"In the King's Bench.
"The King against Charles Random De Berenger, & others.
"Thomas Dewman, servant to Lord Cochrane, maketh Oath and saith,——"
Lord Ellenborough. This was a person called as a witness on the trial; if the affidavit goes beyond what he then stated, or in contradiction to what he stated, it cannot be received.
Lord Cochrane. Would your Lordship permit me to explain the reason why he was not interrogated?
Mr. Justice Bayley. It is a settled rule, not to allow the affidavits of persons who might have been called upon the trial, much less of persons who were called.
Lord Ellenborough. And if any were not called, they were not called under the discretion of your Lordship. It would be a very dangerous thing, if persons whose evidence may have been discreetly kept back, should afterwards be admitted to come forward as witnesses.
Mr. Dealtry. The next is the affidavit of Sarah Busk.
Lord Cochrane. My humble hope is, that you will be pleased to grant a new trial, in order that these persons may have the opportunity of being examined: they were not called from an error in the brief, which (so little was I conscious of any participation in the fraud) I had not even read.