Foreman of the Jury.We are quite satisfied of that.
Mr.Kelly. There is no doubt that where there are barracoons, there is slave dealing; but whether these individuals were slave dealers I do not know. Let that be proved in evidence.
Mr. SerjeantTalfourd. Did you fall in at any time with a vessel called the Golupchik?—Yes.
When was that?—I fell in with her several times, and chased her; and ultimately captured her in April 1839.
Under what colours was the Golupchik then sailing?—Russian.
Who was it had the command of her?—It was Thomas Bernardos.
Of what nation was the crew composed?—They were Spaniards principally; there might be a few Portuguese.
Was there any thing in the fitting up of that vessel, which enabled you to judge in what trade she was engaged?—She was fitted up for the slave trade.
Have you any doubt of it?—No.
What was the nature of the fittings up?—I have the report of the Mixed Commission Court, which would be the best evidence.
Mr.Kelly. No, it would not.
Mr. SerjeantTalfourd. What were the fittings up, which to your eyes indicated her as a slave vessel?—She had more water-casks than are necessary for an ordinary trading vessel.
What is the size of them?—They are large vessels; they are called leagers.
They are called leagers?—Yes; but any vessel may have a leager; but she had a larger quantity than any ordinary merchant vessel, and that is one of the articles prohibited to be used by our treaties with foreign powers.
What else did you observe?—She had a sliding caboose to hold a very large copper; that is another of the prohibited articles. She had also gratings covered over with temporary planks; and a few other trifling things, quite sufficient, according to our treaties with foreign powers, to authorise me to seize her as a vessel fully equipped for the slave trade, had she been under the Spanish flag. I seized her, believing her to be a Spanish vessel, though under the Russian flag.
The crew were principally Spaniards?—Yes; and it did not appear that she had been in a Russian port for two years.
What did you do with the vessel?—I sent her to Sierra Leone, and tried to prosecute her in the Mixed Commission Court as a Spanish vessel; but she was not received into that Court, being under the Russian flag, and with Russian papers. I afterwards determined to send her to England, that the Court of Admiralty might dispose of her, as I felt satisfied she could not be a Russian vessel.
Mr. JusticeMaule. You sent her to England to be condemned?—Yes, and before that I obtained fromBernardos—
Mr.Kelly. You are not asked what you obtained from Bernardos.
Mr. SerjeantTalfourd. Did Bernardos go in her?—Yes. I tried her a second time in the Mixed Commission Court.
We cannot enter into that. Did you afterwards see the same vessel again under another name?—Yes.
When was that?—In February 1841.
Where was she at the time?—Close to the Gallinas; at anchor at Gallinas: she anchored as I went on board.
Mr. JusticeMaule. Under what name?—The Augusta; and under the English flag.
Mr. SerjeantTalfourd. Are you quite certain it was the same vessel you had captured before?—Yes, quite certain.
Who did you find in command of the vessel at that time?—A man of the name of Jennings.
In consequence of any suspicions you entertained, did you makeapplication to him for the ship’s papers?—I asked for the ship’s papers directly I went onboard—
Mr.Kelly. I must object to any thing that passed between the witness and Captain Jennings; the fact I do not object to.
Mr. JusticeMaule. You do not object to the fact of his asking for and getting the papers?
Mr.Kelly. No; but it must be the fact alone. I never interpose when the Captain states facts.
Mr. JusticeMaule. Did you ask for the ship’spapers?—
Mr.Kelly. To that I have no objection, and I do not object to the question of my learned friend; but it is the only way I have of warning Captain Hill not to give us other people’s statements.
Mr. SerjeantTalfourd. Did you obtain the papers in the first instance?—Yes; on going on board it is my duty to demand them, and I received them on board.
Were there any other papers subsequently given to you by Jennings, or did you receive them all at once?—I received other papers afterwards; I received the ship’s papers in the first instance.
Mr.Kelly. Confine your answer to the question.
—It is necessary to explain.
Mr.Kelly. No, not at all.
Mr. SerjeantTalfourd. You received some papers in the first instance?—Yes; the vessel’s papers on demand. I had demanded them, and on being refused by Captain Jennings to answer a question which he was bound to answer to the commander of a British man-of-war, I insisted upon its being answered, and said I should detain the vessel till it was; and that question was to whom did thevessel—
Mr.Kelly. Here I must interpose; and unless Captain Hill is to be the sole judge of what is to be admissible evidence, I ask your Lordship to interpose, or to hear me and dispose of my objection. I cannot complain of my learned friend; he puts nothing but perfectly regular questions. Captain Jennings is not my client here.
Mr. JusticeMaule. You gave back the ship’s papers to Captain Jennings, and afterwards you insisted upon having these papers, or having some more?—I insisted upon having the question answered to whom the vessel was consigned.
Mr. SerjeantBompas. He has a right to ask that; that is a question which the captain is bound to demand of him, to whom he is consigned.
Mr.Kelly. I am quite well aware that in your Lordship’s hands I am quite safe; and if Captain Jennings had committed a murder on this occasion, it would not upon your Lordship’s minds produce any influence; but it is impossible to tell, knowing that Jennings was the captain of the vessel, and that the prisoner at the bar may have had some hand in the fitting it up, what influence it may have upon the minds of the Jury if we are to have conversations or recognitions, supposing there to have been any made by Captain Jennings; and all this done in the absence of Mr. Zulueta, who had no knowledge of it or control over it. If I at all understand it to be yourLordship’s impression, that any thing said or done by Captain Jennings is evidence, having made the objection I have nothing further to submit to your Lordships; but I do conceive, that nothing done by Captain Jennings long after the vessel sailed, and long after the offence, if any, was committed, is admissible. I do feel it my duty to ask, whether evidence is to be received of what was said and done by Captain Jennings months after the departure of the vessel from this country?
Mr. JusticeMaule. I do not entertain either of those two opinions. You do not put two cases which exhaust all other possible cases, but you say if I am of opinion that every thing said and done by Captain Jennings is evidence, you say no more; you say nothing. But I do not think that the thing is evidence, because Captain Jennings says it; nor do I think we can say, that nothing that Captain Jennings said can be evidence in the course of the trial. But with respect to what we have to decide, it is not whether there is such a large and general rule as that, but whether this question falls within any rule that excludes it. I think it does; I think what Captain Jennings said on that occasion is not admissible in evidence. If Captain Hill demands some other papers from him, that fact may be given in evidence.
Mr. SerjeantTalfourd. Did you afterwards receive some other papers from Captain Jennings on board?—Yes, I received a packet.
Mr. SerjeantTalfourd. Is the clerk here from the Court of Admiralty?
Mr.Kelly. I take for granted that the papers to be produced in Court are the papers given to this gentleman by Captain Jennings.
Mr. SerjeantBompas. Yes, they have been produced before; we shall want them in a moment.
Mr. SerjeantTalfourd. What steps did you take upon receiving these papers?—I took the papers on board my own vessel on purpose to read them. It was towards the close of the evening I received them, and I sent an order on board the Saracen that an officer and a certain number of men should be sent to me, and I entrusted that officer with the charge of the vessel.
Did you, in consequence of the view you took afterwards, detain the vessel?—Yes, I detained the vessel.
She was afterwards taken, I believe, to Sierra Leone?—Yes.
Did you prosecute herthere?—
Mr.Kelly. I must object to allthis—
Mr. SerjeantTalfourd. I thought that that might be taken as a fact; the evidence of Mr. Zulueta before the Committee is in evidence; and there it is stated that the vessel was condemned, because Captain Jennings had no funds to defend her: I thought I might take that as a fact.
Mr.Kelly. No, nothing of the kind; I object to any evidence of the proceedings in Sierra Leone respecting this vessel. Mr. Zulueta, as it appears by what is in evidence, namely, his own statement before the Committee of the House of Commons, was the agent of Messrs. Martinez & Co. for the purchase of this vessel, and afterwards the shipment of the goods, but was no party at all to any proceeding,judicial or otherwise, which took place in Sierra Leone. Now judicial proceedings, in which there is a judicial sentence, are no doubt evidence, and may be very important evidence against the parties to those proceedings; but I apprehend as that was a proceeding to which Mr. Zulueta was no party, they are not evidence against him here.
Mr. SerjeantTalfourd. We need not argue that; I only put the question in order to trace the vessel.
Mr. JusticeMaule. At present he says the vessel was sent to Sierra Leone; that was all, I believe?
Mr.Kelly. No, he was going on to talk about the proceedings in Sierra Leone.
Mr. SerjeantTalfourd. There were some proceedings there?—She was condemned in the Vice-Admiralty Court there.
Was she sent to England afterwards?—I have seen nothing of her since.
Though you were for some two or three years cruizing upon the coast of Africa, it was not till November 1840 you landed at Gallinas—I landed upon the island there for half an hour previous to that time.
With that exception, I believe you had not landed there before that?—No.
You have spoken of slave establishments; are there not villages or towns, whatever names are given to them up the river?—It is necessary tomention—
You will greatly oblige me if you will answer the question. Is it the fact, that there are several towns and villages up the river?—It is necessary for me to explain. If you know nothing of the river Gallinas that question may imply more than I can answer. The river Gallinas extends some distance into the interior as I believe: I have been up it ten or a dozen miles, and I know that there is the native village of Mera, another of Tardia, and another of Tinda.
That is exactly what I am asking.
Mr. JusticeMaule. It is a very harmless statement.
Mr.Kelly. I was going to ask him how far he had gone up the river?—At least twelve miles.
As far as you have gone, there were towns?—There were villages.
Was the river navigable further up?—Do you mean further than I went?
Yes.—I cannot say; I should think not from the appearance of it, except by canoes.
It is navigable for canoes, so that the population of the place can pass further up?—I cannot say.
Did you ever see canoes higher up?—I could not see them.
If you were ten miles up, you can say if you saw canoes beyond that distance?—I did not see any. I think from the appearance of the river as high as I went, it is navigable for canoes; but I never saw any there.
You were upon this coast for the protection of British commerce and the prevention of the slave trade?—Yes.
Did not that British commerce consist among other things of the exportation of the merchandise of Britain to various places on the coast of Africa?—Certainly.
Do you not know that British merchandises, sometimes in British vessels, and at other times in other vessels, were exported to a very considerable extent to various parts of the coast of Africa?—Certainly, I do.
Now with respect to the Gallinas, do I understand you to say that no British merchandises were exported there, except for the purposes of the slave trade?—Any British merchandise exported there from the Gallinas?
No, I said imported into the Gallinas.—That question was not asked me.
Do you not know that British merchandise to a considerable extent was from time to time exported to the Gallinas in a lawful manner?—I have known English vessels arrive at the Gallinas and part with a little of their cargo; but I never knew an instance before the Augusta of a vessel arriving at the Gallinas consigned to deliver her cargo there.
I ask you, whether you have known of various British vessels, containing British merchandise, arriving there for a lawful purpose?—I have known one or two English vessels dispose of a part of their cargoes there; but I doubt its being for a legal purpose, because I am satisfied there is no export from the Gallinas but slaves, and therefore I do not think it could be lawful.
You say you have known them land part of their cargo there?—I have known them sell part of it.
And you gave as your reason for doubting whether it was for a lawful purpose, because you are not aware of any merchandise that is exported from there in return?—I said I should doubt whether it was lawful, because there was no produce in exchange for it.
Have you never known an instance of ivory and palm-oil being exported from Gallinas?—Never, and I believe it never was during the time I was there.
I am asking your experience; I will come to your belief presently. You say you doubt whether British merchandise has ever been landed there for lawful purposes; is that so?—I have given my reason for doubting it.
Is it so, that you doubt whether it was ever landed for any purpose?—I am speaking of the time I was there.
I am asking you about your own experience; of course that must be while you were there. You say you have never known any British produce landed that you did not doubt the legality of its purpose; is that so?—Yes; because there was no produce to be lawful given in exchange; no produce that I met with.
Allow me to ask you, was there any thing illegal in the landing of British produce for the use of the native chiefs, or the inhabitants of those towns and villages you speak of?—You are asking me my opinion?
Yes; you say you doubt the legality ofit?—
Mr. JusticeMaule. That is a question of law.
—That is a question I cannot presume to answer.
Mr.Kelly. As the gentleman has given me his doubts, I wished to know the reason for them.—I have seized this vessel, because I conceived her freight to be illegal.
Do you remember a vessel called the Gil Blas?—I have seen her.
Did she not land goods at the Gallinas?—Yes: if she is the vessel I mean, she was commanded by a man of the name of Serjeant, and he landed some goods there; he gave me to understand so.
Was the Gil Blas there at the time your vessel was there?—Yes.
And you did not think it necessary to seize the Gil Blas?—No.
Do you know for whom any goods were landed?—I am only speaking from what I understood from him when I learned it. I do not know to whom he delivered them; but he gave me to understand he sold them to Pedro Blanco; but I was not present. I am only speaking to my belief.
Did this man, about that time, make you any present?—Serjeant brought out from Pedro Blanco a dozen fowls and a sheep for me, which I was very glad of. I had never seen Pedro Blanco in my life. I had had no fresh provisions for some time, and I was very glad to accept the fowls and the sheep, which he told me had come from Marseilles in a vessel which had taken some slaves. The sheep I gave to the Judge of the Mixed Commission Court.
How long was the Gil Blas off there?—I do not know, perhaps a day.
Tell me the name of any other vessel that was out there landing goods, which you did not seize?—I do not remember any.
Were you there at the time the Star was there?—I do not remember the name. I do not recollect seeing her. I am sorry I have not the boarding-book here, or I could tell you.
Do you remember the Laburnum?—No.
The Milford?—No.
Do you not know that the Milford landed a large quantity of goods at the Gallinas?—Not to my knowledge.
Or the Sublime?—Not that I know of.
How long were you so near to the river Gallinas, or within it, as to be able to know from your own observation what quantity of goods, if any, was landed?—My cruizing ground was extensive. I was a good deal at the Gallinas, because it was a notorious slave place, but I had many other places to visit.
You are not answering my question. I ask you how long you were within the river, or within sight of it, so as to know what quantity of goods were landed?—It was part of my cruizing ground; sometimes I would be there for two or three days at anchor, then I would be away a month or two, and then back again for two or three months; sometimes I was continually there.
Can you give me any idea of the population upon these banks of the river with which you were acquainted? You say you went twelve miles up; what was the extent of the whole population?—I can only answer from guess. I should say, at Tiendo, the populationmight be eight or nine hundred; at Tardia, one or two hundred; at Mena, seven or eight hundred. There is another native town, which I do not know the name of, further down the river; but it is not thickly populated by any means.
You say you were stationed upon the coast of Africa for the protection of British commerce: as far as your experience goes, was not that British commerce to the coast of Africa exceedingly serviceable to the natives?—That depends upon what way it is employed. If it is to be employed in the slave trade, it is doubtful whether it is serviceable.
I am not asking you a speculative question of that description: you were there for the protection of British commerce, and it is a plain question. I ask you, in your judgment, founded upon your experience, was British commerce serviceable to the natives upon the coast of Africa?—Are you taking the whole of the coast of Africa, or confining it to the Gallinas?
I am confining it to the parts you are acquainted with?—That was all the coast of Africa, from Portendique round to Madagascar; if you are taking in all that, undoubtedly British commerce must be a great benefit to Africa.
Let me ask you another question, and that I may not take you by surprise, I may tell you that I am taking it from the book in which you gave your evidence; I ask you, from your experience upon the coast of Africa, whether, in many places, a lawful trade was not carried on to a considerable extent by some persons, who likewise carried on the slave trade?—By the same persons, or in the same places?
I say the same persons?—I have not seen the persons trading, and I cannot tell.
Though you have not seen them trading, you may be able to answer the question?—I do not hesitate in telling you, that in many places on the coast of Africa, the same trade was carried on both for slaves and in exchange for the produce of the country, but at the Gallinas I do not think there was any trade of that kind.
In many places, the same trade was carried on in the lawful trade and the slave trade by the same persons?—Yes; lam speaking of hearsay; but I am as confident it was not so at the Gallinas, as one can be confident from having been at the place.
The experience which leads you to think it has not been so at Gallinas is from your own knowledge, being on the spot?—I have already stated I have been a great deal there, and during that time I saw no other trade, nor the sign of any other trade, than the slave trade.
We are here dealing with a gentleman who was never at the Gallinas, and I am asking you a question founded upon your experience: you say you believe no lawful trade was carried on there, as there was at other places; I ask you, whether the knowledge you have acquired, which leads you to suppose that European trade was carried on, was derived from your own knowledge of the persons?—Yes.
Allow me to ask you, are the officers of the navy in your owndistinguished situation entitled to share in the value of the vessels which they seize, and which happily for them are condemned?—Yes they are; certainly.
To what extent: suppose you were to seize a vessel and cargo of the value of 10,000l., what would be your own share?—I should imagine the vessel inquestion—
I want to know, if you seize a ship and cargo of the value of 10,000l., 5000l.each, what is the share, if that vessel is condemned for being engaged in the slave trade, that the commanding officer seizing it is entitled to?—You must tell me the port she is to be condemned in; it makes a considerable difference; if it is in the Mixed Commission Court, that makes a very considerable difference, or if it is in the Vice-Admiralty Court.
Take it as being condemned in the Vice-Admiralty Court?—Half the proceeds go to the Crown, and the other half to the captors, after all the expenses are paid.
You say half goes to the Crown, if condemned in the Vice-Admiralty Court?—Thisvessel—
I am not asking you about any particular vessel.—It depends upon the different Acts under which she is condemned.
Forget for a moment this vessel the Augusta, if you can, and suppose a vessel under British colours is seized in the African seas by an officer in your own situation, and is condemned in the English Vice-Admiralty Court for a breach of the English law, how is the value divided?—Half goes to the Crown, and the other half, after the expenses are paid, is divided amongst the captors; the admiral gets one-sixteenth, and the captain one-eighth of the remainder.
Suppose she is condemned by the Mixed Commission Court?—I believe it is nearly the same in the Mixed Commission Court; but half goes to the nation under whose flag she is sailing.
The Mixed Commission Court is a court composed of commissioners of two nations, or various nations, and who have to determine the cases of foreign vessels not British, Spanish for instance?—Yes; I think that is the division after the nation under whose flag she is sailing; but under the Act that was passed authorising us to seize Portuguese vessels, and to prosecute them in the Vice-Admiralty Court, I do not know how the proceeds were divided.
It is a Mixed Commission Court which decides upon the Spanish or Portuguese ships; and the British Vice-Admiralty Court decide upon a vessel under the British flag?—Yes.
Are not Spanish vessels prohibited from being navigated by British captains? Did you ever see a vessel under the Spanish flag navigated by a British captain?—I never recollect seeing one.
Now, as to the vessel in question, the Augusta; you say when she bore the name of the Gollupchik, she was in every respect fitted up for the slave trade?—Not in every respect; I do not think she had a slave-deck laid.
I correct myself: she was in many respects fitted up for the slave trade?—Yes.
And that led you to seize her?—Yes.
When she came to England, and was claimed by the Russian authorities,do you know whether they succeeded in their claim?—I know nothing of her; I sent her to England.
You do not know whether she remained in English hands, or was delivered up to the Russian government?—I was on the coast of Africa at the time. I have received nothing from the Vice-Admiralty Court in respect of her.
To a certain extent, to the extent to which you have described her, she was, when you seized her under Russian colours, fitted up for a slave vessel?—Yes.
When she bore her name of the Augusta, and was in the hands of Captain Jennings, was she then fitted up for the slave trade?—Not in my opinion; and I did not seize her for that, but for her freight: at least I saw nothing; I do not know what might be under her cargo.
I did not ask you what you did not see; it is the very thing I have been objecting to a hundred times over: I ask you what you did see. You have said two or three times that you were three years upon this coast; to what extent of coast did your cruizing extend?—From December, 1838, until April or May, 1841. The Gallinas was within my station in the first instance. I had charge of the station under Admiral Palmer. Then there was another officer appointed.
I do not wish to go into the whole history of your service; but have the goodness to confine yourself to the question: over what extent of coast did the whole performance of your duties extend?—It depended upon the nature of the orders I received.
Was it altogether 1,000 miles of coast or 500 miles, from 1837, when you began, till 1841? Was the whole extent of coast, over which at various periods your service extended, 1,000 miles?—From October, 1837, till December, 1838, I was on the coast at different periods from Sierra Leone as far as Madagascar: but from December, 1838, until I left the coast of Africa in June, 1841, I was confined to the coast between Cape Palmas, Portendique, and the Cape de Verd Islands: from December, 1838, till June,1841—
What extent of coast isthat?—
Mr. JusticeMaule. How many degrees of latitude is it?
—It is about 1,000 miles I should say.
Mr.Kelly. During that period you acquired some experience, I presume, in the nature of the British commerce carried on upon the coast of Africa: let me ask you, whether the sort of articles of British commerce, exported to Africa during that period, were not gunpowder, muskets, tobacco, brandy, and cotton goods?—Oh, yes.
And iron articles?—I do not think it is possible to distinguish the articles intended for the slave trade, from the articles intended for legal commerce.
Mr. JusticeMaule. The articles sent in both instances are welcome to the African consumers?—Yes; I am speaking of the West Coast of Africa; I cannot speak to other parts of the coast; I do not think it is possible to distinguish them.
What people want in Africa is determined by that which they receive, and whether they pay for it in coin or in produce only, the same thing would be welcome?—Yes.
Mr. JusticeMaule. Just as if you were to ask, why do people give bank notes in England for guineas or sovereigns: it is just what they want.
Mr.Kelly. With regard to these articles you have mentioned, when exported to various parts of Africa, is the return made sometimes in doubloons or money, and sometimes in ivory, dye-wood, palm oil, and other commodities produced there?—If you will let me answer the question in my own way, I can do it more satisfactorily. Where goods are landed, and doubloons are obtained in exchange, the doubloons come from the Spaniards, and I never knew a Spaniard engaged in any trade upon the coast of Africa but the slave trade: when you get produce in exchange, it is more likely you get that from the natives.
Do you mean to say, that the Spaniards who trade upon the coast of Africa do not give produce for the merchandise that goes there; I am not speaking merely of the Gallinas?—I think I know of but one, and I do not know whether he is a Spaniard or not. I can mention his name, it is Carrote; I think he exported palm oil as well as slaves; but he told me he was an agent to Pedro Blanco.
Do not tell us what he told you: what I ask you is, whether a return is not sometimes made in ivory and palm oil, and dye-woods?—The question calls for an answer which I cannot give in a satisfactory manner.
You do not do justice to your own understanding.—I wish to give you every information.
You never saw any of the house of Zulueta & Co. in the course of your travels on the coast of Africa?—Never to the best of my recollection.
Do you know any of them?—No: I saw Mr. Zulueta before the Committee of the Privy Council for the first time.
You have been asked if you saw any slave fittings when you seized the Augusta; did you take up any of the cargo?—No, I did not; I went into the hold.
Do you know whether the slave fittings were what could be taken to pieces and stowed away?—The hatches were grated when I first seized her. When I seized her the second time she had new hatches and no gratings at all. I saw nothing to induce me to believe she had slave fittings when I seized her as the Augusta, though I had heard that.
Mr. JusticeMaule. The learned Serjeant is asking you not what you heard, but what you looked for; you searched to see if there were slave fittings?—Yes; so far as going down into the hold. I did not disturb the cargo; I do not know what was in her.
You did not find any leagers?—No.
Are you able to say whether she was or was not fitted for the slave trade?—If she was equipped for it I should have seized her at once; but she was not.
You saw enough of her to see that she was not equipped for theslave trade?—Certainly; she had not slave equipments, leagers, hatches with open gratings, or irons, or coppers, or any of those things.
Mr. SerjeantTalfourd. How long were you on board the vessel?—The first day a couple of hours, and the next day about the same time. I was on board her three or four times.
Can they get the equipments after they come into port when they discharge their cargo?—Yes, in many places they can; I can give you an instance of an Americanvessel—
Can the fittings be obtained there after the discharge of a vessel like theAugusta?—
Mr.Kelly. Where?
Mr. SerjeantTalfourd. At the place where the cargo is discharged.—The only way in which I can answer that question is this; if an agent at Gallinas expects a slave vessel to come out without equipments, he may take care to procure them from other vessels, and may have them perfectly ready: I can give an instance ofthat—
Mr.Kelly. Never mind that.
Mr. SerjeantTalfourd. How long would it take to put on board slave equipments in a vessel of the size of the Augusta?—A very short time: they may send out the water-casks filled with water in two or three canoes; and if they do not choose to lay down a slave deck, they put mats upon the casks, and it is done in a very short time. They may embark 500 slaves in a couple of hours or upwards and be off.
Foreman of the Jury.One of my brother jurors wishes to ask this question of the witness through your Lordship: when he went on board the Augusta, whether he found any thing on board her to warrant her being supposed to be fitted out as a slave vessel?
Mr. JusticeMaule. He says he did not; that has been pursued for some time; and now in answer to questions put to him, the gentleman was saying, though she was not fitted out in that way, that her goods might be landed, and slaves might be put on board, in a few hours.—I cansay—
Mr.Kelly. I object to these speeches: I object to this gentleman, who thinks because he has seized this vessel that if any thing falls from the Jury, or from one of her Majesty’s judges, that he may begin making a speech. There has been a great deal said that is not evidence: that every body must feel; but it is impossible to stop him, although a gentleman as respectable as himself is under trial.
Mr. SerjeantTalfourd. You have been asked about the share which the captain has in the capture of a vessel of this description; do you accurately know what share you would have under the circumstances?—Yes; what I have stated is the share: half the proceeds go to the Crown, and after the admiral has had his share, the remaining half is divided.
What would be your share of this vessel the Augusta?—I believe the proceeds amounted to about 3,800l.; one-half goes to the Crown, and there are the expenses of the appeal to the Judicial Committee of the Privy Council, which are not paid.
Have you got any thing?—No, not a sixpence.
Do the expenses swallowup?—
Mr. JusticeMaule. 1,900l.is the half; the captain gets one-eighth of fifteen-sixteenths?—There are several hundred pounds to come out of it for the Privy Council appeal, that has not been paidyet.—
Mr.Clarkson. You must not say any thing, unless you are asked a question.
Mr.Kelly. I shall let him talk on till he is tired after what I have said.
Do you come from the Admiralty Court?—Yes.
Do you produce any documents?—Yes, I do.
Mr. SerjeantTalfourd. The first document we want is the letter of the 20th August, 1840, from Zulueta & Co. to Captain Jennings?—Will you allow me to hand you a schedule of the different documents; they are numbered according to that. (The Witness handed in the same.)
Mr.Payne. Nos. 14 and 17 are what we want. (The Witness handed in two papers; one being a letter, dated 20th August, 1840.)
Mr. SerjeantTalfourd(toCaptainHill.) Look at this letter and see if it is one of the letters you found on board the Augusta? (handing the same to the Witness.)—Yes, that is one; there is my handwriting upon it.
(ToCaptainHill.) Look at this also (handing another paper to him), the signature appears to be cut off, and say if it is in the same state as when you found it?—Yes, it is in the same state as when I found it on board the Augusta; the signature was then cut out.
Mr. SerjeantTalfourd(toMr.Brown.) Now produce the charter-party, Nos. 11 and 12. (The Witness produced the same.)
(ToCaptainHill.) Just look at these two papers (handing them to the Witness), and see if they are two of the papers which were found on board?—Yes, they are.
Mr.Kelly(toCaptainHill.) You have looked at these three or four papers, and you say they are the papers you found on board the vessel?—They are papers given to me by the master: I did not find them by searching.
Were they given to you on board the vessel?—Yes, by the master.
Did you put any mark upon them?—Yes, you will see a mark on the back; that is what I looked at in the first instance when they were handed to me.
Is this it? (pointing to a mark on the paper.)—It is a pretty large number upon the paper: that is my handwriting.
Will you look at this letter, and tell me if you know the handwriting of the postscript at the end? (handing a paper to the Witness.)
Mr.Kelly. What is the date of it?—24th of September, 1840.
Mr.Payne. Whose handwriting is that postscript?—I presume it to be Mr. Zulueta’s.
Do you believe it to be?—Yes.
Mr.Kelly. Which of them?—The father.
Mr.Payne. Do you believe it to be his writing?—Yes.
Mr. JusticeMaule. You say the father; is that the prisoner?
Mr. SerjeantBompas. No, the father of the prisoner.
Mr.Payne. Look at that (handing another paper to the Witness), and tell me if you know the handwriting; that is, the 20th of August?—It looks like the handwriting of Zulueta the son.
Mr. JusticeMaule. What is the date?
Mr.Payne. The 20th of August, 1840. Just look at this memorandum on the charter-party; look at the signature to that charter-party: do you know the handwriting of that document?—I suppose that one to be the signature of Mr. Zulueta the son.
Do you believe it to be so?—Yes; the other I do not know.
(The Letters and the Charter-party were handed in.)
Mr.Payne. Do you know the handwriting of the body of that first letter of which I showed you the postscript?—I did not pay sufficient attention to it. With your leave I will look again. (It was again handed to the Witness.) I do not know it.
I believe you are the notary to the Spanish consul in this city?—I am.
Have you known the house of Zulueta for any length of time?—For some years.
During that time has the prisoner Pedro de Zulueta, like the rest of his firm, maintained a high character for integrity and propriety of conduct?—The highest, the very highest character; and unimpeachable to the best of my knowledge.
To the best of your knowledge, from their character and the character of their dealings, do you believe them to be wilfully capable of violating thelaw?—
Mr. SerjeantBompas. No, I object to that question.
Mr.Kelly. Has their character been that of violators of the law, or the reverse?—As far as my knowledge goes, I should say that it was perfectly impossible that the house of Zulueta & Co. should be violators of the law.
Have you ever had any transactions in business with that house?—Yes.
Do you know that they act as agents for various houses in Spain, the Havannah, and other places?—Yes.
Do you know that they have for a great many years carried on business to a great extent indeed?—Yes, I do.
Perhaps you may happen to know that vessels under the Spanish flag cannot be commanded by Englishcaptains?—
Mr.Payne. Do you know any thing about it?
Mr.Kelly. Do you know that?—My impression is, that that is the case.
How long have you been a notary?—I have been admitted about twenty years.
Are you a native of Spain?—A native of this country.
Where did you acquire your knowledge of the Spanish language?—In this country.
Have you had a good deal to do with the commercial and maritime affairs of Spain?—Yes, very largely; my connexion is almost exclusively Spanish.
In your experience, have you ever known a Spanish vessel, or a vessel under the Spanish flag, commanded by an English captain?—Never.
Who are the partners in the firm of Zulueta, do you know?—The father Don Pedro Antonio Zulueta, and the son Don Pedro Gonzalez Zulueta. I do not know that I can go any further; I do not know that there is another partner.
Mr.Kelly. There is another son Moriarte?—I do not know that he is a partner; I believe he is.
Mr. SerjeantBompas. Besides being a notary, do you carry on the business of a merchant at all?—No, not in the least.
How do you become possessed with your knowledge?—In my notarial capacity I have often had to prepare bills of sale of ships, and various documents connected with shipping, and that is the only way I obtain my information.
Mr. SerjeantBompas. We will read these documents; the one signed by the prisoner at the bar first of all.
Mr.Kelly. Take them one at a time; they stand under very different circumstances. Let me look at it. (It was handed to Mr. Kelly.)
The same was then read, dated London, the 20th of August, 1840, signed “Zulueta &. Co.,” and directed “Captain Jennings,” Portsmouth.
“Sir,—In reply to your favour of yesterday, we have to say that we cannot exceed 500l.for the vessel in question, such as described in your letter, namely, that excepting the sails, the other differences are trifling from the inventory. If you cannot therefore succeed at those limits, we must give up the purchase, and you will please act accordingly.”
Mr. SerjeantBompas. We propose now to read the one in which there is a postscript from the father.
Mr.Kelly. I feel that this letter is no evidence against the prisoner at the bar. It is a letter written in a handwriting not proved; the signature does not appear at all; but the postscript was in the handwriting of the prisoner’s father. I need hardly say that that is no evidence against the prisoner; but I have not the slightest objection to their reading it. I only add these few words, that because I consent to this being read, it is not to be taken that other documents,if there are any others under different circumstances, are admitted.
The following Letter wasread:—
[“London, 26th September, 1840,” the signature cut off, addressed Captain Thomas Jennings, Portsmouth.
“Dear Sir,—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 maybe 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, dear Sir, your obedient servants.”
Postscript. “According our Liverpool house notice, you will go there to the Salt-house Dock.”
Mr. SerjeantBompas. Now put in the charter-party, and the paper referred to in it.
Mr.Kelly. Put in one at a time; you cannot read two documents at a time.
[The same was handed in, dated London, 19th October, 1840, signed Thomas Jennings; for Pedro Martinez & Co., of Havannah, Zulueta & Company.
Mr.Kelly. All these documents appear in the printed Appendix, which it would be convenient to hand up to your Lordship.
Mr. JusticeMaule. Is that the joint Appendix on the appeal to the Privy Council?
Mr.Kelly. Yes.
Mr.Clarkson. The number of the document is 11, on page 5.
The same was read asfollows:—
“It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez & Co., of Havannah, merchants: that the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed load from the factors of the said Messrs. Pedro Martinez & Co. a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get and deliver the same; after which shemay be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage, always excepted.) The freight to be paid on unloading and right delivery of the cargo, at the rate of 100l.sterling per calendar month that the ship may be so employed, commencing with this present month; all port charges and pilotages being paid by the charterers; and days on demurrage, over and above the said laying days, at pounds per day. Penalty for non-performance of this agreement 500l.The necessary cash for ship’s disbursements to be furnished to the captain free of commission: the charterers to be at liberty of closing this engagement at the end of any voyage performed under it, on settling the freight due to the vessel; the captain being indebted to the charterers in certain sums, as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sums, and in any settlement for such freights, the said advances to be deducted from the vessel’s earnings.”
Mr. SerjeantBompas. The next document is theacknowledgment—
Mr.Kelly. I do not understand how this addition to the charter-party is evidence.
Mr. JusticeMaule. It is at the top of page 6?
Mr.Kelly. It is a memorandum: you propose to read this?
Mr. SerjeantBompas. Yes.
Mr.Kelly. I do not see the importance of it; but I do not see how it is evidence.
Mr. JusticeMaule. 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. JusticeMaule. 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, acknowledgedelsewhere, 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. SerjeantBompas. 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.
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.
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 wasabout—
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.
Was that yesterday? Does your recollection enable you tosay?—
Mr. JusticeMaule. It was either yesterday, or yesterday twelve months, or two years ago?—It was the 26th of October, 1843.
Mr.Kelly. Will you tell me at what hour you served it?—Upon whom?
Upon either Messrs. Lawford & Co. or Messrs. Zulueta. First, did you serve it upon either? Leave out Captain Jennings. Did you serve a copy of that paper, signed and dated, upon either Mr. Zulueta or Messrs. Lawford?—No; I did not.
You only served it upon Captain Jennings?—Yes; that is all.
Mr. JusticeMaule. As far as the signed paper goes, there was no service upon Mr. Zulueta?
Mr.Kelly. No.
Mr. JusticeMaule. He did serve something upon them which was not signed.
Mr.Clarkson. Nor dated.
Mr. JusticeMaule. Let us look at it; it may be a very good notice, though not signed. (It was handed to his Lordship).
Mr.Kelly. I am not going to raise any objection to it; but I shall make some observations upon it.
Mr. SerjeantBompas. The name was in the instrument, though it was not signed by Sir George Stephen?—Yes.
Mr.Kelly. Was that so?—Yes.
When did you serve a copy besides that?—I served a second copy of it at the general office of Zulueta & Co., and you will find the words “General Office,” written upon it.
Mr.Kelly. Now just refer to your notice, to produce any document you propose to call for?
Mr. SerjeantBompas. When you say you left it without date and signature, was it served in this way, the blank day of blank, with Sir George Stephen’s name upon the back of it?—Yes.
Mr. JusticeMaule. The non-signature of a notice to produce is not worth inquiry; a dot to ani, or a cross to at, would be equally available.
Mr.Kelly. It is my learned friend who renews the subject. I ask him to point out the document.
(The Notice to produce was read, specifying among other documents, the additional memorandum of Charter-party, &c.)
Mr.Kelly. I have no such document. I do not know of its existence.
Mr. JusticeMaule. You call for the document referred to at the end of the memorandum of charter-party?
Mr. SerjeantBompas. Yes.
Mr.Kelly. No, my Lord, they call for it by a particular description; it may be that document; but according to that description, as far as I know or am instructed, we have not got it. The document referred to in the terms of the charter-party is supposed to be an acknowledgment of the debt from Captain Jennings to Martinez and Co.; that might be in the possession of Messrs.Zulueta—
Mr. JusticeMaule. It would be in the possession of Zulueta & Co., or Martinez & Co.?
Mr.Kelly. Yes, my Lord; if in the possession of Martinez, of course I have not got it.
Mr. JusticeMaule. You call for the additional memorandum of charter-party of the 21st of October 1840?
Mr. SerjeantBompas. Yes, or the 19th of October.
Are you a clerk in the bank of Messrs. Glyn, Mills, & Co.?—Yes.
Are they the bankers of the prisoner Mr. Zulueta?—Yes, they are.
Did you pay any sum of money of 650l.for him upon his account, in August 1840? (The Witness referred to a book).—On the 29th of August.
Was there a cheque?—A cheque or bill; I cannot say which.
Mr.Kelly. I presume that is kept by yourself, and in your handwriting?—Yes.
Mr. SerjeantBompas. You return the cheques?—Yes, we do.
Mr. SerjeantBompas. We have given them notice to produce any cheque of that date.
Mr.Kelly. Now, what is it you call for?
Mr. SerjeantBompas. For that cheque for 650l.
Mr.Kelly. Does it purport to be a cheque signed by the defendant?—I cannot tell that, it might be a bill made payable upon our house on their account.
Mr.Kelly. I am quite prepared to produce any document in the handwriting of the prisoner at the bar, which is in his possession; but as to any document that may bear the signature, or be in the handwriting of any other member of the firm, that I shall not produce unless that member of the firm is made a witness to show the circumstances accompanying the document; unless it passed through the hands of the prisoner. If you prove any cheque in the handwriting of the prisoner, I will produce it if I have it, and if not, I shall not object to secondary evidence of it.
Mr. SerjeantBompas. You say that that is in your writing, have you any book by which you can ascertain whether it was paid through a cheque or bill?—No, certainly not.
None whatever?—No; I could not tell whether it was a cheque or a bill. I cannot tell which; there is no book in our house that will tell us that.
On whose account was itpaid?—
Mr.Kelly. I object to that: I do not want all the payments made by this witness; we are upon the question if you can give secondary evidence of the cheque.
Mr. SerjeantBompas. I am going to see on whose account it was paid.
Mr.Kelly. I object to any evidence of bankers paying a sum of money on account of the firm, or on account of any other person, unless the document is in the handwriting of the prisoner at the bar, or the payment proved to have been made to his orders. What is to prevent, by the order of the partner in Spain, of which he never heard, this person being charged with felony?
Mr. SerjeantBompas. I submit that the evidence is sufficient; here is an express statement in the printed evidence.
Mr. JusticeMaule. It is not in evidence yet.
Mr.Kelly. I consider it in evidence; my learned friend may refer to any part of that book; I consider that that is in evidence now.
Mr. JusticeMaule. Very well.
Mr. SerjeantBompas. He first states he managed all the business. In answer toQuestion 10432he was speaking about the transactions with Africa, he was examined about the Augusta, and Mr. Kidd, he says, “My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.”
Mr.Kelly. That relates to a business upon which another insinuation was made, and which has no more to do with it than this.
Mr. SerjeantBompas. My learned friend assumes that this has no relation to it; he is quite mistaken in that. The question is, what is the meaning of the term, “this business,” it is not the business of the man of the name of Kidd; he says he never heard of him; but the question is, whether it is not the business of the Augusta and the trade with Africa; he says he manages all that business. I submit, if he takes upon himself to say he managed “all thisbusiness”—
Mr. JusticeMaule. What are the words?
Mr. SerjeantBompas. “All this business.”
Mr. JusticeMaule. I think the fair inference is, that the Mr. Zulueta, who came before the Committee, was the person who knew best about the matter suggested against them relating to the Augusta, and he came to speak to the matter of the Augusta, either solely or among other things; if so, “this business” must mean that.
Mr.Kelly. No, not if your Lordship looks at the context; he comes forward voluntarily, understanding there were charges against his house, not because he knew more about it than any body else, for he knew the least about it, but because he spoke English best.There is nothing from which you can infer in this evidence that Pedro Zulueta knew all that had passed through the house.
Mr. JusticeMaule. It is not very satisfactory to select a man who can speak English, but did not know much about the matter.
Mr.Kelly. I mention that in answer to your Lordship’s observation, “that he knew most about the matter.”
Mr. JusticeMaule. The Committee must have taken that to be the fact.
Mr.Kelly. If your Lordship thinks it must fairly be supposed to refer to that matter, then the question is whether that makes it evidence; I will call your Lordship’s attention to what he says: TheChairmanasks him, “Is there any other part of the evidence which has been given that you wish to observe upon?—It is asked here inquestion 5086, ‘Who was he?’ The answer is, ‘The name is mentioned in the Parliamentary Papers as being connected with the purchase of a slave vessel, Mr. Kidd; and it is mentioned in connexion with that of Mr. Zulueta, of London.’” There was some former transaction of the purchase of a slave vessel, in which Mr. Kidd was a party. He goes on to say, “Now, as to Mr. Kidd, the very first thing I ever knew or ever heard of his name, was to see it here. I never heard of his name at all. I never had a letter from him or through him, or knew any thing of the man whatever. That is with regard to myself. With regard to my partners, I can say the same; I have been making inquiries about it. My father knew there was such a man upon the coast, but I did not know even that, though I have managed all this business.” What business can that relate to, but the business in which Mr. Kidd’s name was mentioned, which was the purchase of a slave vessel?
Mr. JusticeMaule. I should think not: his father knew there was such a man upon the coast; “I did not know that, although I had that management of the business” which would lead me to know all the men on the coast, that is to say, all the coast business; that is the way I understand it, I confess.
Mr.Kelly. I cannot conceive that it is so; but it is for your Lordships to decide. Supposing that it is, I do not know how that makes this entry in the book evidence. Your Lordships will look at the next question: He is asked, “You have no connexion with Mr. Kidd in any way?—No; nor any knowledge of him.” Then he goes on with the same business; he was never alluding to the principal business, that of the Augusta.
Mr. SerjeantTalfourd. You will find he gives there an account of the whole transaction. Mr.Forstersays, “You advanced the money to Captain Jennings for the purchase of a vessel; Jennings transferring the vessel to you as a security for the amount so advanced?—That is just the description of operation, which is a very general one in business.”
Mr. SerjeantBompas(toMr.Thomas.) Whose handwriting is that?—The handwriting of a Mr. Daniel, in our office.
Mr.Kelly. I submit that this relates to the business of Mr. Kidd.
Mr. JusticeMaule. It struck me otherwise; but at the same timeyou seem so extremely satisfied with your own view, and my view is just as it struck me, that you stagger me by your positiveness.
Mr.Kelly. I should not like your Lordship or the Jury to be misled as to the amount of interference by this gentleman in the business. Suppose it is so, that he had the management of the fitting out of the Augusta, how does that make evidence of an entry in the banker’s book of the payment of a sum of money? He cannot say to whom he paid it, or on whose account? How can that make it evidence upon a charge of felony? I do not know the nature of it, but I am quite sure it is quite consistent with Pedro Zulueta, having done all he has admitted to have done before the Committee, that he never heard of that payment.
Mr. JusticeMaule. In whose handwriting is the signature to the charter-party?
Mr.Kelly. It is the signature of the prisoner that has been read.
Mr. JusticeMaule. I do not think you are in a situation to put in this evidence. This witness paid across the counter to somebody, upon something which they produced, a sum of money, and the thing then produced you call for.
Mr. SerjeantBompas. We call for the document upon which it was paid, and we are going to take another step to show that the money so paid was applied to this vessel. Your Lordship has got the statement that they advanced the money for the purchase of the vessel.
Mr.Kelly. There is no doubt that the house of Zulueta & Co., on account of Martinez & Co., paid for this ship. My learned friend says he calls for that document. He calls for a document he has not shown to be in existence. Let him prove the existence of the cheque; and then the question arises, whether secondary evidence is admissible.
Mr. SerjeantBompas. Can you say whether it was paid through a cheque or draft?—No, it is impossible.
Mr. JusticeMaule. He says it was paid through an acceptance upon their house, or upon a cheque upon their house; that it was something purporting to come from Zulueta & Co., but that does not bind the prisoner; that cheque so purporting to come from Zulueta & Co. was sent back to Zulueta &, Co., and notice was given for the production of it?
Mr.Kelly. Yes, my Lord, notice has been given to produce the cheque or draft; that does not mean a bill of exchange accepted at Cadiz, where they had a house, or at Liverpool, where they have another house.
Mr. SerjeantBompas. Cheque or draft would apply to a bill.
Mr. JusticeMaule. If it refers sufficiently to the contents of it.
Mr.Kelly. Read the words of the notice, and we will see.