Chapter 28

_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:

[417:A] The Witness, at the commencement of the cross-examination, had affected not to hear; Mr. Gurney gradually sunk his voice, and at last spoke in a very low tone, and the Witness heard, notwithstanding.

_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.