Court of King's Bench, Guildhall. (continued 2)
Reading edition
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:
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.