Chapter 25

_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.

[_Examined by Mr. Park._]

_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.