The Trial of Charles Random de Berenger, Sir Thomas Cochrane Part 86

_A._ I cannot exactly recollect.

_Q._ About when; have you any minute on the back of it?

_A._ Here are some letters here that I know it by.

_Q._ To whom did you give change for it?

_A._ Mr. De Berenger's servant, Smith.

_Q._ The day you cannot exactly fix?

_A._ I cannot.

_Mr. Serjeant Best._ I submit to your Lordship, that is no evidence, until they call Smith.

_Mr. Gurney._ On referring to Mr. De Berenger's memorandum book, I find "W. S. .50." which I consider as connecting itself with this.

_Mr. Park._ That book is not proved.

_Mr. Gurney._ It is proved by being found in the trunk.

_Mr. Park._ I object to that book being read; that is not the book which was before proved; as to that, Mr. Lavie gave some evidence of the hand-writing before the entry was read.

_Mr. Germain Lavie called again;_

_Examined by Mr. Gurney._

_Q._ Do you believe that to be the hand-writing of Mr. De Berenger?

_A._ Yes I do, most certainly.

_Cross-examined by Mr. Park._

_Q._ I observe this is pencil writing you have been speaking to; did you ever see any writing of this person in pencil before?

_A._ No, never.

_Q._ There is no difference in a man's writing with a pencil and with a pen?

_A._ I conceive that to be written by Mr. De Berenger.

_Q._ It is exactly like the character of that letter which has been given in evidence upon your testimony?

_A._ Yes, it is the same sort of writing.

_Mr. Serjeant Best._ I submit to your Lordship, still I am not removed from my objection. There is first a check of .98. 2_s._ 6_d._; then an attempt is made to trace .50. of that into the hands of Mr. De Berenger; the way in which that is attempted is, that a person says he gave change for that note of .50.;--beyond that, they have produced a pencil memorandum, proved to be in the writing of Mr. De Berenger, at least there is some evidence of that; that pencil memorandum is merely this, not that a particular bank note; not that the note which came into the hand of the witness, and for which he gave change, but that a bank note of .50. was paid to W. S. It does not appear that it was that bank note, and this, I submit, is no evidence in a criminal case.

_Mr. Gurney._ I submit to your Lordship it is evidence, _valeat quantum_, it does not prove that Smith received that bank note from De Berenger, but that it came from De Berenger's servant; I shall give no other evidence to bring it home to De Berenger, and I submit that it is admissible evidence, as that which is proved to come so near as the child, the wife, or the servant.

_Lord Ellenborough._ I think it is not evidence; it does not get the length of William Smith; but even if it were to be taken to refer to William Smith, it does not connect it with this bank note, or any other means of payment. I cannot translate "W. S." into "William Smith my servant," and ".50." into "this .50. bank note." You do not call William Smith.

_Mr. Gurney._ No, certainly not, my Lord,--I shall leave that to my learned friends.

_Mr. Benjamin Bray sworn;_

_Examined by Mr. Gurney._

_Q._ Where do you live?

_A._ At Sunderland.

_Q._ Will you look at this .40. note, [_shewing the witness the note just produced_,] did you receive that .40. note from any one?

_A._ From the waiter of the Bridge Inn at Sunderland.

_Q._ Did you see Mr. De Berenger about the time of the receipt of it?

_A._ I had seen him often prior to that.

_Q._ At Sunderland?

_A._ Yes.

_Q._ A waiter brought it to you?

_A._ Yes, with Major Burne's compliments.

_Q._ He brought you some message with it?

_A._ Yes, I gave him six .5. notes for it, and ten .1. notes.

_Q._ Bank of England notes?

_A._ No, of the Durham Bank.

_Q._ Did any thing pa.s.s between you and Mr. De Berenger afterwards, on the subject of that note?

_A._ The waiter returned in a few minutes afterwards.

_Q._ Did any thing pa.s.s afterwards between you and Mr. De Berenger, on the subject of that note?

_A._ Yes, he came shortly afterwards to take his leave of me.

_Lord Ellenborough._ Where did he come to?

_A._ To my house.