Mr. Serjeant _Bompas_. This is in answer to that.
Mr. Justice _Maule_. The letter of the 26th of September is the
answer:--
“We have received your letter of yesterday, whereby observe that the
sum we have remitted you will not be sufficient to cover all the
expenses to clear the ship. We much regret you have omitted mentioning
the sum you require, which prevents our remitting you the same by this
very post, thus causing a new delay in leaving that port, so contrary
to our wishes. You will therefore write to us to-morrow, that we may
receive your reply on Monday morning, informing us of the amount
necessary to finish paying all your accounts and expenses, to remit
you the same by Monday’s night post, in order that you may be able to
sail for Liverpool on Tuesday or Wednesday at the furthest. You must
not omit stating the amount required, and waiting your reply, we
remain, very truly.”
Mr. Serjeant _Bompas_. That is the directing him to go to Liverpool.
(_To_ Mr. _Thomas_.) On the 29th of August; have you a memorandum of the
notes you paid on that day?--Yes.
The numbers of the notes?--Yes I have.
Mr. _Kelly_. While we were discussing this point, my learned friend
called for something else, which I now produce; I do not know that your
Lordships decided it. I had objected to the entry in the banker’s book
being given in evidence against Mr. Zulueta, unless it was proved that
that entry was in some way or other made known to him.
Mr. Serjeant _Bompas_. I am going to show that certain notes were paid
to some person or other, and paid for this vessel; and these letters are
evidence to show that he was the owner of the vessel.
Mr. Justice _Wightman_. There is a certain document taken to the bank,
and notes paid for it.
Mr. _Kelly_. Then I object upon this ground. This is an indictment
against Pedro Zulueta. I have not the least objection, that where
documents are in existence, and members of the firm are connected with
them, that they should be called to explain them; but I do object to any
thing being given in evidence, done under the order of another person,
unless it is proved to have come home to the knowledge of the prisoner.
There is no proof that that entry ever came home to the prisoner, that
he ever saw the notes, or that it was by any order signed by him or
known to be his signature that these notes were paid, and therefore I
object to its being any evidence against him. One can suppose a case
like this. It is entirely unlike a mercantile transaction, where notice
to one is notice to all the firm. If an action was brought against any
one, a document affecting mercantile matters, the act of one partner is
the act of all; and where it is a civil action or liability, the act
done by the father would be evidence against the son, his partner, and
that, though the son was not in England at the time, but was in Spain,
and had no notice of the proceedings. Now let us try that: here is a
transaction respecting the payment of bank-notes, and if, because it is
supposed to be done by the house of Zulueta, it is evidence against this
particular member of the firm, without any proof that it was done by
him, it would be equally evidence against a member of the firm who was
in Spain during the whole of the time; and it might have pleased Sir
George Stephen to have selected him as a subject of prosecution; he
might have been indicted for equipping this vessel and the other acts
charged in the indictment; and if an act done by one member of the firm
is evidence against another, it would be evidence against him. I
apprehend that, supposing this payment of money to have any thing to do
with this transaction, which I apprehend does not appear, unless it is
proved it was done with the defendant’s knowledge or by his order, it is
no evidence against him; and no act done by another member of the firm
is any evidence against him. There is no proof that he saw these notes,
or gave any order; and under these circumstances, upon this criminal
charge, I submit it is not evidence against him.
Mr. Serjeant _Bompas_. I am aware of the necessity of the accuracy of
the evidence to convict a party on a criminal charge; but I apprehend
there is abundant evidence to establish that the notes given were the
notes paid for the purchase of the vessel. It is not a case where you
have no evidence of Mr. Zulueta having taken a share in the purchase of
the vessel; you have evidence of his control over the purchase in his
lending the money for the purchase, and that he interfered in the
purchase of the vessel. You have also a letter written by him to Captain
Jennings in respect of it, and I am going to show that Captain Jennings
was present when this sum was paid for the purchase. I am going to trace
it to two individuals, Bernardos and Jennings, and I am going to show
that these notes were for the purchase of this vessel, and that the
prisoner at the bar interferes with the vessel afterwards, as if he was
acting as interested in it. I have put in two letters, one from the
captain communicating to him as owner, giving an account of the
transactions, and asking upon whom he is to draw for the amount
required. The letter from Mr. Zulueta states that he will pay all the
disbursements; he regrets the captain did not give him the amount, and
requests him to go to the Salthouse Dock. In addition to the control
over the actual purchase, he states that the money was paid for the
purchase, he exercises a control over it, and directs the amount. Then
you have the previous letter of Captain Jennings, and you have in these
two letters a distinct act of ownership over the vessel, directing where
she is to go, and distinctly exercising dominion over her. The question
undoubtedly is, whether Captain Jennings was nominally appointed as
master, he not being substantially the owner, and whether Mr. Zulueta
did not from the beginning to the end transact the business of the
vessel. That is for the Jury. I show he exercised control over it, and I
show that this money was delivered to a person, and paid in purchase of
the vessel. I submit it is quite clear that I am entitled to show that
it was paid by these bankers.
Mr. Serjeant _Talfourd_. I submit that there is another ground on which
this evidence is admissible. Pedro Zulueta, the prisoner, has undertaken
to give an account of the transaction, and the account given in
substance in the evidence is this:--That his house was authorised by
Martinez & Co. to advance a certain sum out of the funds in their hands
for the purchase of this vessel; that that sum was lent in advance to
Captain Jennings by Martinez; that Captain Jennings became the
purchaser, and was _bonâ fide_ the owner of the vessel; that is not the
precise evidence, but the substance. We propose to show that that
account is not true; that the price of the vessel was not 500_l._; the
extent to which they were authorised to advance, but 650_l._ That that
650_l._ was a sum paid in some sort; that it is debited to the account
of Martinez & Co.; that that sum was advanced out of the funds at a time
when it was impossible that they could have had any communication with
Martinez & Co., at the Havannah, to advance beyond the sum of 500_l._,
which was stated to be the sum. Having taken that account, as given in
the evidence, we are entitled to show that, in giving this account, the
prisoner gave a false account as to a part of the transaction.
Mr. _Kelly_. If it is competent to my learned friend to give evidence of
the falsehood of any statement made before the Committee, I challenge
them to show the falsehood of any one statement made, with all the
facilities I have given them with the books and documents of the house.
But that is not the question: the question is, whether, because Mr.
Zulueta has given certain evidence before a Committee of the House of
Commons, in which he has stated his participation to a certain extent in
the transaction in question, and in which he has stated the general
effect of the transaction, any act done by any other member of the firm,
or any one connected with the house, is to be made evidence against him.
I apprehend, upon the plainest and clearest principles in the law of
evidence, it is not; and in order to illustrate my argument I will
merely put this case: Mr. Zulueta states, before the Committee of the
House of Commons, and truly states, that his house, for a house at
Cadiz, negotiated the purchase of this vessel, and the shipment of these
goods. As far as that statement goes, for better or worse, it is
evidence against him. But my learned friend says, therefore whatever was
done by any other member of the firm, as a part of the transaction, is
evidence against him. Let me suppose that the prisoner at the bar,
having, by a letter read in evidence, authorised the purchase of the
vessel; and, in addition to that, which is not yet in evidence, but may
be had, directed that his correspondents, in Liverpool should ship goods
for a certain place on board the vessel. Having been charged with the
knowledge of the secret object and destination of the vessel, suppose
his partner, unknown to him, had given some secret instructions to
disregard the charter-party--Whatever orders my son, or my house, may
have given you, take all these goods to the Gallinas, or any other slave
dealing port, and barter them for two hundred slaves--and yet, upon the
argument of my learned friend, that would be evidence here. My learned
friend says, the prisoner has admitted he negotiated the transaction;
and, therefore, any thing done by any member of the firm is evidence
against him; that any thing done by any member of the firm, or any thing
done by any body connected with the firm, would be a part of the
transaction. To say that any thing done, which may be a felonious act,
for aught I know, and though in relation to this transaction, not in my
knowledge, to make that evidence against him, would be to indict one man
for a felony committed by another, because he was a partner of that
other, and because that house was concerned in the transaction out of
which the felony arose.
(_The Judges conferred together._)
Mr. Justice _Maule_ (_to_ Mr. _Thomas_). I think you stated, that the
order upon which the money was paid on the 29th of August, was returned
to Zulueta & Co.?--Yes, it was.
When was it returned?--We have no particular periods; but when the
pass-book is called for, the vouchers are in the pocket of the book.
There was a pass-book between you and Zulueta & Co.?--Yes.
In that pass-book were all the payments entered?--Yes.
And this amongst the rest?--Yes; but I would not state whether it was a
draft, or a bill at twelve months date.
It would state the account upon which it was paid?--Yes.
And you would with that send back the draft or order upon which it was
paid?--Yes.
When was that done?--I cannot say when the book was called for: it might
be upon the following day, or in the course of a fortnight or so.
It would be in the course of a fortnight?--It might be so, I cannot say:
there are parties who do not call for their book in a year, or not at
all.
Zulueta & Co. do not call for their book for a year?--No, I do not say
that; they would have it frequently.
Did you return it with the vouchers in the pocket of the book?--Yes.
Did you do that frequently?--Yes.
When was the payment made?--The 29th of August, 1840.
You said the book was returned to them frequently?--Yes, I imagine so,
that they would call for it: they call for it, or send for it.
When it is called for, it is put into the hand of the caller, and sent
away?--Yes.
About how frequently?--It depends upon circumstances; some persons send
frequently.
Do, for God’s sake, put out of your mind all other customers of your
principals, but Messrs. Zulueta?--It is not my department, and I really
do not know how frequently they send.
I have taken it that they had it returned frequently?--I imagine so; I
think so.
That is, you think so, from knowing it?--No; from the general custom of
merchants of their standing.
What you do know is this: that the payment is entered in the book; that
the course is to return the book: whether it has ever been returned you
do not know?--No, I do not; of my own knowledge, I do not: I believe so.
I thought it might probably appear that Messrs. Zulueta & Co. had this
cheque.
Mr. Serjeant _Bompas_. Are either of your principals here?--I am not
aware of it.
Not in obedience to the subpœna?--I am not aware of it.
Mr. Justice _Maule_. You had better postpone it till to-morrow; you will
be able to get at it by that time?--It is not in my department.
Mr. Serjeant Bompas. What is the name of the person in whose department
it is?--In that of the receipt-clerks.
Give me the name?--Mr. Hayburn.
Mr. Justice _Maule_. As this extreme rigour of proof is insisted upon,
you may have twenty clerks?--I have no doubt that Messrs. Zulueta had
the book away frequently; but I do not know it myself.
Mr. Justice _Maule_. Suppose we had an earthquake every three years, one
would say that was frequently. If a man got a dinner only once a week,
one would not say that that was frequently. It depends upon what it
is?--I do not know how often it was.
Do you mean once in ten years, or what?--Almost daily.
Mr. Justice _Maule_. I think now, assuming that Mr. Kelly does not raise
any question as to the fact of the pass-book going back with the
vouchers, it being now taken that the draft whatever it was, or order,
upon which this money was paid, having been returned to Zulueta & Co.
before the notice to produce was given to the prisoner, that notice
naming the cheque or order mentioning the date and mentioning the sum,
and it containing the subsequent clause, “all other papers, &c.,
relating to this matter,” supposing instead of being a cheque or draft
it was an acceptance for a sum made payable at their bankers, the
subsequent part of the notice to produce is to be drawn in aid of the
previous part, and that taking the two parts together it amounts to a
reasonable notice to the prisoner to produce the paper, if in his power,
even if it was an acceptance and not a cheque or draft. Then the
question comes to this, whether the document here is admissible in
evidence against the prisoner. The prisoner is a member of the firm in
England, not absent in Spain as he might be, but he is in England
attending to this matter; and notice having been given by the bankers of
Messrs. Zulueta by the return of the vouchers that they had paid such a
sum of money upon such an account, that that amounts to a statement to
each of the partners of Zulueta & Co., and it is reasonable to suppose
that they were acquainted with the statement in the pass-book and that
document, and that they amount together to this, that it is the same as
if you could show this gentleman had said to Zulueta & Co., on such a
day I paid to such a person such an amount for your house: and we think
the witness may be interrogated as to the account upon which he paid
this money.
Mr. Serjeant _Bompas_. On whose account did you pay that
650_l._?--Zulueta & Co.
On what day?--On the 29th of August, 1840.
What were the numbers of the notes?--47,194, dated the 9th of March,
1840, 100_l._; 41,674, the same date and amount; 48,204, 9th March,
100_l._; 36,020, 25th of May, 1840, Liverpool Branch Bank of England,
100_l._; 46,243, 9th March, 100_l._; 38,288, 9th March, 1840, 100_l._;
1,364, 50_l._, August the 8th, 1840.
Mr. _Emanuel Emanuel_ sworn. Examined by Mr. Serjeant _Bompas_.