Mr. _Kelly_. I do not understand how this addition to the charter-party
is evidence.
Mr. Justice _Maule_. It is at the top of page 6?
Mr. _Kelly_. It is a memorandum: you propose to read this?
Mr. Serjeant _Bompas_. Yes.
Mr. _Kelly_. I do not see the importance of it; but I do not see how it
is evidence.
Mr. Justice _Maule_. Do you object to it?
Mr. _Kelly_. Yes, my Lord. I will not say any thing of the purpose for
which it is offered in evidence, or the object of it. The charter-party
is signed by the prisoner at the bar himself, on behalf of the house, as
agents for the house of Martinez; but with regard to this document,
which my learned friend calls a “memorandum of charter-party,” it is the
sheet of paper in my hand, signed “Thomas Jennings,” and signed by
nobody else: it is not shown to be in the handwriting of the prisoner,
nor ever to have been in his hands, nor that he had any thing to do with
it: it is a paper signed by Captain Jennings, and found by Captain Hill
on board the vessel, or delivered to him by Captain Jennings on board
the vessel. What evidence is that against the prisoner at the bar? I do
not know what the paper is worth; but I do not know how your Lordships
can admit it. It may be a document treasonable in its nature, or it may
have been written the day before it was delivered to Captain Hill.
Mr. Justice _Maule_. There is some doubt about this: our opinion is,
that in the present stage of the case this document is not admissible.
There is certainly a reference in the charter-party to the captain being
indebted to the charterers in a certain sum, acknowledged elsewhere,
the freights being held as a lien against those debts. This
charter-party is dated London, 19th of October; the paper proposed to be
put in evidence is dated the 21st of October, so that it may not have
been in existence at the time when the first paper was signed; it is
therefore hardly to be referred to as a document mentioned in the
charter-party. Whether something may arise to make the custody of Mr.
Jennings evidence against Mr. Zulueta, is a question not now necessary
to be decided: but the question is, whether in the present stage of the
cause this is admissible. There is a reference certainly to an
acknowledgment elsewhere. The proper and natural custody of that
acknowledgment would be either the house of Zulueta & Co., or Pedro
Martinez & Co.; it is an acknowledgment of a debt to them, and it is
found in the custody of the debtor; it is proved by the signature of
Zulueta & Co., and they or their principals are the parties who would
have the custody of it; they may produce it if they wish to repel any
inference which may arise from it, but at present we think it not
admissible in evidence.
Mr. Serjeant _Bompas_. We call for that paper mentioned at the end of
the memorandum; we have given you notice to produce it.
Mr. _Kelly_. If you mean to call for any paper, just put in your notice,
so that we may see what document it is.
_William George White_ sworn. Examined by Mr. Serjeant _Bompas_.
Just take that in your hand. (_Handing a paper to the Witness._) Are you
a clerk to Sir George Stephen?--I was employed by him.
Did you serve a copy of that notice upon any body, and upon whom?--Yes,
I did serve a copy of it.
Upon whom?--Upon Messrs. Zulueta and Messrs. Lawford & Co., and Mr.
Jennings, or left it at the office: I either served it on the parties,
or left it at the office.
Cross-examined by Mr. _Kelly_.
There was a question put to you, which my learned friend did not give
you time to answer; are you a clerk to Sir George Stephen?--No.
How came you to be employed in this matter?--I happened to be in his
office, and he asked me to serve it.
What are you?--A clerk in a wine-merchant’s counting-house.
When did you serve this?--Will you allow me to look at it again? By all
means. (_It was again handed to the Witness._)--I served one copy on the
20th on Messrs. Zulueta & Co.
The 20th of this month?--Yes, and the 21st on Messrs. Lawford & Co., and
on the 23rd upon Thomas Jennings: it was not signed or dated.
You have not answered the question; I wanted to know when you served
that paper, of which that is a copy, either upon Mr. Zulueta, or Messrs.
Lawfords, his solicitors?--On the 20th of October on Messrs. Zulueta &
Co.: the copy was without any date or signature.
Who gave you it to serve?--I had it from Sir George Stephen.
Did he tell you why it was without any signature at all?--No.
He desired you to go and serve it?--Yes.
Now I perceive that that one has a signature; when did you serve upon
either Messrs. Zulueta & Co., or Messrs. Lawford & Co., a notice with a
signature?--Upon the 26th of October I served all three with a copy.
That was yesterday; what time was it?--I think that Mr. Jennings was
about--
I am not asking you about Mr. Jennings; but upon my client, Pedro de
Zulueta, or Messrs. Lawford, what time did you serve it upon
them?--About five o’clock I served it.
Upon whom?--Not upon Mr. Zulueta himself.
Upon the solicitors?--No; not upon the solicitors themselves.
I am speaking of the one with a date and a signature; when did you serve
either Mr. Zulueta or his solicitors?--The 26th.