property that De Berenger had?
A. Yes.
Q. Was such an assignment prepared at your office?
A. It was; it was an assignment from Mr. De Berenger to Colonel Kennedy.
Q. What was the subject of the assignment?
A. It was an assignment of a share of a patent.
Mr. Gurney. We are getting so very wide of evidence, that I must object, which I am very loth to do.
Mr. Scarlett. There was something referred to, that might be a security to Mr. Johnstone.
Lord Ellenborough. That refers to something which is the real thing; that is all you can prove by this witness.
A. Yes, it does, my Lord.
Mr. Scarlett. Mr. Johnstone having written you that letter which has been read, to ask your opinion about De Berenger, did you state to him what was your opinion, as to his power of extricating himself?
A. I had some conversation with Mr. Johnstone, as I had had several times.
Q. In consequence of the letter which has just been read?
A. Yes; I replied to the letter shortly, and I had conversation with him in consequence.
Lord Ellenborough. Do you know whether Mr. Johnstone made any answer to the letter?
A. To the Baron? I really do not.
Mr. Scarlett. Is that your answer to Mr. Johnstone? (shewing a letter to the witness.)
A. Yes, it is.
Mr. Scarlett. If your Lordship will allow that to be read.
Lord Ellenborough. When did you write that?
A. I wrote that the 23d of February, the day after I received the letter.
Q. It is addressed to Mr. Cochrane Johnstone.
A. It was sent to Mr. Cochrane Johnstone.
Q. How came your answer to be in your hands?
Mr. Scarlett. It was handed over by us just now; it was given me by Mr. Cochrane Johnstone's attorney.
[The letter was read, as follows:]
"My dear Sir,
"In reply to your favour of yesterday, I beg to inform you, that the only sum I have paid the Baron on your account, since you advanced him the £.50, is a trifle of about £.7 or £.8, which he paid for the printing of the prospectus's of Vittoria. You are very kind in assisting him so much; I have done it till my purse is empty; but had it been otherwise, I would still have assisted him to the extent of my means, notwithstanding the little foolish difference between us.
"I will attend to your wishes respecting the annuities, I will settle with Dawson and Wrattislaw as speedily as possible.
"The Wendover business is proceeding; but I am awkwardly circumstanced, not having all the documents before me; in Lady M. L. Crawford's business I should wish to attend with you on the spot. Pray excuse haste
I am, dear sir,
your's faithfully
Gabl Tahourdin."
Temple,
23d Feb. 1814.
Lord Ellenborough. Where is the cover of this letter: the cover should be produced, for letters of this sort may be written after their date, and one wishes to have some external thing that cannot deceive; there is no post-mark to any of these letters.
Mr. Scarlett. Did you write that letter on the day of which it bears date?
A. Yes, I did; it was not sent by the post, I believe; I cannot charge my memory, whether it was or not?
Q. I see there is a lady alluded to, Lady Mary Crawford Lindsey; was she a tenant to Mr. Cochrane Johnstone?
A. No, she was not a tenant; she had purchased a house of his.
Q. There was a business to settle with her?
A. Yes.
Q. Do you know the fact, that in consequence of this correspondence which has been read, Mr. Johnstone did pay Mr. De Berenger any sum of money?
A. Only from the parties having acknowledged, the one the having paid it, and the other the having received it.
Q. You were not present when the money was paid?
A. No, I was not.
Q. Was there any receipt taken for the money?
A. Yes, there was.
Q. Did you take the receipt?
A. No, I did not.
Lord Ellenborough. Did you see it at the time of the receipt?
A. There were two receipts at the time.
Q. Do you know of its existence, by seeing it at the time when it purports to bear date?
A. A little afterwards; a few days afterwards.
Q. When did you first see it?
A. A few days afterwards; I really believe the £.50 receipt I handed myself to Mr. Johnstone, but I cannot charge my memory with it.
Lord Ellenborough. You saw it in the month of February, or when?
A. The £.50 receipt, which was in September or October, I believe I handed over to Mr. Johnstone myself; the other I did not.
Mr. Scarlett. When did you first see the other receipt; was it in February?
A. I think within two or three days after it was given.
Lord Ellenborough. Have you both the receipts there?
Mr. Scarlett. We have, my Lord.
Lord Ellenborough. Then hand them in, if he proves that he saw them about the date?
A. This receipt of the 20th of September 1813, I handed myself over to Mr. Johnstone.
[It was read, as follows.]
"London, Septr 20, 1813.
"Received of the Honble Cochrane Johnstone, the sum of fifty pounds (by the hands of Gabl Tahourdin, Esq.) on account of large plans, &c.
"C. Random De Berenger."
—————
£.50 — —
—————
Mr. Scarlett. You have another receipt in your hands, that bears date the 26th of February?
A. Yes.
Q. That money did not pass through your hands?
A. No.
Q. When did you first see that receipt?
A. In three or four days afterwards, when Mr. Johnstone called upon me; Mr. De Berenger and I were not at that time upon favourable terms; that will account for my not having delivered it over to him.
[It was read, as follows.]
"London, February the 26th, 1814.
"Received of the Honble A. Cochrane Johnstone, the sum of two hundred pounds, being the balance of some drawings, plans and prospecti, delivered.
"C. R. De Berenger."
—————
£.200 — —
—————
Mr. Scarlett. I observe, that in that correspondence there is mention made, besides the payment of £.250 of a loan of £.200?
A. Yes.
Q. Were you present at the passing of any money?
A. No, I was not.
Q. When did you first see that paper? (handing one to the witness.)
A. I saw it at the same time with the last receipt for £.200.
Q. What is it?
A. A note of hand for £.200.
Q. You saw that two or three days after it bears date?
A. Yes, I did.
[It was read as follows.]
£.200 — —
—————
"London, February the 26th, 1814.
"Six Months after date, I promise to pay to the Honble A. Cochrane Johnstone, the sum of two hundred pounds.
"C. R. De Berenger."
Payable at Gabl Tahourdin, Esq.
No 8, King's Bench Walk, Temple.
Mr. Scarlett. With respect to those letters you received from Mr. Johnstone, do they contain your indorsement upon the back of them?
A. I think they do.
Q. Is that your handwriting upon the back of that letter? (shewing it to the witness.)
A. It is.
Q. Was it written by you at the time you received it?
A. Yes.
Lord Ellenborough. What letter is that?
A. The letter of the Baron to Mr. Johnstone, of the 22d of February.
Lord Ellenborough. You wrote it on the same day?
A. I cannot say on the same day, but within a few days; when I doubled up the papers that lay on the table, with other documents.
Mr. Scarlett. Is it your habit, when you lay letters by, to endorse the date.
A. Yes, uniformly; but not on the day of receiving them; I let them lie till they accumulate unpleasantly.
Lord Ellenborough. If a man sends you letters enclosed from other persons, do you indorse the letters sent to you inclosed; that is no part of the correspondence with you?
A. No, it is not.
Q. Then I should apprehend, you would not usually do it?
A. I have done it differently; I have said "De Berenger to Johnstone."
Q. But you give it a date?
A. I have dated it above those words, as usual.
Q. When you receive a letter, you authenticate the period of receiving it, but not the date of a letter received by another.
A. I generally do; I enclose it in the letter to which it refers.
Mr. Scarlett. Was it so done in this instance?
A. It was.
Lord Ellenborough. Have you any letter-book?
A. I do not keep a letter-book; but I keep my letters very regularly tied up.
Mr. Scarlett. You have heard the contents of the letter from De Berenger to Mr. Johnstone read.
A. Yes.
Q. That refers to some documents in your hands, to serve as a security to Mr. Johnstone, in case he should require them?
A. Yes.
Q. Is it your usual practice, when letters of that sort are sent to you, to make the sort of endorsement you have done when you lay the letters by?
A. It is.
Lord Ellenborough. I only asked him as to the inclosure. If I received a letter, I should endorse the date of my receiving it as authenticating the fact; but I should not put the endorsement of the date upon the enclosure, for I know nothing of the date, whether it was received on that day or not; the gentlemen of the jury know whether that is the habit of business or not.
A Juryman. Is the date you have endorsed upon the enclosure, the date of your receiving it or the date of the letter?
A. The date of the letter.
Lord Ellenborough. Certainly it is not regular to authenticate the date of a letter, to which you are not privy; that is all my observation upon it.
Mr. Scarlett. Besides those plans you now produce, do you know whether there were other and subordinate plans drawn for the details of that same scheme?
A. Yes, there were.
Q. You have been a great while the attorney of Mr. De Berenger, and known to him?
A. Five or six years.
Q. Were you known to him before you were known to Mr. Cochrane Johnstone?
A. Yes.
Q. Did you become security for the Rules for this gentleman before you knew Mr. Cochrane Johnstone?
A. Some months.
Q. Then it was not at Mr. Cochrane Johnstone's desire that you became a surety for the Rules for this person?
A. Certainly not.
Q. Was Mr. Cochrane, who, I understand from Mr. Brushoft, was your co-surety, any relation of Mr. Cochrane Johnstone?
A. No.
Lord Ellenborough. That has been proved over and over again; nobody made an observation upon it.
Mr. Park. I beg your Lordship's pardon; there could be no other motive, I conceive, in calling Mr. Brushoft.
Lord Ellenborough. I understood him to be called to prove, that Mr. Tahourdin was a surety for the defendant; I never heard an observation made upon Mr. Cochrane, as being a relation.
Mr. Park. Are you acquainted with the hand-writing of your client, Mr. De Berenger?
A. Perfectly.
Q. That letter, or those letters lying before his Lordship, which have been proved, I think you say they are his hand-writing?
A. There is only one.
Q. Have you ever seen that letter before you saw it yesterday? (handing to the witness the letter sent to Admiral Foley.)
A. Never; I just saw it yesterday, and that was all.
Q. Upon the knowledge you have of the hand-writing of Mr. De Berenger, is that, in your judgment, the hand-writing of Mr. De Berenger or not?
A. Certainly not.
Lord Ellenborough. Be upon your guard.
Mr. Park. Be upon your guard, and look at it attentively. You have many times seen and read his letters?
A. A thousand times, and received a thousand letters from him.
Q. And you do not believe it to be his hand-writing?
A. I do not indeed; it is not his hand-writing.
Lord Ellenborough. That is the Dover letter?
Mr. Park. Yes it is, my Lord. If your Lordship will look at that and the other letter, you will see a marked difference.
[The witness compared the two letters.]
Lord Ellenborough. The gentleman may look at the two letters; but that furnishes no argument, for a person would certainly write a disguised hand at that time, if ever he did in his life. This gentleman does not go on belief that it is not, but he swears positively that it is not his hand-writing.
Mr. Park. Certainly, my Lord; and there is, on the other side, only Mr. Lavie. This gentleman having seen Mr. De Berenger write a thousand times, and received a thousand letters from him. Do you, in your judgment and conscience believe, that that is a disguised hand of Mr. De Berenger?
A. I do not.
A Juryman. Why did you take the two letters up to compare the two hand-writings, if you had no doubt in your mind?
A. I had no doubt at all of it.
Lord Ellenborough. Why did you compare the two then?
A. I wished to be circumspect; but if my life rested upon it, I should say, this is not his hand-writing, according to my belief and judgment.
Mr. Park. What has been, for the number of years you have known this person, his general character?
A. I have always considered him a man of strict honour and integrity.
Q. We have heard he has been in difficulties?
A. He has been.
Q. And he is a debtor of yours?
A. Yes, he is a very large one.
Q. To what amount have you trusted him?
A. To the extent, I believe, of about £.4,000, and upwards, besides my professional claim.
Lord Ellenborough. In money.
A. Yes, in money.
Mr. Gurney. I only want to ask Mr. Wood as to this road book. I believe it has been identified before.
Lord Ellenborough. That was put in yesterday.
Mr. Jones. I had it yesterday in my hands; it was put in by Mr. Wood.
Mr. Gurney. I wish to shew Mr. Tahourdin the hand-writing in that book.
Lord Ellenborough. The hand-writing in that road book certainly was as extremely like the Dover letter as ever I saw any thing in my life. [The road book was handed to Mr. Tahourdin.]
Cross-examined by Mr. Gurney.
A. Have the goodness to look at that pencil-writing in that road book; do you believe it to be Mr. De Berenger's hand-writing.
Lord Ellenborough. Now be upon your guard.
Mr. Gurney. Look at both pages.
[The witness examined it.]
A. Some of it appears to be more like his hand-writing than the other part.
Q. Do not you believe it all to be his hand-writing?
A. No, I do not indeed.
Q. How much of it do you believe to be his hand-writing.
Lord Ellenborough. State the parts where you think the likeness ends, and where you think somebody else has taken up the pencil and written a part of it.
A. That looks more like his hand-writing [pointing it out] but it is not the general writing of Mr. De Berenger.
Mr. Gurney. How much of it do you believe to be his writing?
A. Some part of it looks more like his writing than other part.
Q. Is there any part which you believe is not?
A. The writing part is not at all like his writing.
Q. I ask you as to nothing but the writing part?
A. Some are figures.
Q. Looking at those two pages, you say it is not all his hand-writing?
A. No, I do not think I did.
Q. That was your first answer?
Lord Ellenborough. You said "There is some more like his hand-writing, but I do not believe it all is."
Mr. Gurney. How much is there of it that you do not believe to be his writing.
A. Some of the letters look like his hand-writing.
Q. How much or how little of it do you think to be his hand-writing?
A. The smaller parts look like his hand-writing.
Q. Now I ask you upon your oath, have you any doubt of the whole of those two pages having been written by the same hand?
A. Upon my word it is difficult to say.
Q. Not at all so; I have looked at it attentively, and I know it is not difficult to say; do not you believe it all written by the same hand?
[The witness examined it again.]
Lord Ellenborough. You can say whether you believe it to be De Berenger's hand-writing?
A. Upon my word, I really do not know what to say.
Mr. Gurney. I am quite content with that answer?
Lord Ellenborough. Mr. Park, would you like to look the Dover letter?
Mr. Park. I am no judge of hand-writing, my Lord.
Lord Ellenborough. That may be a concealed hand-writing, and I should think it extremely likely.
Mr. Park. I mean to call other witnesses to this; I have nothing to conceal in this case?
Lord Ellenborough. No; you announced to us that you flatly contradict the whole of the story as to Mr. De Berenger.
Mr. Park. Yes, I do my Lord; I observe this is all pencilling which has been shewn to you?
A. Yes, it is.
Mr. Park. Is this pencil writing in the same kind of character that a man writes when he writes with pen and ink; are you enabled to say from your knowledge of the hand-writing, whether it is or is not?
A. That it is which puzzles me more than any thing, its being in pencil.
A Juryman. We should like to see that road book.
Mr. Park. Does your Lordship think the jury have a right to see that; they cannot take it for the purpose of comparing with any thing else?
Lord Ellenborough. It is in evidence, being found in the desk of the defendant, they may look at each, if they please.
General Campbell, sworn.
Examined by Mr. Brougham.
Q. Do you know Mr. Cochrane Johnstone?
A. I do.
Q. Did you meet him in the month of September or October last, at a meeting or hunt in Scotland?
A. I met him the second week, I think in last October, at the Perth meeting.
Q. Did he at that time shew you some plans and prospectus of the new place of amusement, in the nature of a Ranelagh?
A. I saw in Mr. Cochrane Johnstone's hands, the prospectus of a new public place, he called it, to be erected in the Regent's Park, or the neighbourhood of the Regent's Park.
Q. Do you recollect the name he gave to it?
A. I think he called it Vittoria.
Q. Will you look at the prospectus, and see whether that is the same? [The prospectus was shewn to the witness.]
A. I believe this is a copy of the same that I saw.
Q. Look at the plan?
A. He did not shew me the plan.
Q. Did he shew this prospectus, and communicate to other persons at that meeting upon the subject of it, as well as you?
A. I cannot speak to that; he communicated to me in my own apartment or his own, I cannot recollect which.
[Mr. Hopper was called, but did not answer.]
Mr. Serjeant Best. This gentleman was taken very ill, being kept here last night; if he comes by and by, I trust your Lordship will permit him to be examined out of his turn.
Lord Ellenborough. Certainly, at any period.
Mr. Serjeant Best. That is the case of the three defendants for whom I appear.
The Right Honourable the Earl of Yarmouth sworn.
Examined by Mr. Park.
Q. You are I believe, or were, the Colonel of the Duke of Cumberland's sharp-shooters?
A. Lieutenant-colonel commandant.
Q. It is called the corps of sharp-shooters?
A. Yes.
Q. Captain De Berenger was adjutant of that regiment, was he not?
A. He was a non-commissioned officer, acting adjutant.
Q. How long have you known Mr. De Berenger?
A. Ever since a few days after I was elected to command that corps; that was in the beginning of the year 1811; I cannot fix the day, very early in that year I know it was.
Q. Has your Lordship had opportunities of seeing Mr. De Berenger write, or of receiving letters from him, and of acting upon those letters from him.
A. I have received a great many letters from him, and have seen him write occasionally.
Q. And you have seen him, probably, on the subject of the contents of those letters?
A. Very frequently; two or three times I have seen him alter the regimental orders, and have received very many letters from him.
Q. Are you, from that opportunity that you have described, in a capacity to state to his Lordship and the jury, whether you are acquainted with his character of hand-writing?
A. As well as I am with that of any other gentleman with whom I have been in the habit of correspondence.
Q. Then, not knowing what your Lordship's answer may be, I will trouble your Lordship to look at that.—[The letter sent to Admiral Foley was handed to his Lordship.]
A. I will read it through, if you please.—[His lordship read the letter.]
Q. Supposing you had heard none of the circumstances which this trial has brought to every body's ears, and of which your Lordship has heard so much yesterday; from the character of the hand-writing of Mr. De Berenger, should you have believed it to be his hand-writing?
A. Certainly not.
Q. Your lordship, I believe, knows that in the month of July, this gentleman was very urgent and solicitous to go out as a sharp-shooter to America, with Sir Alexander and afterwards with Lord Cochrane?
A. He mentioned to me one day, when he came to me on the business of the corps——
Q. Was that in January?
A. I think so; but I cannot swear to the date; he mentioned to me, that he had very nearly arranged to go out, to drill the crew and the marines on board of the Tonnant. I thought he mentioned it in a way to suggest, that he wished some little additional influence, and I got rid of the thing.
Cross-examined by Mr. Gurney.
Q. The writing of that is larger than Mr. De Berenger usually writes?
A. Certainly, it is longer.
Q. The character of the letters is longer?
A. Oh, certainly; it is a very round small hand he generally writes, and a very pretty hand.
Q. Will your lordship look at that letter, and tell me, whether you received that letter at or about the time that it bears date? (shewing a letter to his lordship.)
A. Yes; either the day it bears date, or the day immediately after it.
Mr. Gurney. I request Mr. Law will mark that letter; the date of it is March the 19th?
A. I believe I marked the cover.
Q. Will your lordship have the goodness to look at the hand-writing in that road book (shewing it to his lordship); that I believe is larger than Mr. De Berenger's usual writing, is it not?
A. I think it is; some part certainly does not look larger; it is less round—it is more angular.
Q. Does your lordship or not, believe that to be Mr. De Berenger's hand-writing?
A. I am not sufficiently conversant with hand-writing, to wish to swear to an opinion either way.
Re-examined by Mr. Park.
Q. That is in pencil?
A. Yes.
Q. With respect to the letter in question, although it is of a larger description than Mr. De Berenger's usual writing, does it appear to your lordship to be at all a feigned hand, as disguising the real hand?
A. Another question to which I am not competent to give an answer; if I was to look through the letter—there is one letter which creates a suspicion, but I should never have suspected it on a cursory view of the letter; it is the letter R before Du Bourg, but that I should have never looked at or suspected; that looks more like his hand-writing than any other part; it looks like the way in which he makes the R of Random.
Q. Does your lordship mean the large capital R, or the little r?
A. The large capital R is the only letter I can see that looks in the least like his hand.
Q. Your judgment upon that letter, upon the whole inspection of it, is, that it is not his hand-writing?
A. I should never suspect it, except from that letter.
Lord Ellenborough. It is a larger character?
A. Yes, it is a fuller character.
Q. It is a stiffer character, and more upright?
A. It is less upright, I think, than his; it is more angular and longer.
Lord Ellenborough. That is his usual writing, is it not? (shewing another letter to the witness.)
A. Oh, yes; certainly, I am perfectly familiar with that.
Lord Ellenborough. You are certainly borne out in your observation upon the letter; look at that letter R again?
A. It struck me on reading the letter.
Q. In what manner an artificial letter may be written, so as to disable a person from saying whether it is the hand-writing of a certain person, you cannot say?
A. I am perfectly incompetent, as I informed your lordship and the jury before, to give any judgment upon that.
Q. What is the uniform of your corps?
A. The uniform is, the waistcoat green, with a crimson cape.
Q. A bottle green, is it not?
A. Some have got it a little darker than others, but it should be a deep bottle-green with a crimson collar; the great coat is a waistcoat with black fur round it, consequently no crimson collar.
Q. The body in your uniform is not red?
A. It is deep bottle green.
A Juryman. A jacket or coat?
A. It is a waistcoat, very like the light-horse uniform.
Lord Ellenborough. It is almost unnecessary to ask you, whether the members of your corps wear any decorations; a star or a cross?
A. When in uniform, some wear medals that they have gained as prizes given by the corps; they occasionally wear them hanging by a ribband.
Q. You wear no such decorations as this? (shewing the star to his lordship.)
A. No, certainly not.
Q. Supposing a gentleman appeared before you in an aid-de-camp's uniform, with that star upon his breast, and that other ornament appendant, should you consider that was a man exhibiting himself in the dress of your sharp-shooting corps?
A. Certainly not.
Q. If a sharp-shooter belonging to your corps presented himself to you in that dress, you would think it a very impertinent thing?
A. Certainly.
Mr. Serjeant Best. As Lord Yarmouth has been called by the defendant, De Berenger, and has given evidence which may affect Lord Cochrane, we conceive, we submit we have a right to make an observation upon it.
A Juryman. If Colonel De Berenger had appeared before your lordship in the uniform of his corps, would it have been any thing extraordinary?
A. Nothing extraordinary; it would have been more military that he should do so, though I never exacted it.
Captain Sir John Poo Beresford, sworn.
Examined by Mr. Richardson.
Q. Are you acquainted with Mr. De Berenger?
A. I have seen him twice in my life before yesterday.
Q. Have you had any occasion to see him write, or to be acquainted with the character of his hand-writing?
A. Never.
Q. Do you know at any time in the early part of this year, or the latter end of the last, of any applications he was making to go to America as a sharp-shooter?
A. I will tell you the part I took in reference to that business. In the beginning of February, I paid my ship off; after that, I met Mr. Cochrane Johnstone in town, who told me Sir Alexander Cochrane was very anxious he should go out in the Tonnant, to teach the marines the rifle-exercise. I went to the Horse Guards to ask whether anything could be done; I was told it would be useless to apply to the Duke of York; and I told Mr. Cochrane Johnstone of it the day after. I was dressing before breakfast, and Mr. De Berenger sent up to say, that he was very much obliged to me for the part I had taken.
Q. At what time was this?
A. I think, the beginning of February; but before Sir Alexander Cochrane sailed, I met him at Mr. Cochrane Johnstone's, with Admiral Hope and some ladies; I think that was in January, or the latter end of December; there were, I think, fourteen of us, some of them ladies. This application was after he had sailed. When I went to Mr. Cochrane Johnstone's, I was to have met Sir Alexander Cochrane, but he went to dine somewhere else, and my Lord Cochrane came in after dinner; he did not dine there, but a great many of the family did.
James Stokes sworn.
Examined by Mr. Park.
Q. I understand you are a clerk of Mr. Tahourdin, the attorney.
A. Yes.
Q. How long have you been so?
A. Between three and four years.
Q. Have you, in the course of those three or four years, had frequent opportunities of seeing the hand-writing of Mr. De Berenger?
A. Daily.
Q. He has been a client of your master, and has been assisted very much by him?
A. Yes.
Q. Have you seen him write, as well as seeing letters purporting to come from him?
A. A great deal.
Q. Be so good as to look at that paper (the Dover letter), and tell his lordship and the jury, whether in your judgment and belief, that is the hand-writing of Mr. De Berenger?
A. Certainly not.
Q. Look at that, and say whether you think it is a feigned hand, but still the hand-writing of De Berenger?
A. It certainly is not.
Q. Of course, a man can only speak to belief and judgment when he does not see a thing written; do you believe, from your knowledge of his hand-writing, that that is his writing, either feigned or real?
A. Not a word of it.
Lord Ellenborough. Look at the letter R in the signature?
A. It is not like it at all.
Mr. Park. I mean the large R.
A. The capital R is nothing like it.
Mr. Park. It is a singular R certainly, it looks as if it had been intended for a P and made into an R.
Lord Ellenborough. It is not at all like that R, is it? [shewing another letter to the witness.]
A. No, I do not think it is any thing like that.
William Smith sworn.
Examined by Mr. Richardson.
Q. You are servant to Mr. De Berenger?
A. Yes.
Q. How long have you been his servant?
A. About three years and a half.
Q. Do you write yourself?
A. Yes.
Q. During the time you have been in his service, have you seen him write, and become acquainted with his hand-writing.
A. A great deal of it.
Q. Is he a gentleman who writes a good deal?
A. Yes.
Q. Are you well acquainted with the character of his hand-writing?
A. Yes.
Q. Have the goodness to look that over, and then I will ask you a question respecting it, and among other things look at the signature at the bottom, R. Du Bourg.—[The letter sent to Admiral Foley was handed to the witness, and he examined it.]
Mr. Park. Having examined that paper, is that, in your judgment and belief, the hand-writing of your master, Mr. De Berenger?
A. I really believe it is not.
Q. The whole, or any part of it.
A. None of it.
Q. Have you any doubt of that?
A. I am positively sure it is not his hand-writing.
Q. According to the best of your judgment and belief?
A. According to the best of my judgment and belief.
Q. You have been his servant three years and a half?
A. Yes.
Q. We understand he has lately lodged with a person of the name of Davidson, in a place called the Asylum Buildings.
A. Yes.
Q. Were you with him till he went away in the month of February?
A. Yes.
Q. That was on Sunday the 27th, was it not?
A. Yes.
Q. Do you remember, whether he was at home on the Sunday preceding that, that would be the 20th?
A. I perfectly remember it.
Q. Did he sleep at home on the Saturday night?
A. He did.
Q. Did he go out at any time on Sunday morning?
A. He did.
Q. Do you remember at what time?
A. About nine o'clock.
Q. Did he come in again after that?
A. Yes.
Q. And go out again?
A. Yes.
Q. About what time was that.
A. It was near eleven when he came home, and he went out immediately afterwards; he was not above a quarter of an hour or twenty minutes before he returned again.
Q. Did he return again after that?
A. Yes.
Q. How soon after?
A. About twenty minutes.
Q. Would that be after persons were gone to church that he returned?
A. Yes.
Q. How long did he stay at home then?
A. Till about four o'clock.
Q. He went out again about four o'clock?
A. Yes.
Q. Were you at home at the time he went out again, about four o'clock?
A. I was over the way.
Q. Did you see him?
A. Yes; I had the dogs out, and was leaning with my back against the rail when he came down.
Q. Your master's dogs?
A. Yes.
Q. He kept dogs, did he?
A. Only one; one was mine; I was with them opposite, on the other side of the road, leaning against the rail facing the door.
Q. What were you doing with the dogs?
A. I generally take them out for occasions.
Q. Did you see him go out about that time?
A. I did.
Q. Did you yourself go out soon after that?
A. Yes I did, and my wife.
Q. About what time did you return home that evening?
A. About eleven o'clock, within a few minutes of eleven.
Q. Was your master at home when you returned or not?
A. He was not at home.
Q. Did he come home afterwards?
A. Yes.
Q. About what time?
A. I had not been at home, I suppose five minutes, before my master came home.
Q. That would be a few minutes before or after eleven?
A. Yes.
Q. Did he sleep at home that night.
A. Yes.
Q. What means have you of knowing that?
A. The means I have were these; after I came home we were down in the kitchen taking our supper, my master was in the drawing-room before we had got to bed, I heard him going up stairs to his bed-room, he passed my room door; that was not above half past eleven.
Q. Did he breakfast at home the next morning, or not.
A. No, he did not.
Q. Did you see him the next morning early?
A. No.
Q. About what time did you see him the next day?
A. About three o'clock; I cannot speak to a minute or two.
Q. Did you hear or see him go out?
A. I did not.
Q. You saw him about three o'clock on the Monday?
A. Yes, I did.
Q. Who made his bed?
A. My wife.
Cross-examined by Mr. Gurney.
Q. Did you let him in?
A. Yes.
Q. You opened the door to him?
A. Yes.
Q. At a little after eleven, that night?
A. Yes, thereabouts, it might be a little before, or a little after.
Q. He gave a good loud knock at the door, in his usual way?
A. He rapped as usual.
Q. And his usual rap was a loud one?
A. Not over loud.
Q. Not very gentle?
A. Between.
Q. Between loud and gentle?
A. Yes.
Q. And he slept at home that night?
A. I cannot say that he slept, he went to his bed-room, and the bed when I went in the morning looked as if he had slept in it.
Q. Did you see him in bed the next morning?
A. No, I did not, I heard him go into the bed room.
Q. You did not see him the next day till three o'clock?
A. No.
Q. Did you write that letter to Lord Yarmouth? (shewing a letter to the witness.)
A. I did.
Q. Of your own head?
A. Yes.
Q. No body furnished you with any draught to write from?
A. No.
Q. Have you your master's military great coat here?
A. Yes.
Q. His military grey great coat?
A. Yes; not in this present place.
Q. It is at Guildhall?
A. Yes.
Q. Now attend to this question, have you not acknowledged that your master slept from home that night?
A. Never.
Q. Have you not acknowledged it to Mr. Murray?
A. Never.
Q. I give you notice he is here?
A. I know he is.
Q. Now I ask you, did you not on Monday the 21st, tell Mr. or Mrs. Davidson, or both, that coming home, and not finding your master at home, you had left the key for him at the usual place in the area, that he might let himself in?
A. I did not tell them so, upon my oath.
Q. Neither of them?
A. No, neither of them.
Q. Did you tell Mr. or Mrs. Davidson that on any other day; did you ever tell them so?
A. No, not to the best of my knowledge.
Q. To the best of your knowledge?
A. I never told them so.
Q. As you did not attend your master on the Monday morning, who attended him and brought him his shaving things, and gave him the usual attendance of a gentleman?
A. He never has any attendance; I never go to his bed room till about half past eight, and sometimes he is up, and sometimes not.
Q. Do you mean to say, he is a gentleman that wants no attendance?
A. Yes; he cleans his teeth, and washes himself and powders his hair, without my being in his bed room.
Q. He does not usually ring his bell in a morning, I suppose, doing without attendance?
A. Not before he comes down to breakfast.
Q. What time does he usually come down to breakfast?
A. At different hours.
Q. What is his usual hour?
A. Sometimes nine, sometimes ten, sometimes eight.
Q. Till he comes down, he does not ring for you?
A. Very seldom.
Q. He is a very quiet, a remarkably quiet man in his lodging?
A. I never knew him to be otherwise.
Q. Not a person walking about, or making a noise of any kind?
A. Not making any disturbance; he walks about very much.
Q. Your master finally left his lodgings on Sunday the 27th.
A. Yes.
Q. Do you remember your paying or changing a fifty-pound note with a Mr. Seeks?
A. I do.
Q. From whom did you receive that fifty-pound note?
A. Mr. De Berenger.
Q. On what day did you receive that?
A. On the 27th, I think it was.
Q. On the Sunday?
A. Yes; I think it was.
Q. The day he went away?
A. Yes; I think it was.
Q. When he went away, he took his things to the Angel Inn, St. Clements.
A. I took them for him.
Q. For him to go into the country?
A. Yes.
Q. Did you receive no more than fifty pounds from him; did you not also receive a twenty pound from him?
A. I did not; not the same day.
Q. What day did you receive that twenty pounds?
A. I cannot positively say.
Q. Was it a day or two before he went away?
A. Yes.
Q. Did you receive also a two pound from him?
A. I do not recollect.
Q. Did you receive and give to any person, of the name of Sophia, thirteen pounds from him?
A. No; I gave none to Sophia.
Q. Did you see him give her any thing?
A. No, I did not; if I was in the room I did not notice it.
Q. Do you know any person of the name of Hebden, or Heberdine?
A. No.
Q. Do you remember, the day before your master finally went away, Mr. Cochrane Johnstone calling with a letter?
A. I do not remember that; I was not at home.
Q. Upon your oath, did not a gentleman call there, who you told Mr. Davidson was Mr. Cochrane Johnstone?
A. Upon my oath I was not at home; she told me a gentleman called there, and giving a description of him, I said, most likely it was Mr. Cochrane Johnstone.
Q. You knew Mr. Cochrane Johnstone?
A. Very little.
Q. But you did know him?
A. I once saw him.
Q. Did you not tell her on the Sunday, that if your master had been at home on the Saturday, when Mr. Cochrane Johnstone brought that letter, he would have gone off on the Saturday night?
A. I did not.
Q. Did you not on the Saturday or the Sunday?
A. I did not.
Q. Was your master at home all that week, from the 20th to the 27th?
A. He was not always at home.
Q. He was at home every day?
A. Yes.
Q. Going out as usual?
A. Yes.
Q. On the 21st, for instance?
A. The 21st he went out to dine.
Q. Where did he go to?
A. I cannot positively say.
Q. Did he tell you where he was going to?
A. I do not recollect.
Q. Upon your oath, did he not tell you he had been to Mr. Cochrane Johnstone's?
A. No.
Q. You swear that?
A. Yes.
Q. Nor that he was going there?
A. No.
Q. When you came home on the Monday, did you see any black coat in the room?
A. I did.
Q. Was that your master's black coat, or a strange black coat?
A. A strange black coat.
Q. That black coat must have fitted your master vastly well?
A. I cannot say, I never saw it on.
Q. You brushed it, did not you?
A. Yes; but not on his back.
Q. You are used to brushing his coats?
A. Of course.
Q. Now, a servant used to brush his master's coat, must know the size pretty well; this would be rather a short coat upon him, would it not?
A. No; I do not think it would.
Q. Upon your oath, would it not have been a great deal too long; was not it the coat of a man six feet high?
A. I did not know who owned the coat.
Q. I did not ask you that; but was not that the coat of a gentleman six feet high?
A. I do not know.
Q. You are not competent to say what sized man that would fit?
A. That coat would fit me very well; it is rather wide.
Q. Not at all too long for you?
A. No, not at all.
Q. You have seen Lord Cochrane, have not you?
A. Never in my life, to my knowledge.
Q. You have sworn some affidavits, have you not?
A. I have.
Q. Did you draw them yourself?
A. I did.
Q. Without any assistance?
A. Without any assistance.
Q. Whom had you seen before you drew them?
A. I cannot say who I saw, thousands.
Q. Upon that business?
A. No body.
Q. Before you made that affidavit, you had not seen any body upon that business?
A. No.
Q. Not Lord Cochrane?
A. Never in my life.
Q. Nor Mr. Cochrane Johnstone?
A. No.
Q. Nor Mr. Tahourdin?
A. I saw Mr. Tahourdin, but he did not know of my making the affidavits; I told Mr. Tahourdin of my master's absence; I went to tell him.
Q. How soon was that after he left his lodgings?
A. I cannot positively say to a day.
Lord Ellenborough. What absence do you mean?
A. From the 27th.
Mr. Gurney. How soon after the 27th did you tell him?
A. About the 7th or 8th.
Q. Of March?
A. Yes.
Q. You swore your affidavit on the 24th of March?
A. Yes; but I drew it out before then.
Q. And that without any concert with any body whatever?
A. Yes.
Q. Merely for the vindication of your master's character?
A. Yes.
Q. And when you had done it, what did you do with the affidavit?
A. I sent it to have it published.
Q. To whom did you send it?
A. I took it to Mr. Cochrane Johnstone. I found my master a very injured gentleman.
Q. And therefore you took it to Mr. Cochrane Johnstone, to be published?
A. I did not take it to be published.
Q. You gave me those very words?
A. He did publish it.
Q. Did you not take it to be published?
A. I did not take it to the printer.
Q. Did you not take it to Mr. Cochrane Johnstone, that it might be published?
A. Yes.
A Juryman. Did your master breakfast at home on Monday the 21st of February?
A. No, he did not.
Re-examined by Mr. Richardson.
Q. When was it that you first saw this black coat?
A. On the 21st of February.
Q. That was the Monday?
A. Yes.
Q. That was after he came home, which you say was about three o'clock?
A. I came home about three o'clock.
Q. He was at home?
A. Yes.
Q. He might have been at home before that?
A. Yes, he might.
Q. Does your master play on any musical instrument?
A. He was used to do.
Lord Ellenborough. I will ask any question upon that subject for you, but there has been no question put on the cross-examination with reference to it?
Mr. Park. There was a question about his being still.
Lord Ellenborough. There was no allusion to musical instruments; you should have gone through it in your original examination, as it was to contradict their case. Does your master play on any musical instrument?
A. Yes; both the bugle-horn and violin.
Q. You say Mrs. Davidson described to you a person who called, and that you said it was most likely Mr. Cochrane Johnstone?
A. Yes.
Q. You had seen Mr. Cochrane Johnstone?
A. Yes; I had seen him but once.
Q. This was on Saturday the 26th?
A. Yes.
Q. Why did you say it was most likely Mr. Cochrane Johnstone?
A. Because she told me it was a tall gentleman, and his long hair very much powdered.
Q. Having seen him but once, and not being much acquainted with him, what led you to say most likely it was Mr. Cochrane Johnstone; had you any expectation that he would come that day?
A. No, not the least.
Q. But having seen him once, you thought it must be that tall man and powdered, whom you had seen but once in your life?
Q. I might have seen him oftener than that, but not to my recollection.
Q. What you said was, that you had seen him once?
A. I had seen him once, I know.
Q. Had you seen him oftener than that?
A. I cannot say; but I once saw him at his own house.
Q. I supposed you had never seen him but once from your answer?
A. I might have seen him oftener, but I do not know that I had.
Q. You are as sure as that you are existing, that your master went up at eleven o'clock, or sometime after eleven, on Sunday evening the 20th of February?
A. So help me God; I am sure he did.
A Juryman. Did you see him go up, or only hear him go up?
A. I heard him go up; I was in my bed room.
Lord Ellenborough. But you let him in?
A. Yes, I did.
A Juryman. You are sure that was on Sunday the 20th?
A. Yes.
Q. Did your master often breakfast out?
A. Sometimes.
Q. Not often.
A. Not very often.
Ann Smith sworn.
Examined by Mr. Park.
Q. Are you the wife of Charles Smith?
A. Of William Smith.
Q. Were you a servant, with your husband, of Mr. De Berenger, in February last?
A. Yes.
Q. Had you been so for any length of time?
A. Two years and a half.
Q. Do you recollect having seen him at home on Sunday the 20th of February?
A. Yes.
Q. In the forenoon?
A. Yes.
Q. Do you know what time he went out that morning?
A. About nine o'clock.
Q. When did he come in again?
A. Between ten and eleven o'clock.
Q. How long did he stay at home at that time?
A. Not a great while.
Q. He then went out again?
A. Yes.
Q. When did you see him again?
A. He did not stay long.
Q. When did you and your husband go out that day?
A. Between four and five, after my master was gone out.
Q. What time did he go out?
A. About four o'clock.
Q. And you and your husband went out between four and five o'clock.
A. Yes.
Q. At what time did you and your husband return home that night?
A. About eleven, as near as I can guess.
Q. Was your master come home before you, or did he not return till afterwards?
A. My husband came in a few minutes before my master, and went down to strike a light, and I stopped to bring him some beer.
Q. Did your husband and you come home together?
A. Yes; only that I called at the public house for some beer; my husband said he would go in, and strike a light.
Q. Did your master come in that evening?
A. Yes.
Q. Did you see him come in?
A. No, he was let in before I returned with the beer.
Q. You heard him up stairs?
A. Yes.
Q. Is it your custom yourself to see him in the evening; does he sup?
A. He takes a little supper, but I was never in the habit of carrying it up stairs.
Q. Your husband does that?
A. Yes.
Q. Did he carry it up that evening?
A. He had nothing but a bit of bread, and a glass of ale.
Q. You did not see him that night?
A. No.
Q. Was it your business, as the female servant of this gentleman, to make his bed?
A. Yes.
Q. At what time did you get up on the Monday morning?
A. About seven.
Q. Are you sure that the time we are speaking of, was the Sunday morning before he finally went off?
A. Yes.
Q. Did you usually get up about seven?
A. Yes.
Q. At what time did your master go out that morning?
A. He went out before breakfast.
Q. At what hour do you take that to be?
A. Before Smith went out; he went out about eight and my master went out a little before him.
Lord Ellenborough. Did you see him go out?
A. No.
Mr. Park. Did you hear him?
A. No, I did not know that he was out, till I let him in.
Lord Ellenborough. You did not know that he had been at all absent from home on Monday, till you let him in?
A. No.
Mr. Park. Had you made the bed on the Sunday, the day you saw him go out so many times in the morning?
A. Yes, I was up stairs making the bed, and he went out; I looked out of the window, and saw him go.
Q. Did you, or not, make his bed on the Monday?
A. I did.
Q. At what time of the day did you make his bed?
A. Not till after my master came home; my master came home, and when I found he had been out, I went up stairs immediately, and I made his bed.
Q. As you did not see your master on the Sunday night or Monday morning, what was the last time upon the Sunday that you did in fact see him; not that you believe him to be there, but that you saw him with your own eyes?
A. I am not certain whether I saw him go out on the Sunday at four o'clock, but I think I did.
Q. You say you made his bed after he came home on the Monday?
A. Yes.
Q. You let him in on the Monday, at twelve o'clock?
A. Yes.
Q. Was the bed the same as it was to all appearance on other days?
A. Yes.
Lord Ellenborough. It appeared like a bed that had been slept in?
A. Yes.
Mr. Park. Had he been constantly sleeping in his own bed for several months?
A. Yes.
Q. Did you sleep in that bed, that night?
A. No.
Q. I did not mean to ask you an improper question; but you did not sleep in that bed; I meant no such insinuation as might be supposed?
A. I did not sleep in it.
Q. Did your husband sleep in that bed, and you in your own?
A. No.
Q. Did you and your husband sleep together that night?
A. Yes.
Q. Are you quite sure that you made the bed on the Sunday, and again on the Monday?
A. I did; I am quite sure of that.
Q. Do you recollect how your master was dressed when he came home on the Monday?
A. I do; he had a black coat on.
Q. Had he any thing in his hand?
A. Yes.
Q. What was it?
A. A bundle.
Q. Did you happen to see, while either it was in his hand, or immediately on his laying it down, the contents of the bundle?
A. I saw a part of a coat where the bundle was open at the tie; a grey coat, just where the knot was tied?
Q. Had your master a grey great coat?
A. Yes, he had.
Q. Had he had one for some time?
A. Yes; about a month, I believe.
Q. Did your master continue after that Monday to sleep regularly at home, till he finally went away on the following Sunday?
A. Yes.
Cross-examined by Mr. Bolland.
Q. Your master had no other servant but you and your husband?
A. No.
Q. In what capacity did he serve him?
A. As man-servant; he used to wait upon him, and do any thing that was requisite to do.
Q. He waited upon him at dinner?
A. Yes; and at breakfast; he always used to carry it up; I never did that, except when he was out.
Q. You did not know till your master came home, that he had been out that morning?
A. No, I did not.
Q. Your husband went out about eight o'clock.
A. Yes.
Q. Was not Mr. De Berenger in the habit of ringing his bell in the morning for breakfast?
A. After he came down he used to ring the drawing-room bell, and then I used to carry it up, if my husband was out.
Q. Who supplied him in the morning with water, for the purpose of shaving?
A. He never used warm water; he had water in his room.
Q. He never rang for your husband to attend him?
A. Sometimes he did; but he knew my husband was going out that morning, and therefore he did not ring.
Q. Did it not appear to you extraordinary that morning, that there was no call for breakfast till that hour?
A. Yes; I supposed my master had breakfasted out, of course, when he came in.
Q. But you did not know of his going out?
A. No.
Q. Was not your surprize excited by his not ringing?
A. Yes; I was rather surprized that he had not rang.
Q. Do you recollect how he was dressed on the Sunday when he went out last; you do not mean to say that you saw him go out at four o'clock?
A. I do not recollect.
Q. The last time when you saw him go out on Sunday, how was he dressed?
A. He had on a black coat and waistcoat, and grey overalls.
Q. Of course, not seeing him on the Monday, you did not know in what dress he went out that morning?
A. No.
Q. But you say he returned home in a black coat?
A. Yes.
Q. Was that black coat his own?
A. That I cannot say.
Q. Was not that coat much too long for your master?
A. I did not observe it.
Lord Ellenborough. He did not come home in the same black coat he had gone out in on the Sunday?
A. That I cannot tell; I was not in the habit of brushing his coat.
Mr. Bolland. Did you ever see Lord Cochrane?
A. No.
Q. Was not the coat that he came home in, on the Monday, so long, that you recollect remarking it could not belong to him?
A. No, I did not remark that.
Q. Did you see the coat lie on the chair afterwards?
A. It might be there, but I did not observe it.
Q. What was in this bundle that he brought home?
A. I saw a part of a grey coat between the tie of the bundle.
Q. Did you make an affidavit upon this business?
A. Yes.
Q. When was that?
A. The 24th of March.
Q. Who suggested to you the necessity of making the affidavit?
A. No body but my husband; it was his wish to make his, and he said, therefore Ann do you make yours.
Lord Ellenborough. What did you see besides the grey coat in the bundle?
A. I saw nothing but that.
Lord Ellenborough. Recollect yourself, because you have sworn you saw a green uniform?
A. There might be a green uniform.
Q. Was there, or was there not?
A. Yes, there was a green uniform.
Q. Was it in the bundle or not?
A. Yes, it was in the bundle.
Mr. Bolland. Was there any thing extraordinary in your master going out in his green drill dress?
A. No; not that I know of.
Q. Was he in the habit of going out in it?
A. Yes.
Q. And of returning in it?
A. Yes.
Q. Did you ever know him go out in his green drill dress and come home in a black coat?
A. No.
Q. That morning he had his green drill dress in his bundle, with his great coat?
A. Yes.
Q. Your husband made an affidavit, and you made an affidavit as well yourself?
A. Yes.
Q. Had you seen any body on the subject of that affidavit?
A. No.
Q. Had you seen Mr. Tahourdin?
A. No.
Q. How soon after or before making that affidavit, did you see Mr. Tahourdin?
A. I saw Mr. Tahourdin a few days after.
Q. Did you know for what purpose your affidavit was made; how it was to be used?
A. No.
Q. Do you know to whom it was taken; what did your husband do with it; do you know of your own knowledge?
A. It was put in the papers, I know.
Q. Was it put in by him or by any body else?
A. I believe it was put in by him.
Lord Ellenborough. Did Mr. De Berenger ever wear whiskers?
A. Yes, sometimes he used.
Q. How long before the 20th of February had you seen him wear whiskers?
A. I do not know; I was so little in the habit of seeing my master, that I do not know whether he had whiskers or not.
Q. You saw him come in at the door, did not you?
A. On the Monday morning.
Q. At times you used to see him?
A. Yes.
Q. Were you so little acquainted with the countenance of the man in whose service you had lived two years and a half, that you did not know whether he was a whiskered man or an unwhiskered man?
A. I never attended the door when my husband was at home.
Q. You used to go backwards and forwards; just before you did not know whether there was a green coat in the bundle; and then when I put you in mind of what you had sworn, you say positively there was?
A. Yes, there was.
Q. And now you mean to say, you saw so little of your master, that you do not know whether he had whiskers?
A. No, I do not know.
A Juryman. You say you did not make your master's bed until his return on Monday?
A. No.
Q. Did you see it before his return on Monday?
A. No; but he was not up stairs, he was in the drawing room.
Q. You did not see the bed till after his return?
A. No, I did not.
John M'Guire, sworn;
Examined by Mr. Richardson.
Q. I believe you are ostler at Smith's livery stables, at the Cross Keys yard, Chelsea?
A. Yes.
Q. Were you acquainted with the person of Mr. De Berenger?
A. Yes.
Q. Was he in the habit of frequenting your master's stables, or that neighbourhood?
A. Yes.
Q. Were you well acquainted with his person in the month of February last?
A. Yes, I was.
Q. Do you remember seeing him upon the 20th of February?
A. Yes.
Q. On a Sunday?
A. Yes.
Q. What makes you remember the day?
A. I remember the day perfectly well, on the account that I knew him to be in the Rules of the King's Bench.
Q. How does that enable you to recollect the particular day?
A. Upon account, that I determined in my own mind, that I would ask his servant the next time I saw him, whether he was out of the Rules.
Q. Before that time had he ever lived at Chelsea?
A. Yes, he had.
Q. And so you became acquainted with his person?
A. Yes.
Q. On this 20th of February, at what time did you see him at Chelsea?
A. At a quarter past six.
Q. Where did you see him?
A. At Mr. Smith's stable-yard gateway.
A Juryman. A quarter past six in the morning or the evening?
A. The evening.
Mr. Park. Did any thing pass between you?
A. Yes; he asked me whether the coach was gone; I told him the six o'clock coach was gone, but the seven would be ready in three quarters of an hour.
Q. What further passed?
A. He made no more to do, but turned round and took his way to London.
Q. Did he say any thing more?
A. He said it would not do to wait for the seven o'clock coach.
Q. And he set out on foot for London?
A. He did.
Q. This was about a quarter past six, you say?
A. Yes.
Q. Are you confident as to the day?
A. I am.
Q. And as to his person, you have no doubt about it?
A. No, not the least.
Q. Did any circumstance occur to call this to your recollection?
A. Yes; I mentioned it to my wife, when I went home that night.
Q. What induced you to mention it to her?
A. That I had seen Mr. De Berenger on that evening, at a quarter past six.
Lord Ellenborough. You mentioned the time to her?
A. Yes.
Q. You mentioned particularly to her, that you had seen him at a quarter past six?
A. I did.
Mr. Richardson. What induced you to mention the circumstance to your wife?
A. Knowing that he was in the Rules of the Bench, and not having seen him that way, from the time that he was in the Rules before.
Q. Did he go from that lodging he had in Chelsea, to the Rules of the King's Bench?
A. Yes, he did.
Cross-examined by Mr. Adolphus.
Q. How long had you known Mr. De Berenger before this?
A. I had known him about three years and a half; I was living at Mr. Smith's yard at that time.
Q. And you had known him all that time?
A. I had.
Q. It was on the Sunday you saw him?
A. Yes.
Q. You knew him to be an officer in the corps of riflemen, did not you?
A. Yes, I did.
Q. Perhaps you thought he was out on Sunday on military duty, or something of that kind?
A. I did not know, but the answer my wife made, when I said that to her was, that she supposed it was the same as it was at Edinburgh, and that on the Sunday a person used to come and visit her aunt.
Q. I cannot see what makes you remember particularly that it was the 20th of February?
A. I had very good occasion for it.
Lord Ellenborough. Did you write it down?
A. No, I cannot write.
Q. Did your wife put it down?
A. No; she cannot write neither.
Mr. Adolphus. How do you know it was on the 20th of February?
A. I can swear that was the day; on that day fortnight I saw his servant, and that was the 6th of March, and I asked him, whether his master was out of the Rules of the Bench? and he said, he was not; and I said, I had seen him there; and he said, if he was there he did not know any thing of it, nor his master was not out of the Rules of the Bench.
Q. He said that he was at home, in the Bench, then?
A. No, that was not his meaning; that he was not got out of the Rules then, that he was not got clear of the Bench.
Q. The servant told you so on the 6th of March?
A. Yes.
Q. That he was not out of the Rules of the Bench?
A. Yes.
Q. That he was not on that day, the 6th of March?
A. Yes; that he did not know it if he was.
Q. He was quite surprised at hearing of it?
A. He did not seem in the least astonished, to me; I did not see him take any notice.
Q. He told you he was in the Rules of the Bench, and he did not see how he could come to Chelsea that day?
A. He told me he was not out of the Rules of the Bench, and if he came to Chelsea, he did not know it.
Q. It was by the conversation with the servant, you fix the date?
A. No, I knew the date.
Q. On what do you found your recollection that it was on that day?
A. I know that was the day.
Q. The 13th of February he was within the Rules of the Bench, and might have been at Chelsea?
A. No, it was not the 13th.
Q. How soon did you tell any body that you saw him on the 20th?
A. I told my wife that night.
Q. Your wife is here?
A. Yes, she is.
Q. How soon did you tell any body besides William Smith, the servant, any thing about him?
A. I told no body but William Smith, and my wife.
Q. Not to this moment?
A. Yes, I did, when I was sent for.
Q. When was that?
A. Last Monday week.
Q. Then you were seen by the attorney, and examined about this matter?
A. Yes.
Q. Was any body so particular as to ask you how this gentleman was dressed, when you saw him on this Sunday?
A. No.
Q. Now I am so particular; will you tell me how he was dressed?
A. He had a black coat, and black waistcoat, and grey pantaloons or overalls, but I will not say which.
Q. You have seen your old acquaintances, the two Smiths, here this morning?
A. I have seen one of them this morning.
Q. Which was that?
A. William, the servant.
Q. Had you any conversation with him about the dress on this Sunday?
A. No.
Q. You know Mr. De Berenger very well?
A. Yes.
Q. Did he wear whiskers on that Sunday?
A. No, he was close shaved upon that Sunday, I am certain.
Re-examined by Mr. Richardson.
Q. When you saw Mr. Smith, on the 6th of March, what question did you ask him?
A. I asked him, whether his master was out of the Rules of the Bench? that I had seen him on the Sunday fortnight, that he called at our yard, to know if the coach was gone; that I told him, the six o'clock coach was gone, but the seven o'clock coach would go in three quarters of an hour.
Q. You related the circumstance that had passed on the 20th of February, and then asked him, whether his master was out of the Rules of the King's Bench?
A. Yes.
Q. What did he answer?
A. That his master was not out of the Rules, and that if he was at Chelsea, it was more than he knew of.
Lord Ellenborough. You were struck with seeing him out of the Rules?
A. Yes.
Q. You thought it a very wrong thing of him?
A. Yes.
Q. And being shocked at it, you had a mind to enquire of his servant, whether he was within the Rules?
A. Yes.
Q. You did not say to him, Good God, Sir, how is it you are out of the Rules on this Sunday?
A. He did not stop to have any conversation.
Q. If he had stopped long enough, you would have told him so?
A. I do not know that I would.
Q. Where was he coming from, at a quarter past six?
A. He came up from the water-side; I cannot tell which way he came to the stable-yard gateway.
Q. And he seemed in a hurry to get home?
A. He did.
Q. How far is it from Asylum Place to Chelsea?
A. It is two miles from the bottom of our street to Buckingham-gate, and it is a mile from that to the middle arch of Westminster-bridge; I cannot tell how far it is from that to the Asylum.
Q. You did not see where he came from?
A. No.
Q. But he was in a hurry to get home?
A. Yes.
Mr. Park. It is three miles and a half, or four miles, my Lord.
A Juryman. Was it day-light or dark, when you saw him?
A. It was between the two lights; it was not very clear at that time.
Mr. Park. I will call this woman, and will put a question to her; I had not intended it, conceiving that what he said to his wife, could not be evidence.
Lord Ellenborough. You will call her, or not, as you see fit; I do not desire to have more persons called than is necessary.
Mr. Park. I must call her, as your Lordship has asked the question, what he told her?
Mr. Brougham. If your Lordship will permit us, we will examine Hopper now; he is extremely ill, I understand.
Lord Ellenborough. If you please.
Mr. Thomas Hopper sworn.
Examined by Mr. Brougham.
Q. What are you?
A. An architect.
Q. Do you know Mr. Cochrane Johnstone's premises at Allsop's buildings?
A. I saw them two nights ago.
Q. You saw a piece of ground that he possesses there?
A. I did.
Q. Will you look at that plan, which is lying there, for the laying out of the ground? (the witness looked at it.)
A. These plans I saw at the time.
Lord Ellenborough. That is two nights ago?
A. Yes, it is.
Mr. Brougham. Did you at the same time see the prospectus of the plan for laying out the place?
A. This, I believe, is a copy of it.
Q. What should you think is a reasonable compensation to the person who arranged that plan, and made that drawing, and the others connected with that plan, and the prospectus?
A. That it would be almost impossible for me to tell; that must be governed by the trouble that was attendant upon it, and of course of that I cannot be a judge.
Lord Ellenborough. It is a very well drawn plan?
A. Certainly it is.
Mr. Brougham. Are you aware, that a plan of that kind cannot be made out, without a survey of the ground?
A. Certainly.
Q. Are you aware, that in making a plan of that sort, there are various other plans previously made, before it comes into that state?
A. No doubt, there must be.
Q. Can you take upon you, from that, and from your understanding of the manner in which such plans are made, to say what would be a fair reasonable compensation for the trouble bestowed?
A. Mr. Cochrane Johnstone, whom I saw upon the premises, made a representation to me——
Mr. Gurney. We cannot hear that.
Mr. Brougham. From your own knowledge of the subject, and the ground, what should you take to be a reasonable compensation?
A. It is so governed by the trouble attending it, that I cannot say, with any precision; I should judge, from the calculation of the trouble that must attend it, that a compensation of from two to three hundred pounds, might not be excessive.
—— M'Guire sworn.
Examined by Mr. Park.
Q. Are you the wife of the person who has just been here now?
A. Yes.
Q. Did you know Mr. De Berenger, when he lived at Chelsea?
A. No.
Q. Did you know Smith, his servant?
A. Yes.
Q. Did your husband on any day, and if so, on what day, mention to you his having seen Mr. De Berenger, Smith's master?
A. Yes, he did on the 20th February, about ten o'clock at night.
Q. When he came home?
A. Yes.
Q. How do you happen to know it was the 20th of February, more than the 13th or the 6th?
A. It was the Sunday before Shrove-tuesday.
Q. What led you to recollect it so particularly?
A. It was my child's birth-day.
Q. Do you mean that Shrove-tuesday was your child's birth-day, or that Sunday?
A. The Sunday; the first child I ever had in my life.
Q. On that day he told you he had seen Mr. De Berenger at his master's yard?
A. Yes, he did.
Lord Ellenborough. Did he tell you at what o'clock he saw him?
A. Yes; at about a quarter past six.
Q. Did he tell you that he thought it was shocking he should be out of the Rules?
A. Yes, he did; that he wondered whether he had got his liberty or not.
Q. Did he say it was shocking he should be out of the Rules?
A. I cannot particularly say, whether he said it was shocking or not.
Q. Had you known these Smiths long?
A. About three years and seven months.
Q. You are in the habits of visiting them sometimes?
A. Smith came backwards and forwards to Chelsea, when his master lived at the end of the bridge.
Q. Have you kept up your acquaintance with them, since they lived in Chelsea?
A. Yes, I have.
Q. You are very well acquainted with them?
A. Yes, I am.
Q. Had you seen him that day, the 20th?
A. No; I saw him that day fortnight.
Q. Your husband did not stay at home to keep the birth-day of his child?
A. No; my husband is an ostler, and he cannot come and go at his own time.
Q. But he mentioned about the Rules to you, did he?
A. Yes, he did; he said he should enquire from Smith, the first time he saw him, whether his master had got his liberty or not.
Q. Had your husband an anxiety to know whether he had got his liberty or not?
A. No, I cannot say that he seemed anxious, but he said he wondered how he came down there.
Henry Doyle Tragear sworn.
Examined by Mr. Richardson.
Q. Do you remember being at Mr. Donithorne's house, in York-street, Westminster, in the month of February last?
A. Yes, I do.
Q. Were you staying at his house?
A. Yes, I was.
Q. Living and sleeping there?
A. Yes.
Q. When did you go there?
A. I went there on the 17th of February.
Q. On what occasion?
A. I let my house, No. 39, Little Queen-street, Holborn, where I had carried on the hatting business, and I went from thence to Donithorne's.
Q. Was it on the 17th you let your house, finally.
A. Yes, it was.
Q. Did you stay at Mr. Donithorne's until or after the Sunday following, the 20th of February?
A. Yes, and until this very time.
Q. Are you acquainted with the prisoner Mr. De Berenger?
A. Yes, I have seen him frequently previously to that, at Mr. Donithorne's house.
Q. Do you or not, remember having seen him on Sunday the 20th of February?
A. Yes, very particularly on that day.
Q. Did you see him more than once on that day?
A. Yes, I saw him twice on that day.
Q. When was the first time you saw him?
A. Between nine and ten in the morning.
Q. When was the last time you saw him?
A. Between eight and nine in the evening of the same day.
Q. Did he stay any time when you saw him the last time on that day?
A. Yes, he did.
Q. Both these times you saw him in Mr. Donithorne's house?
A. Yes.
Q. How long did he stay when he came in the evening?
A. It might be somewhere about half an hour; I cannot exactly say; it might be an hour, or it might be less.
Q. Was it thereabouts, as nearly as you can remember?
A. Yes; it was, as nearly as I can remember.
Q. You are sure it was somewhere thereabouts?
A. Yes.
Q. Was he a visitor of Mr. Donithorne's, or did he come on business?
A. I have seen him frequently talking to Mr. Donithorne, about drawings, designs of furniture, and things of that sort.
Q. What is Donithorne?
A. He is a cabinet maker.
Q. You had seen him before that time?
A. Yes; Mr. Donithorne has shewn him to me.
Lord Ellenborough. What are you yourself?
A. A hat manufacturer by trade.
Q. You have been out of business since that time?
A. Yes, I have; not entirely out of business; but I have not a house at the present moment; I went there to reside, till I saw a house that would suit my purpose.
Q. He was talking with Mr. Donithorne?
A. Yes, he was.
Mr. Richardson. Was any body else present?
A. Yes; there was my wife, Mr. Donithorne and Mrs. Donithorne; we were in the parlour in the evening, when he came.
Q. Did he sit down?
A. He said that he would not come into the parlour to disturb the company; Mr. Donithorne went to the back part of the house with him, into the garden.
Q. Did he come into the parlour?
A. Yes, he did just come into the parlour; but he said he would not disturb the company.
Q. Did he afterwards come in?
A. I do not know whether he came in afterwards or not.
Q. But you saw him there?
A. I saw him in the house.
Q. You are well acquainted with his person?
A. Yes; I had seen him repeatedly before that.
Q. You did not see him after that?
A. No, I did not.
Cross-examined by Mr. Gurney.
Q. Do you remember being struck with any alteration in his appearance that night?
A. No.
Q. How long before that time had he left off wearing the large whiskers he used to have?
A. I cannot say.
Q. He had not them on that night?
A. I cannot say that I saw any alteration.
Q. He had no whiskers on that night?
A. No.
Q. He had never been used to wear whiskers?
A. That I cannot say.
Q. You knew him well, and had seen him often?
A. Yes.
Q. And you mean to say, you do not remember whether he wore whiskers on not?
A. He might or might not, I do not look so particularly into a gentleman's face, as to see whether he has whiskers or not.
Q. I happen to look at your face, and I cannot help seeing that you have whiskers, and a man who has such, might look at those on another person's face; do you mean to say, that in viewing the countenance of a gentleman you were acquainted with, you did not look so as to see whether he had whiskers?
A. Not unless a person spoke to me about them.
Q. Unless a person said "whiskers," you would not look at them?
A. No.
Q. Mr. De Berenger had not whiskers that night, however?
A. No.
Q. You were a hatter, in business at one time, and are not now?
A. Yes; I sell a great many hats now, though I have no house.
Q. Perhaps though you do not take notice of a man's whiskers, you take notice of his coat; what coat had he on?
A. A black coat.
Q. That you did take notice of?
A. Yes.
Q. It was so remarkable he should wear a black coat, you took notice of that?
A. No; I do not know that it is remarkable; but I know he had a black coat.
Q. Was his head powdered?
A. I cannot say; I did not see his hat off.
Q. He staid half an hour with his hat on?
A. He went into the back part of the house.
Q. Do you mean to say, he staid half an hour in the house with his hat on?
A. I do not mean to say, he stopped the whole time in house; he went into the garden.
Q. On the 20th of February he went into the garden?
A. Yes.
Lord Ellenborough. Did he stand ancle-deep in the garden, or how?
A. I cannot say, indeed.
Mr. Gurney. Was not there a good deal of snow at that time on the ground?
A. I cannot say, indeed.
Q. At what time was this?
A. Between eight and nine in the evening.
Q. And they took a walk in the garden?
A. Yes; it was in consequence of some alteration they were going to make in the premises.
Q. So that they went at ten o'clock at night to survey this alteration in the premises?
A. No; it was between eight and nine.
Q. It is just as dark then as it is at ten o'clock; they went to make a survey in the morning, did they not?
A. They had made a survey in the morning, I saw them pacing the garden.
Q. You told me they went out in the evening, to make a survey of the premises?
A. I cannot say what they went for, but I know they went there.
Q. Do you happen to know, whether Mr. Donithorne is acquainted with Mr. Tahourdin, the attorney?
A. I do not know whether he is acquainted with him, or not.
Q. You swear that?
A. I swear that; I do not know that he is acquainted with him particularly.
Q. Upon your oath have you not seen them together?
A. Yes, I have.
Q. Had not you seen them together before that time?
A. No, I had not.
Q. How often have you seen them together since?
A. I never saw them together but once.
Q. When was that?
A. One day last week.
Q. Do you mean to swear, that you did not know that they were acquainted with each other before that time?
A. Yes, I do.
Q. What is Mr. Donithorne; a cabinet-maker?
A. Yes.
Q. This you say was about making alterations in the garden; are they made?
A. No, they are not.
Q. They are waiting till February perhaps, to survey this garden again?
A. I do not know, indeed.
Q. When were you first sent for to become a witness on this occasion?
A. I never was sent for.
Q. When did you go to any person upon the subject?
A. I never went to any place upon the subject, further than going myself to Mr. Tahourdin; but he did not send for me.
Q. You went to Mr. Tahourdin without being sent for?
A. I went with Mr. Donithorne.
Q. When was that?
A. I cannot exactly say, but I think it was some day last week.
Q. Did you know before last week that you were to be a witness?
A. No, I did not.
Q. Did you know before last week, that it was at all material that you should recollect the 20th of February?
A. No, I did not know it; but I can tell you one particular thing that makes me recollect it; I let my house, No. 39, Little Queen-street, Holborn, on the 17th of February, to Samuel Nicholson, and went to Mr. Donithorne's to live; and on that very morning, the 20th, the Sunday, Mr. Donithorne (I rather indulge myself with lying in bed on Sunday morning) came to my door and knocked, and told me Mr. De Berenger was come to look over the house, and that if I would get up he should be obliged to me.
Mr. Gurney. I congratulate you on the cure of your deafness[417:A].
Lord Ellenborough. You lay a-bed and were disturbed?
A. No, not particularly; only I lay a-bed on the Sunday till about nine o'clock.
Lord Ellenborough. Do you know Smith, De Berenger's servant?
A. I have seen him.
Re-examined by Mr. Richardson.
Q. You saw them in this piece of garden in the morning?
A. Yes.
Q. My learned friend has asked, whether the alterations are carried into effect, or not?
A. They are not.
Q. Do you know, whether Mr. De Berenger went away after that?
A. He stopped about half an hour.
Q. Has he been absent from a period soon after the 20th of February?
A. Yes; I never heard much about him till last week.
Lord Ellenborough. When they came to you, you immediately recollected the 20th of February?
A. When who came down to me?
Q. When you went to Mr. Tahourdin, you immediately recollected the 21st of February?
A. He asked me, whether I could recollect on what day I came to this house; and I told him I do not know that I can recollect exactly; but I can go to Mr. Nicholson, upon whom I drew a bill at two months, for half the money for the goods and fixtures of my house, and ask him whether it is correct.
Q. He asked you, whether you recollected the 20th of February?
A. Yes.
Q. Did you say you recollected it by being disturbed in the morning?
A. Yes, I did.
Q. There was no snow in the garden when they paced it in the way you have spoken of?
A. I cannot positively say; I did not charge my memory with that.
Q. Are you perfectly certain in your recollection, as to having had your sleep disturbed?
A. Yes, I am perfectly certain of that.
Q. You know De Berenger very well?
A. I have seen him several times at Mr. Donithorne's house?
Q. And you know Tahourdin?
A. I never saw him till last week.
Q. Do you know where Mr. De Berenger dined that day?
A. No, I do not.
Q. At what time did he come in the morning?
A. Between nine and ten.
A Juryman. That might be any other Sunday morning, as you were in the habit of indulging on a Sunday morning?
A. No, but I know the time; it was the Sunday after I let my house; I have it impressed upon my mind that it was on the 20th of February I saw him at this house in York-street, Westminster.
A Juryman. Then the lying in bed in the morning had nothing to do with it?
A. No.
Lord Ellenborough. Have you ever been bail?
A. Yes.
Q. Have you ever justified in any action?
A. Yes.
Q. What action was that?
A. A fifteen-pound action.
Q. How long was that ago?
A. Five or six months.
Q. Is that debt paid?
A. Yes.
Q. Did you ever justify in any other action?
A. Yes, I have.
Q. Is that satisfied?
A. Yes.
Q. You are clear as to that, that these debts are paid?
A. Yes.
Q. Were you never bail but twice?
A. I do not recollect that I was; I might be, but I do not recollect; but I have not been in the habit of being bail for people.
Q. You have not been in the habit, but you have been twice:—what was the other sum besides the fifteen pounds?
A. I do not exactly know what the money was; but the other was more than that, a good deal.
Q. That is only within a few months?
A. I dare say that is five months back.
Lord Ellenborough. You may go away, and let me advise you not to be either a bail or a witness again. If the master had been here with the book, I have no doubt you might have gone much further with him.
FOOTNOTE:
[417:A] The Witness, at the commencement of the cross-examination, had affected not to hear; Mr. Gurney gradually sunk his voice, and at last spoke in a very low tone, and the Witness heard, notwithstanding.
Mrs. Tragear sworn.
Examined by Mr. Park.
Q. Are you the wife of the last witness, Mr. Doyle Tragear?
A. Yes.
Q. Do you know the Defendant, Mr. De Berenger?
A. Yes.
Q. Have you seen him often?
A. Yes, I have.
Q. Were you at Mr. Donithorne's house in the month of February last?
A. Yes.
Q. At what time did you and your husband go to stay there, after having given up your house?
A. The day we gave up our house was the 17th of February.
Q. And then you went down to Mr. Donithorne's?
A. Yes.
Q. What day of the month was it after you had gone there, that Mr. De Berenger called there?
A. On the Sunday.
Q. That would be on the 20th?
A. Yes.
Q. What time in the morning did he first call?
A. Between nine and ten.
Q. Do you remember, whether your husband was up or not, when he first came.
A. No, he was not.
Q. What is Mr. Donithorne?
A. He is in the cabinet business.
Q. Did you see Mr. De Berenger do any thing that morning?
A. Yes; Mrs. Donithorne came up (we were not up that morning) and desired us to get up and get our rooms ready, for that she had a gentleman to look over the house.
Q. In consequence of that you did get up?
A. Yes.
Q. Did you see Mr. De Berenger afterwards there, when you got up?
A. Yes; I saw him; I drew down the sash in the back room, and I saw him through the window; I saw him in the garden.
Q. Does the sash draw up or down?
A. Both.
Q. What was he doing in the garden?
A. He appeared to be measuring the ground, I believe.
Q. Had you any conversation with Mr. De Berenger at that time?
A. No.
Q. You are sure he was the man?
A. I am sure he was.
Q. Did you see him again that day at Mr. Donithorne's, and at what hour in the day?
A. I did; I saw him again in the evening.
Q. At what time?
A. Between nine and ten—I mean between eight and nine.
Q. Did he stay any time then?
A. I believe he did; we were in the parlour, along with Mr. and Mrs. Donithorne, and he came; and he (Mr. Donithorne) asked him to come in; and he said, he would not come in to disturb good company.
Q. Are you sure he was the man?
A. I am sure he was the man.
Q. How near was he to you?
A. We got up, of course, when the gentleman was coming in, and we saw the gentleman in the small parlour.
Q. What happened then, when you got up?
A. He went to speak with Mr. Donithorne, and they walked backwards into the garden.
Q. Did you see them go out of the door that leads into the garden?
A. Yes, I saw them go backwards.
Q. You did not go to look after what they were doing?
A. No.
Q. Did you afterwards see them again, after they came from the back part of the house?
A. No, I did not.
Q. You saw Mr. De Berenger no more?
A. No.
Cross-examined by Mr. Bolland.
Q. How long has your husband had the affliction of deafness?
A. He has, at times.
Q. So we have seen to-day; you were indulging that morning in bed, as well as your husband?
A. Yes.
Q. And Mrs. Donithorne came to wake you?
A. Yes.
Q. It was natural she should do it?
A. Yes.
Q. Mr. Donithorne did not wake you?
A. No.
Q. But Mrs. Donithorne came and waked you, and wished you to get up, because somebody was coming to see the house?
A. Yes.
Q. Do you mean to say, that Mr. De Berenger afterwards went through the house, so as to render that necessary.
A. He went up into the attics.
Q. Did he go into your room?
A. He did not.
Q. What occasion was there for your getting up to see him measure the garden?
A. There was no occasion for that; but we were getting up, and she thought the gentleman might come into our room.
Q. Was she in the habit of calling you?
A. Sometimes she has done it.
Q. Who was with Mr. De Berenger, besides Donithorne.
A. I do not remember seeing any other.
Q. Who carried the rod with which they measured; was it Mr. De Berenger or Donithorne?
A. I cannot say, indeed.
Q. You may recollect who held the paper, and put down the measurements; which of the two carried the paper, and which carried the measuring rod?
A. I cannot tell which of the two it was, they being at the top of the garden almost.
Q. It is only a small garden, we know the situation?
A. It is a long garden.
Q. Which of them was it?
A. I cannot say, indeed, which of them it was.
Q. But one of them did?
A. Yes.
Q. Was there snow on the ground then?
A. No, it was a wet morning, I think.
Q. Are you sure it was a wet morning?
A. I think it was a wet morning, but I did not take particular notice of the day.
Lord Ellenborough. It had rained a good deal, had it?
A. Yes, it had.
Q. There was a good deal of rain last February, was there?
A. I think that was a wet morning.
Mr. Bolland. Had the effect of the rain been such, as to give them a good view of the surface of the ground, so as to measure?
A. Yes, I think it had.
Q. The snow was melted?
A. I think it was.
Q. And you saw them lay the rule regularly, that they could take the measurement properly?
A. Yes.
Lord Ellenborough. Did your husband fail, when he gave up the hatting business?
A. Why, yes.
Q. There had been no commission of bankrupt against him?
A. No.
Q. And he gave up his business in that house, and you have been since living at Mr. Donithorne's house?
A. Yes.
Q. How long has he been in the bail line?
A. In the bail line!
Q. How long has he been bail for people?
A. That is unknown to me, if he has.
Q. You have never known of people coming after him to be bail?
A. No, I have not.
Q. He has told us he has been bail for two persons; you know nothing of that?
A. No.
Q. When did he fail?
A. On the 17th of February.
Q. Has there been an execution in the house you lived in since that?
A. No.
Q. Is Mr. Donithorne a creditor of your husband's; do you owe him money?
A. No.
Q. Is he a relation?
A. Yes; he is a cousin.
Lord Ellenborough. How far is York-street, Westminster, from the Asylum?
Mr. Park. I understand it is behind the barracks in Bird-cage Walk.
Lord Ellenborough. It is about a mile I should suppose then?
Mr. Park. From a mile to a mile and a half.
Mr. Gurney. Is Mr. Donithorne here?
A. I believe he is.
Mr. Gurney. Then I suppose we shall see him.
Isaac Donithorne, sworn.
Examined by Mr. Richardson.
Q. We understand you live in York-street, Westminster?
A. Yes.
Q. Do you remember Mr. Tragear coming to your house, after he had given up his house in Queen-street?
A. Yes.
Q. Do you remember what day it was?
A. I believe it was Thursday; I am positive it was.
Q. What day of the month?
A. The 17th, I think, or the 18th of February.
Q. Are you well acquainted with the person of Mr. De Berenger?
A. Very well; I have been for some time.
Q. You are a cabinet-maker?
A. I am.
Q. Had Mr. De Berenger furnished you with designs for furniture at any time?
A. Yes, he had.
Q. Do you or not remember seeing him on the Sunday after that time when Tragear came?
A. Yes.
Q. That would be the 20th?
A. Yes.
Q. At what time in the day did you first see him?
A. Between nine and ten in the morning.
Q. For what purpose did he come?
A. To look over the grounds. I was going to make some alterations in my little garden, and also about other work that I had in hand.
Q. What other work do you mean?
A. Work I had for Miss Johnstone, No. 18, Great Cumberland-street; work I had in hand; I furnished all her house.
Lord Ellenborough. Mr. Cochrane Johnstone?
A. Yes.
Mr. Richardson. You were furnishing Mr. Johnstone's house at that time?
A. A house for Miss Johnstone.
Q. Did you see him again in the course of that same day?
A. Between eight and nine in the evening.
Q. Did he call again at your house in York-street?
A. Yes.
Q. About what time was it?
A. It was between eight and nine; I did not take particular notice of the time, not expecting there would be any question about it; we were all sitting in the parlour, and Mr. De Berenger knocked at the door, and I let him in, and he walked in, and while I was handing a chair to him to sit down, he said I will not disturb your good company, and he said he would walk into the back; and he did, and he staid about a quarter of an hour or twenty minutes.
Q. Did you walk back together?
A. Only into the parlour; in the morning, we were, I dare say, an hour together in the garden.
Q. Did you go into the garden in the evening?
A. We did not.
Q. What was the purpose of his calling in the evening?
A. Merely to answer the purpose of the morning, we meant to do something in the garden; he said he would call if he came that way in the evening, to tell me when he would draw a plan for the work I was going to do in the garden; I was going to build a room there.
Q. He was to draw a plan?
A. Yes.
Q. In the evening he called about the same business?
A. Yes.
Q. Was any further answer to be given to him?
A. This was the business; I was going to turn the front part of my house into an inn, and to make the back part of my house into pleasure grounds.
Q. And you had consulted him about the mode of doing it?
A. Yes, I had; Mr. De Berenger told me he could make out a handsome plan for me.
Lord Ellenborough. Did he tell you what you were to pay for it?
A. That house was not his, I pay £.60 a year for it.
Q. He did not tell you, that from £.200 to £.300 would not be excessive for a good plan?
A. Not for that plan.
Q. What did you expect to pay for a good plan?
A. That depended upon what sort of plan it might be, they might make a good plan worth that.
Q. You would not scruple paying that for a good plan?
A. I think I should for that for I had not the money to pay it.
Q. He put down the measurements in the morning?
A. Yes, he paced it over, but he told me he would come again and measure it quite correct.
Q. He put down the figures?
A. I do not know precisely whether he did or not.
Q. He had his pencil?
A. Yes, and a ten-foot rod that he carried.
Q. Did he bring a ten-foot rod to walk with?
A. I have a ten-foot rod myself, as a cabinet maker, and Mr. De Berenger paced it over.
Q. What sort of a morning was this?
A. A damp cold morning, a kind of misty rain; very cold.
Mr. Richardson. He said he would call at a subsequent time?
A. Yes, he did; here are all the designs.
Q. Those are the designs of furniture?
A. Those are the designs of furniture that I made for Miss Johnstone, or the honourable Cochrane Johnstone, for furniture in Great Cumberland Street; I believe I have some notes respecting them.
Cross-examined by Mr. Adolphus.
Q. Mr. De Berenger came to you, as a friend of Mr. Cochrane Johnstone, to give you plans for Mr. Cochrane Johnstone?
A. That was the case.
Q. He never gave you plans for any body else's furniture?
A. Never.
Q. You never employed a draftsman of his class to give you plans?
A. No, I made up two pieces of furniture from his plans, to go into a library; that was the first thing.
Q. He came as a friend of Mr. Cochrane Johnstone's?
A. Yes, to look to the furniture.
Q. And then, out of friendship to you, knowing you had little alteration to make, he proposed to assist you?
A. Yes; I first proposed the business, and Mr. De Berenger approved of it.
Q. He was going to make a survey of the inside of your house that morning; was he not?
A. He did of that also.
Q. Particularly your lodgers bed-room; he was very anxious to see that?
A. And all my own.
Q. He was very anxious to see your lodgers bed-room?
A. Not that particularly.
Q. You went and knocked up Mr. Tragear?
A. Yes; I went up and desired them to rise, and to clear up their room, for that he was coming there.
Q. Did you desire them to rise yourself?
A. Yes, there is not a doubt of it, for I went up stairs.
Lord Ellenborough. Will you take upon you, upon your oath, to say, that you went into that bed-room out of which they had come?
A. Yes, twice over.
Mr. Adolphus. What is your christian name?
A. Isaac Donithorne.
Q. Do you know any thing about the Stock Exchange?
A. A little; something about it.
Q. Have you ever done business there?
A. Never in my life.
Q. Have you ever employed an attorney?
A. Yes.
Q. Who is your attorney?
A. That gentleman there.
Q. What is his name?
A. Mr. Tahourdin.
Q. In what particular business is Mr. Tahourdin your attorney?
A. By the desire of the honourable Cochrane Johnstone, who thinks himself very ill used by a set of villains.——
Q. After all that preamble, as to Mr. Cochrane Johnstone's being ill used by a set of villains, will you answer my question, what Mr. Tahourdin is doing for you?
A. Issuing some writs.
Q. What have you desired him to do?
A. To issue some writs.
Q. How many?
A. A hundred and thirty-five.
Lord Ellenborough. A hundred and thirty-five writs, of what kind?
Mr. Park. Qui tam actions, and that was the reason I did not propose calling him.
Mr. Adolphus. Are you to pay Mr. Tahourdin the costs of those actions, or Mr. Cochrane Johnstone?
A. Mr. Cochrane Johnstone most undoubtedly, I should think.
Mr. Park. I really think that ought not to be asked.
Lord Ellenborough. If a man at my instance issues a hundred and thirty-five writs, to be sure I must bear him harmless; how long has your neighbour Tragear failed?
A. Why he never failed, to my knowledge; he left his shop publicly, and came to my house.
Q. He does nothing in the bail way, by way of filling up his time, does he?
A. I know nothing about his private concerns.
Lord Ellenborough. You take upon yourself to say, that you know he has not failed; is not his wife likely to know, she has told us he did when he came to your house. You may go about your business.
A Juryman. Are you a journeyman or a master?
A. I am a master in a small way, sometimes I keep three or four men.
Lord Ellenborough. Whom else do you call?
Mr. Park. No more, my Lord.
Lord Ellenborough. Do not you prove where De Berenger dined that day?
Mr. Park. No, I have no means of doing that.
Mr. Gurney. I beg to call Mr. Murray, to put one question to him, in contradiction to Smith?
Lord Ellenborough. If that question occasions a reply that will throw us into the night; if you think this case of alibi requires a serious answer, you will of course give it; but I think you would disparage the Jury by doing so.
Mr. Gurney. I will not call him, my Lord.
Lord Ellenborough. Do not let me supersede your discretion, if you think there is any use in having your witness.
Mr. Gurney. No, my Lord, I am quite content with the case as it stands.