Mr. Gurney. My Lord, the Counsel for the defendant were not uninstructed, as to the evidence which these persons could give; because, annexed to the affidavit which your Lordship has stated, of Lord Cochrane, were the affidavits of all the servants, of the one who is not now in England, as well as of the three who are in England. They are all printed together in Mr. Butt's pamphlet, which was produced at the trial. Therefore the Counsel for the defendant were informed of every circumstance, and they might, if they had thought it would serve their client, have called all those persons as witnesses.
Mr. Justice Le Blanc. There is no rule better established, than that after trial we cannot receive the affidavits of persons who were called, or who might have been called as witnesses. Whatever might be the reason for keeping back their testimony, that the Court cannot hear.
[The following Affidavit was read.]
"In the King's Bench.
"The King against Charles Random De Berenger & others.
"The Honourable William Erskine Cochrane, Major in the fifteenth regiment of dragoons, now residing in Portman-square in the county of Middlesex, on his oath saith, That he was seized with a violent and alarming illness on the first of January one thousand eight hundred and fourteen, at Cambo in the south of France; and that this deponent remained in a state of dangerous illness until the eighteenth of the following month. That early in February last he wrote to his brother Lord Cochrane, to acquaint his Lordship with this deponent's situation, as deponent had then very little hope of recovery, and telling him that he had received a notification that he would be ordered to England, where he should proceed, if ever able to undertake the journey. And this deponent further saith, that the annexed certificate was given to him for the purpose of being laid officially before a board of medical officers at Saint Jean de Luz, by the surgeon of this deponent's regiment, and is in the said surgeon's hand-writing.
W. E. Cochrane."
Sworn in Court,
this 14th day of June 1814.
By the Court.
"Statement of Major the Honourable William Cochrane's Complaint. Monday, February 12, 1814.
"Was seized with the usual symptoms of fever on the 1st of January, which was continued for the first three days; then the remittent character developed itself. The evening paroxism was severe every day, and he was all through much worse on the third day than on the two preceding days. The treatment consisted in keeping the bowels perfectly free and the skin moist, and this was generally obtained by calomel and antimonial powder combined, in the proportion of two grains, and three every third hour, and an occasional purge of neutral salts. When the bowels were well emptied, I frequently gave saline draughts, which kept the skin moist and favourable for the exhibition of bark, the use of which was commenced the 16th day. On the 23d he had a crisis, and went on very well till the 1st of February, when he suffered a relapse, attended with rather alarming symptoms. There was great determination to the head, the eyes were suffused, great drowsiness, and a tendency to comæ; however, these symptoms gave way in six hours, in which time he was actively purged, the skin was made moist, and a profuse perspiration kept up for twelve hours, which left him perfectly tranquil and free from fever. From this term I continued to give him small doses of calomel, till his mouth was very slightly affected. He continued free from fever from the morning of the 2d till the 7th; his appetite good, his strength increasing, and every sign of health. On that morning he had a second relapse, but by no means so violent, though more embarrassing; he has not been well since, and has suffered very much indeed. The treatment latterly has been attention to the state of his bowels and diet. He has not taken bark since his first relapse. I hope the change of air and objects will serve him.