Not in obedience to the subpœna?—I am not aware of it.
Mr. Justice Maule. You had better postpone it till to-morrow; you will be able to get at it by that time?—It is not in my department.
Mr. Serjeant Bompas. What is the name of the person in whose department it is?—In that of the receipt-clerks.
Give me the name?—Mr. Hayburn.
Mr. Justice Maule. As this extreme rigour of proof is insisted upon, you may have twenty clerks?—I have no doubt that Messrs. Zulueta had the book away frequently; but I do not know it myself.
Mr. Justice Maule. Suppose we had an earthquake every three years, one would say that was frequently. If a man got a dinner only once a week, one would not say that that was frequently. It depends upon what it is?—I do not know how often it was.
Do you mean once in ten years, or what?—Almost daily.
Mr. Justice Maule. I think now, assuming that Mr. Kelly does not raise any question as to the fact of the pass-book going back with the vouchers, it being now taken that the draft whatever it was, or order, upon which this money was paid, having been returned to Zulueta & Co. before the notice to produce was given to the prisoner, that notice naming the cheque or order mentioning the date and mentioning the sum, and it containing the subsequent clause, “all other papers, &c., relating to this matter,” supposing instead of being a cheque or draft it was an acceptance for a sum made payable at their bankers, the subsequent part of the notice to produce is to be drawn in aid of the previous part, and that taking the two parts together it amounts to a reasonable notice to the prisoner to produce the paper, if in his power, even if it was an acceptance and not a cheque or draft. Then the question comes to this, whether the document here is admissible in evidence against the prisoner. The prisoner is a member of the firm in England, not absent in Spain as he might be, but he is in England attending to this matter; and notice having been given by the bankers of Messrs. Zulueta by the return of the vouchers that they had paid such a sum of money upon such an account, that that amounts to a statement to each of the partners of Zulueta & Co., and it is reasonable to suppose that they were acquainted with the statement in the pass-book and that document, and that they amount together to this, that it is the same as if you could show this gentleman had said to Zulueta & Co., on such a day I paid to such a person such an amount for your house: and we think the witness may be interrogated as to the account upon which he paid this money.
Mr. Serjeant Bompas. On whose account did you pay that 650l.?—Zulueta & Co.
On what day?—On the 29th of August, 1840.