[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.
_Q._ Did you see him again that day at Mr. Donithorne's, and at what
hour in the day?
_A._ I did; I saw him again in the evening.
_Q._ At what time?
_A._ Between nine and ten--I mean between eight and nine.
_Q._ Did he stay any time then?
_A._ I believe he did; we were in the parlour, along with Mr. and Mrs.
Donithorne, and he came; and he (Mr. Donithorne) asked him to come in;
and he said, he would not come in to disturb good company.
_Q._ Are you sure he was the man?
_A._ I am sure he was the man.
_Q._ How near was he to you?
_A._ We got up, of course, when the gentleman was coming in, and we saw
the gentleman in the small parlour.
_Q._ What happened then, when you got up?
_A._ He went to speak with Mr. Donithorne, and they walked backwards
into the garden.
_Q._ Did you see them go out of the door that leads into the garden?
_A._ Yes, I saw them go backwards.
_Q._ You did not go to look after what they were doing?
_A._ No.
_Q._ Did you afterwards see them again, after they came from the back
part of the house?
_A._ No, I did not.
_Q._ You saw Mr. De Berenger no more?
_A._ No.
_Cross-examined by Mr. Bolland._
_Q._ How long has your husband had the affliction of deafness?
_A._ He has, at times.
_Q._ So we have seen to-day; you were indulging that morning in bed, as
well as your husband?
_A._ Yes.
_Q._ And Mrs. Donithorne came to wake you?
_A._ Yes.
_Q._ It was natural she should do it?
_A._ Yes.
_Q._ Mr. Donithorne did not wake you?
_A._ No.
_Q._ But Mrs. Donithorne came and waked you, and wished you to get up,
because somebody was coming to see the house?
_A._ Yes.
_Q._ Do you mean to say, that Mr. De Berenger afterwards went through
the house, so as to render that necessary.
_A._ He went up into the attics.
_Q._ Did he go into your room?
_A._ He did not.
_Q._ What occasion was there for your getting up to see him measure the
garden?
_A._ There was no occasion for that; but we were getting up, and she
thought the gentleman might come into our room.
_Q._ Was she in the habit of calling you?
_A._ Sometimes she has done it.
_Q._ Who was with Mr. De Berenger, besides Donithorne.
_A._ I do not remember seeing any other.
_Q._ Who carried the rod with which they measured; was it Mr. De
Berenger or Donithorne?
_A._ I cannot say, indeed.
_Q._ You may recollect who held the paper, and put down the
measurements; which of the two carried the paper, and which carried the
measuring rod?
_A._ I cannot tell which of the two it was, they being at the top of the
garden almost.
_Q._ It is only a small garden, we know the situation?
_A._ It is a long garden.
_Q._ Which of them was it?
_A._ I cannot say, indeed, which of them it was.
_Q._ But one of them did?
_A._ Yes.
_Q._ Was there snow on the ground then?
_A._ No, it was a wet morning, I think.
_Q._ Are you sure it was a wet morning?
_A._ I think it was a wet morning, but I did not take particular notice
of the day.
_Lord Ellenborough._ It had rained a good deal, had it?
_A._ Yes, it had.
_Q._ There was a good deal of rain last February, was there?
_A._ I think that was a wet morning.
_Mr. Bolland._ Had the effect of the rain been such, as to give them a
good view of the surface of the ground, so as to measure?
_A._ Yes, I think it had.
_Q._ The snow was melted?
_A._ I think it was.
_Q._ And you saw them lay the rule regularly, that they could take the
measurement properly?
_A._ Yes.
_Lord Ellenborough._ Did your husband fail, when he gave up the hatting
business?
_A._ Why, yes.
_Q._ There had been no commission of bankrupt against him?
_A._ No.
_Q._ And he gave up his business in that house, and you have been since
living at Mr. Donithorne's house?
_A._ Yes.
_Q._ How long has he been in the bail line?
_A._ In the bail line!
_Q._ How long has he been bail for people?
_A._ That is unknown to me, if he has.
_Q._ You have never known of people coming after him to be bail?
_A._ No, I have not.
_Q._ He has told us he has been bail for two persons; you know nothing
of that?
_A._ No.
_Q._ When did he fail?
_A._ On the 17th of February.
_Q._ Has there been an execution in the house you lived in since that?
_A._ No.
_Q._ Is Mr. Donithorne a creditor of your husband's; do you owe him
money?
_A._ No.
_Q._ Is he a relation?
_A._ Yes; he is a cousin.
_Lord Ellenborough._ How far is York-street, Westminster, from the
Asylum?
_Mr. Park._ I understand it is behind the barracks in Bird-cage Walk.
_Lord Ellenborough._ It is about a mile I should suppose then?
_Mr. Park._ From a mile to a mile and a half.
_Mr. Gurney._ Is Mr. Donithorne here?
_A._ I believe he is.
_Mr. Gurney._ Then I suppose we shall see him.
_Isaac Donithorne, sworn._
_Examined by Mr. Richardson._
_Q._ We understand you live in York-street, Westminster?
_A._ Yes.
_Q._ Do you remember Mr. Tragear coming to your house, after he had
given up his house in Queen-street?
_A._ Yes.
_Q._ Do you remember what day it was?
_A._ I believe it was Thursday; I am positive it was.
_Q._ What day of the month?
_A._ The 17th, I think, or the 18th of February.
_Q._ Are you well acquainted with the person of Mr. De Berenger?
_A._ Very well; I have been for some time.
_Q._ You are a cabinet-maker?
_A._ I am.
_Q._ Had Mr. De Berenger furnished you with designs for furniture at any
time?
_A._ Yes, he had.
_Q._ Do you or not remember seeing him on the Sunday after that time
when Tragear came?
_A._ Yes.
_Q._ That would be the 20th?
_A._ Yes.
_Q._ At what time in the day did you first see him?
_A._ Between nine and ten in the morning.
_Q._ For what purpose did he come?
_A._ To look over the grounds. I was going to make some alterations in
my little garden, and also about other work that I had in hand.
_Q._ What other work do you mean?
_A._ Work I had for Miss Johnstone, No. 18, Great Cumberland-street;
work I had in hand; I furnished all her house.
_Lord Ellenborough._ Mr. Cochrane Johnstone?
_A._ Yes.
_Mr. Richardson._ You were furnishing Mr. Johnstone's house at that
time?
_A._ A house for Miss Johnstone.
_Q._ Did you see him again in the course of that same day?
_A._ Between eight and nine in the evening.
_Q._ Did he call again at your house in York-street?
_A._ Yes.
_Q._ About what time was it?
_A._ It was between eight and nine; I did not take particular notice of
the time, not expecting there would be any question about it; we were
all sitting in the parlour, and Mr. De Berenger knocked at the door, and
I let him in, and he walked in, and while I was handing a chair to him
to sit down, he said I will not disturb your good company, and he said
he would walk into the back; and he did, and he staid about a quarter of
an hour or twenty minutes.
_Q._ Did you walk back together?
_A._ Only into the parlour; in the morning, we were, I dare say, an hour
together in the garden.
_Q._ Did you go into the garden in the evening?
_A._ We did not.
_Q._ What was the purpose of his calling in the evening?
_A._ Merely to answer the purpose of the morning, we meant to do
something in the garden; he said he would call if he came that way in
the evening, to tell me when he would draw a plan for the work I was
going to do in the garden; I was going to build a room there.
_Q._ He was to draw a plan?
_A._ Yes.
_Q._ In the evening he called about the same business?
_A._ Yes.
_Q._ Was any further answer to be given to him?
_A._ This was the business; I was going to turn the front part of my
house into an inn, and to make the back part of my house into pleasure
grounds.
_Q._ And you had consulted him about the mode of doing it?
_A._ Yes, I had; Mr. De Berenger told me he could make out a handsome
plan for me.
_Lord Ellenborough._ Did he tell you what you were to pay for it?
_A._ That house was not his, I pay £.60 a year for it.
_Q._ He did not tell you, that from £.200 to £.300 would not be
excessive for a good plan?
_A._ Not for that plan.
_Q._ What did you expect to pay for a good plan?
_A._ That depended upon what sort of plan it might be, they might make a
good plan worth that.
_Q._ You would not scruple paying that for a good plan?
_A._ I think I should for that for I had not the money to pay it.
_Q._ He put down the measurements in the morning?
_A._ Yes, he paced it over, but he told me he would come again and
measure it quite correct.
_Q._ He put down the figures?
_A._ I do not know precisely whether he did or not.
_Q._ He had his pencil?
_A._ Yes, and a ten-foot rod that he carried.
_Q._ Did he bring a ten-foot rod to walk with?
_A._ I have a ten-foot rod myself, as a cabinet maker, and Mr. De
Berenger paced it over.
_Q._ What sort of a morning was this?
_A._ A damp cold morning, a kind of misty rain; very cold.
_Mr. Richardson._ He said he would call at a subsequent time?
_A._ Yes, he did; here are all the designs.
_Q._ Those are the designs of furniture?
_A._ Those are the designs of furniture that I made for Miss Johnstone,
or the honourable Cochrane Johnstone, for furniture in Great Cumberland
Street; I believe I have some notes respecting them.
_Cross-examined by Mr. Adolphus._
_Q._ Mr. De Berenger came to you, as a friend of Mr. Cochrane Johnstone,
to give you plans for Mr. Cochrane Johnstone?
_A._ That was the case.
_Q._ He never gave you plans for any body else's furniture?
_A._ Never.
_Q._ You never employed a draftsman of his class to give you plans?
_A._ No, I made up two pieces of furniture from his plans, to go into a
library; that was the first thing.
_Q._ He came as a friend of Mr. Cochrane Johnstone's?
_A._ Yes, to look to the furniture.
_Q._ And then, out of friendship to you, knowing you had little
alteration to make, he proposed to assist you?
_A._ Yes; I first proposed the business, and Mr. De Berenger approved of
it.
_Q._ He was going to make a survey of the inside of your house that
morning; was he not?
_A._ He did of that also.
_Q._ Particularly your lodgers bed-room; he was very anxious to see
that?
_A._ And all my own.
_Q._ He was very anxious to see your lodgers bed-room?
_A._ Not that particularly.
_Q._ You went and knocked up Mr. Tragear?
_A._ Yes; I went up and desired them to rise, and to clear up their
room, for that he was coming there.
_Q._ Did you desire them to rise yourself?
_A._ Yes, there is not a doubt of it, for I went up stairs.
_Lord Ellenborough._ Will you take upon you, upon your oath, to say,
that you went into that bed-room out of which they had come?
_A._ Yes, twice over.
_Mr. Adolphus._ What is your christian name?
_A._ Isaac Donithorne.
_Q._ Do you know any thing about the Stock Exchange?
_A._ A little; something about it.
_Q._ Have you ever done business there?
_A._ Never in my life.
_Q._ Have you ever employed an attorney?
_A._ Yes.
_Q._ Who is your attorney?
_A._ That gentleman there.
_Q._ What is his name?
_A._ Mr. Tahourdin.
_Q._ In what particular business is Mr. Tahourdin your attorney?
_A._ By the desire of the honourable Cochrane Johnstone, who thinks
himself very ill used by a set of villains.----
_Q._ After all that preamble, as to Mr. Cochrane Johnstone's being ill
used by a set of villains, will you answer my question, what Mr.
Tahourdin is doing for you?
_A._ Issuing some writs.
_Q._ What have you desired him to do?
_A._ To issue some writs.
_Q._ How many?
_A._ A hundred and thirty-five.
_Lord Ellenborough._ A hundred and thirty-five writs, of what kind?
_Mr. Park._ Qui tam actions, and that was the reason I did not propose
calling him.
_Mr. Adolphus._ Are you to pay Mr. Tahourdin the costs of those actions,
or Mr. Cochrane Johnstone?
_A._ Mr. Cochrane Johnstone most undoubtedly, I should think.
_Mr. Park._ I really think that ought not to be asked.
_Lord Ellenborough._ If a man at my instance issues a hundred and
thirty-five writs, to be sure I must bear him harmless; how long has
your neighbour Tragear failed?
_A._ Why he never failed, to my knowledge; he left his shop publicly,
and came to my house.
_Q._ He does nothing in the bail way, by way of filling up his time,
does he?
_A._ I know nothing about his private concerns.
_Lord Ellenborough._ You take upon yourself to say, that you know he has
not failed; is not his wife likely to know, she has told us he did when
he came to your house. You may go about your business.
_A Juryman._ Are you a journeyman or a master?
_A._ I am a master in a small way, sometimes I keep three or four men.
_Lord Ellenborough._ Whom else do you call?
_Mr. Park._ No more, my Lord.
_Lord Ellenborough._ Do not you prove where De Berenger dined that day?
_Mr. Park._ No, I have no means of doing that.
_Mr. Gurney._ I beg to call Mr. Murray, to put one question to him, in
contradiction to Smith?
_Lord Ellenborough._ If that question occasions a reply that will throw
us into the night; if you think this case of alibi requires a serious
answer, you will of course give it; but I think you would disparage the
Jury by doing so.
_Mr. Gurney._ I will not call him, my Lord.
_Lord Ellenborough._ Do not let me supersede your discretion, if you
think there is any use in having your witness.
_Mr. Gurney._ No, my Lord, I am quite content with the case as it
stands.