r epetition, but I shall abuse your lordship's in- | himself disappointed at one place and then goes dulgence as little as I can. Had it been a parallel to another, will that excuse him? they speak case to that of coin it would have given us light as if the fraud were in Mr. Peters, as if it were to see into the nature of this offence. But from so that Mr. Peters's fraud could sanctify this the act read, those bills are not to be sold to sup-matter; though he had trusted Peters with the ply the room of money in all cases, but at first thing, as it looks like something of this: that with narrow limitations, and afterwards with the leaving out of the date and putting nothing limitations again; the first issued were issued but the name was a temptation to any clerk of upou sinking the fund, the capitation act, the the exchequer. land tax, 3s. aid, and to be sunk. The first original of those bills were to be received in no other aid or tax but that on which they were first issued. Then this provision was further made, that receivers and collectors of those funds, if any of them had money in their hands rising from those aids and revenues, it is limited to them in the 1,500,000l. act, &c. None of these so authorized to make such exchange; no other but those, that those provisoes are made upon can make such exchange by the recited clause of the act. What a ridiculous care it would have been in the parliament to keep the execution of the act in the hands of the lords of the treasury, if it was in the power of receivers, collectors, &c. to substitute another species in the room of money. To inforce Mr. Attorney's exposition, the 389th page of the 2d act in every paragraph makes a distinction, considering, &c. The interest stops when paid unto any receiver, collector of the aid tax, &c. shall that receiver and collector keep that in his pockets, and 1,000!. at the same time, and then clap these bills instead of money into the exchequer? This must be tolerable, if that which the gentlemen of the other side say be law, for the collectors in that case may keep the king's money, make use of it, and when the day comes, pay bills into the exchequer instead of the king's money. Paying into the hands of the public receivers or collectors is the paying of it to the king, after the king's officer hath it in his hands, they will say, it is profit indeed to our client but no disadvantage to the public, but that will not altogether excuse it, the faster these bills came into the exchequer the faster they issued out in discharge of tallies, so that it was as much to the advantage of Mr. Duncombe as it was to the detriment of the public. L. C. J. That is not in your information. Mr. Cooper. No, my lord, it is not, but supposing the privity of Mr. Peters, it would not justify Mr. Duncombe; they insist upon his not being an officer at the time of the payment, but as he was keeper of that cash and bound by articles for the performance of his trust till he made his last payment. Mr. Montague. I shall only crave a word as to Peters's evidence; suppose what Mr. Cooper has said to be true, and supposing that what the other side says gain credit with the jury that Mr. Peters be guilty, and Mr. Duncombe not guilty in that point. If Mr. Peters took them from him as from Mr. Duncombe and not as cashier of the excise, and by him received upon the branch of the revenue. If D'Acosta had paid it to him as to Mr. Duncombe and not as cashier, and if Mr. Duncombe had paid it in as a private man he should have put his own name and not D'Acosta's to them. We charge him with having made the payments as from the excise, leave out Peters's testimony, we need it not for that, for it will plainly appear there was a discharge given to Mr. Duncombe, as if he had paid it as coming through the excise. L. C. J. It was never the intent of the act of parliament that the king's cashier should keep the king's money to buy bills, and then pay them in as if he had received them on the revenue; the law does not allow receivers to convert the king's money to their own use and to pay it in paper, but that cannot be well and therefore you gentlemen who are counsel for the defendant, and have urged this as a lawful payment, we are all of opinion that the law is against you. Mr. Duncombe being the king's cashier, and having specie in his hand, and he to pay 7,800 odd pound in exchequer bills, whereof he hath converted the money to his own use; this is a crime, but whether he be guilty of it or not, we must leave it to the The information is, that being possessed of 10,000l. of the king's money, that he paid exchequer bills into the exchequer for it, that is the question, if Mr. Duncombe be guilty of this crime as laid in the information. The question of fact between us is, if Mr.Dun-jury. combe bought these bills on a discount in order to make this payment, and if he ordered a false indorsement with feigned names, and if all their wit can suggest no other cause for these names, and if it appear that he sent his servants with those bills to discharge a charge upon him on the account of the excise, it must appear to be a fraud upon the public, suppose on the point of credit betwixt Mr. Peters and Mr. Cook, though it should be in the opinion of the jury against us, it will be no colour for them to acquit Mr. Duncombe. Suppose Mr. Duncombe had brought them into the exchequer indorsed as paid into the exeise, as it is plain he did, suppose he found Serj. Darnel. With submission, my lord, that is not the question. L. C. J. It is; I have read the brief. Judge Rooksby. There is no evidence of any bills when the matter was so indorsed on these bills. L. C. J. He paid them in as if received by him into the excise, that is the point. Mr. Montague. He paid them in as parcel of that sum. L. C. J. It is said he paid them ac si &c. Mr. Montague. Suppose that be left out. Judge Turton. The indorsement goes only to the name. Peters, a teller in the office, and were received by him for 7,000 and odd pounds, but before they came thither, a servant of Mr. Duncombe's comes to him, says Fern, and discourses him on Mr. Duncombe's account about if he would receive them, he says no, he could not think they had circulated through the excise in so short a time, and therefore he could Judge Rooksby. As to the matter of law, if it appear that there is an offence within this in-paying in those exchequer bills, and asked Fern formation, by that he is not only complained of as a subject injurious to his sovereign but as a servant injurious to his master. He was intrusted with the king's money, and when he re-not receive them, Mr. Duncombe's servant said ceived it, defrauded his master and paid it in, that that is less than the intrinsic value, for what he paid to the king for 100l. was but 951. L. C. J. That is true, but is that in the information? Another Judge. That general clause cannot extend to Mr. Duncombe, for if it could be so, he might have as well paid the money 14 months after as when he did, he might have kept the money and alledged the act, but that he did not. L. C. J. Gentlemen of the jury, the charge against Mr. Duncombe is for fraud and deceit against the king. It supposes that he was cashier of the excise, and as such received a great sum, being possessed to the value of 20,000l. in milled money. He dealt with D'Acosta for exchequer bills, for 7,000 and odd | pounds, those he bought from Mr. D'Acosta at 51. per cent. discount: this appears upon evidence, &c. as in the information, and be is charged with paying in those bills into the exchequer, as being truly indorsed, and as if he had received them upon that branch of the revenue. The question is, if he be guilty in such a manner as he is charged. The preliminaries to it are proved, as that he was cashier to the excise on the 4th and 5th of May, 1697, and that he was turned out on the 7th, and that he had this money in his hand is plainly proved. they had not been paid into the excise, this was four days before they were paid into Mr. Peters, and supposed to have been attempted by way of preparation for what was done after. On the 12th of May, the exchange was made betwixt Mr. Duncombe and Mr. D'Acosta. Mr. Peters says, that Mr. Duncombe's servant came into his office with those bills, and gave him all the particulars they were received for. Mr. Peters gave them to his servant to look over, and he looked all of them over, he says they were not indorsed with the day of the month but only with a name, so says D'Acosta, be took it for granted they had been paid into the excise, and thereupon charges himself with the receipt of so much money, struck a tally, and discharged Mr. Duncombe; after this it was discovered, that those bills were not paid into the excise as they seemed to be, truly says he it will be damage to me, I shall be a sufferer, and therefore desires Mr. Duncombe to take them again. No, says Mr. Duncombe, I am not obliged so to do. I have got a tally for my discharge, and will be concerned no further. Peters says it is a damage to him of 250l. he hath told you they were in three parcels, some of the exchequer bills he found regularly indorsed as paid actually into the excise, and they were put up into a chest with a cover over them, indorsed exchequer bills upon the excise. They found an omission of the day when they That he did contract with D'Acosta is proved were paid in, and indorsed several of them, and by D'Acosta himself. It seems that D'Acosta supplied that omission. This is the substance had contracted with the commissioners of the of the evidence to induce you to believe Mr. treasury for paying money beyond sea for the Duncombe guilty. First, say they, here was a king, and was to have the value of his bills in fraud in Mr. Duncombe to convert the king's exchequer bills. This contract was made money to his own use and to pay exchequer some time before, and he had allowance ac- bills in lieu of money. Then there was an atcordingly, because it was to depend upon the tempt made before on the clerk of the office credit of an act of parliament. He says, he where Mr. Duncombe's servant comes and tries did give for those bills bills of exchange, and if he would be put upon, this was before the having occasion for money, he came to Mr. agreement with D'Acosta, but in prospect as you Duncombe to know if he would buy any, after- are to suppose. But of the truth whereof you wards he dealt with him, and let Mr. Dun-must judge, and then he comes to Peters who combe have those bills on the 12th of May, Mr. Duncombe agreeing with him for money at the discount of 12. per cent. and odd money. Then Mr. Duncombe desired him to set his hand upon the back of the bill, which he did, but beginning to reflect upon himself that he should forfeit his credit with the lords of the treasury to discount so many bills in so little time, he was unwilling to set his hand any further, upon which Mr. Duncombe bid him set any name, he did so, and Mr. Duncombe had the bills, and he his money. Those bills were afterwards brought to Mr. supposed them to be received in the excise, and accordingly Mr. Duncombe was discharged of so much money as paid out of the excise. The defendants say Mr. Duncombe hath not done an ill thing in point of law, taking it to be true, that Mr. Duncombe paid those bills as so much money paid into the excise they say he might have paid it in bills received on any other account. If so, be that bath the king's money instead of the individual money pay exchequer bills. This is affected to be law, but all the court is of another opinion. We think it had been more reasonable for them to have thought combe had a mind to pay them into the exchequer as they had been paid into the excise, why in different parcels? here is a plain distinction in this circumstance they insist upon to falsify the evidence of Peters. Here again there are two other of Mr. Duncombe's inen called, Mr. Peters says it must be one of them that brought him the bills, but they both swear that they never paid any exchequer bills, they don't remember they were at Peters's office. Peters says, he did see Mr. Duncombe at that time, but that he saw him afterwards in the hall but not at that time, this is a plain contradiction to the evidence. We must leave it to you gentlemen of the jury, upon the whole matter, whether you be satisfied that Mr. Duncombe is guilty of the crime or not as laid in the information. If he paid those bills into the exchequer, as if they had been first paid into the revenue of the excise for so much money. If you he satisfied he did, you must bring him in guilty, but if you be satisfied that he distinguished between the bills and told Mr. Peters what bills they were, you are to bring him in not guilty. The Jury did immediately, without going from the bar, bring him in Not Guilty.* "This is a copy of the Trial of Charles Duncombe, esq. taken June 17, 1699, when he was tried before the lord chief justice Holt at the King's-bench bar, Westminster. Testified by me George Ridpath."' that the law would never allow the king's receiver to go away with the king's money and convert it to their own use, but when those collectors have received these bills and pay them as money, then they took them for money and it is but reasonable they should be allowed to pay them to the king as money, but the contrary was never the meaning of any act of parliament; therefore we are to expunge all that part of the defence out of the case, and must say that such a payment cannot be just in law. The offence laid in the information is, that be paid in so many exchequer bills as if they had been paid into the excise. They say Mr. Peters is mistaken, all those bills brought by Mr. Duncombe's man were not on that account. Cook swears he brought the bills, and that Mr. Duncombe was by when he brought in three parcels, and he gave Mr. Peters a particular account what those bills were, he says that for 1,300 and odd pounds they were indorsed as paid into the excise, and he gave an account to Peters that those bills were actually received into the excise, and that there was no question about the other amounting 7,800l. paid as part of the 10,000l. Cook is positive as to this, he was by Mr. Duncombe at the time, if so there is a great alteration in the case, though it was a fault in Mr. Duncombe, to convert so much money to his own use, yet it is not the fault laid in the information. Further, if the evidence Cook swears true, the bills being in several parcels, if Mr. Dun 405. The Trial of SPENCER COWPER,* esq. ELLIS STEPHENS, WILLIAM ROGERS, and JOHN MARSON, at Hertford Assizes, for the Murder of Mrs. Sarah Stout: 11 WILLIAM III, A. D. 1699. July 16, 1699. Proclamation was made for all persons concerned to attend. Cl. of Ar. You good men that are empannelled to enquire, &c. answer to your names, and save your fines. Then Ellis Stephens, William Rogers, and John Marson, being upon bail, proclamation was made for them to attend, which they accordingly did; and Mr. Cowper was brought into court by the under sheriff. Cl. of Ar. Spencer Cowper, hold up thy hand. (Which he did.) John Marson, hold up thy hand. (Which he did.) Ellis Stephens, hold up thy hand. (Which he did.) William Rogers, hold up thy hand. (Which he did.) Cl. of Arr. You stand indicted by the ' names of Spencer Cowper, late of the parish of St. John's in the town of Hertford, in 'the county of Hertford, esq. John Marson,' * Mr. Cowper and Miss Stout are the Mosco and Zara of Mrs. Manley's New Atalantis. VOL. XIII. < 'late of the parish aforesaid, in the county 'aforesaid, gent. Ellis Stephens, late of the parish aforesaid, in the county aforesaid, gent. and William Rogers, late of the parish aforesaid, in the county aforesaid, gent. for 'that you not having the fear of God before your eyes, but being moved and seduced by the instigation of the devil, on the 18th day of March, in the 11th year of the reign ' of his present majesty, by force and arms, &c. 'at the parish aforesaid, in the county aforesaid, in and upon one Sarah Stout, 'spinster, in 'the peace of God and our sovereign lord the king, then and there being, violently, feloniously, voluntarily, and of your malice aforethought, did make an assault; and that you the aforesaid Spencer Cowper, John Marson, Ellis Stephens, and William Rogers, a cer 'tain rope of no value, about the neck of the said Sarah then and there feloniously, volun'tarily, and of your malice aforethought, did 'put, place, fix and bind; and the neck and 'throat of the said Sarah, then and there with 4 B the hands of you the said Spencer Cowper, John Marson, Ellis Stephens, and William Rogers, feloniously, voluntarily, and of your 'malice afore-thought, did hold, squeeze, and gripe; and that you the said Spencer Cowper, John Marson, Ellis Stephens, and William Rogers, with the aforesaid rope, by you the said Spencer Cowper, John Marson, Ellis "Stephens, and William Rogers, then as afore'said about the neck of the said Sarah Stout put, placed, fixed, and bound, and by the squeezing and griping of the neck and throat of the said Sarah with the hands of you the 'said Spencer Cowper, John Marson, Ellis Stephens, and William Rogers, as aforesaid, the said Sarah Stout then and there, by force and arms, &c. feloniously, voluntarily, and of your malice afore-thought, did choak and 'strangle; by reason of which choaking and strangling of her the said Sarah Stout, by you the aforesaid Spencer Cowper, J. Marson, Ellis Stephens, and W. Rogers, with the said · rope about the neck of the said Sarah Stout as aforesaid, placed, fixed and bound, and by the squeezing and griping of the neck and throat ' of the said Sarah with the hands of you the 'said Spencer Cowper, John Marson, Ellis 'Stephens and William Rogers, as aforesaid, 'the said Sarah then and there instantly died. And so you the said Spencer Cowper, John 'Marson, Ellis Stephens and William Rogers, the said Sarah Stout, on the 13th day of March, in the year aforesaid, in the parish 'aforesaid, in the county aforesaid, in manner and form aforesaid, feloniously, voluntarily, and of your malice afore thought, did kill ' and murder; and the said Sarah Stout, as aforesaid, by you the said Spencer Cowper, John Marson, Ellis Stephens, and William Rogers, feloniously, voluntarily, and out of your malice afore-thought, choaked and strangled; into a certain river there, being 'called the Priory River, then secretly and 'maliciously did put and cast, to conceal and hide the said Sarah Stout, so murdered, against the peace of our sovereign lord the king, his crown and dignity, &c.' speak is as they come to the book to be sworn, before they be sworn. (Then the pannel was called over.) Cl. of Arr. Do you design to join in your challenges, or to challenge separately? Mr. Cowper. If we should challenge sepa. rately, there must be so many separate trials; and therefore to prevent the trouble of the court, I am willing there should be but one challenge for all. Cl. of Arr. Gentlemen, do you all agree to that?-Prisoners. Yes, yes. (Then after some challenges, as well on the part of the king as of the prisoners, there not being a full jury of the principal pannel :) Mr. Cowper. If your lordship please, the pannel is now gone through, I desire they may shew some legal cause for their challenges. Mr. Jones. I conceive we that are retained for the king are not bound to shew any cause, or the cause is sufficient, if we say they are not good for the king, and that is allowed to be a good cause of challenge; for what other cause can we shew in this case? You are not to shew your cause, you challenge peremptorily; so in this case the king does. Mr. Cowper. My lord, I stand at the bac with some disadvantage, to encounter a gentleman, that hath no concernment; but however, I do take it for law, that there must be a cause shewed, and that cause must be a legal one, and what that cause is they must certainly make out. I do think it ought to appear that there is some relation,or some notorious affection or friendship, or something of that sort; or otherwise it is not a legal cause of challenge; and if there seem to be any difficulty in this particular, I hope your lordship will assign me counsel to argue it with the king's counsel. Baron Halsell. Mr. Cowper, you are not under such disadvantage as men usually are that stand where you now do. You have been educated in the study of the law, and understand it very well. I have several times seen how you have managed your clients causes to their advantage. As for this matter of challenge, Mr. Jones, I think, you should shew your cause of challenge, though the law allows the prisoner liberty to challenge twenty peremptorily. How sayest thou, Spencer Cowper, art thou guilty of the felony and murder whereof thou standest indicted, or not guilty? Mr. Cowper. Not Guilty. Cl. of Arr. Culprit, how wilt thou be tried? [Then the other three pleaded Not Guilty, and put themselves upon their country in manner aforesaid.] Then Proclamation was made for informa tion. Cl. of Arr. You the prisoner at the bar, these men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of your several lives and deaths; therefore if you will challenge them, or any of them, your time to Mr. Jones. I do not know, in all my prac tice of this nature, that it was ever put upon the king to shew cause; and I believe some of the king's counsel will say they have not known it done. Mr. Cowper. In my lord chief justice Hales's Pleas of the Crown, p. 259, it is expressly so; and in the statute of 33 Edw. 1. it is said, the king shall not challenge without cause, and that must be legal. Cl. of Arr. Call Daniel Clarke. * See the Case of Peter Cook, in the present volume, p. 311. any juryman hath said any thing concerning this cause, and given his verdict by way of discourse, or shewed his affection one way or other, that would be good cause of challenge. Mr. Jones. My lord, then we should keep you bere while to-morrow morning. Baron Hat sell. If there hath been any great friendship between any juryman and the party, it will look ill if he be insisted upon. Mr. Cowper. My lord, I do not insist upon it, but I profess I know of no friendship, only that Mr. Clarke in elections hath taken our interest in town; I know I have a just cause, and I am ready to be tried before your lordship and any fair jury of the county; therefore I do not insist upon it. Then the Jary sworn was as followeth : Evan Lloyd, William Watson, John Prior, John Harrow, George Holgate, John Stracey, Thomas Parrot, Sam. Wallingham, Francis Cole, Rich. Crouch, John Cock, Richard Dickinson. Mr. Cowper. My lord, I humbly move that I may have pen. ink and paper. Baron Halsell. Ay, by all means. Cl. of Arr. Hold up your hand. (Which he did.) And so of the rest. You of the jury, look upon the prisoners, and hearken to their charge. They stand indicted by the names of, &c. (Prout in the indictment, mutatis mutandis.) Jury. My lord, we desire we may have pen, ink and paper. Cl. of the Assize. There are three of the jury desire pen, ink and paper. Baron Hutsell. Let as many have it as will. Mr. Jones. May it please your lordship, and you gentlemen that are sworn, I am of counsel for the king in this cause, and it is upon an indictment by which the gentlemen at the bar stand accused for one of the foulest and most wicked crimes almost that any age can remember: I believe in your county you never knew a fact of this nature; for here is a young gentlewoman of this county strangled and murdered in the night time. The thing was done in the dark, therefore the evidence cannot be so plain as otherwise might be. After she was strangled and murdered, she was carried down into a river to stifle the fact, and to make it supposed she had murdered herself: so that it was indeed, if it prove other wise, a double murder, a murder accompanied with all the circumstances of wickedness and villainy that I remember in all my practice, or ever read of. This fact, as it was committed in the night time, so it was carried very secret, and it is very well we have had so much light as we have to give so much satisfaction; for we have here, in a manner, two trials; one to acquit the party that is dead, and to satisfy the world, and vindicate her reputation, that she did not murder herself, but was murdered by other hands. For my part, I shall never, as counsel in the case of blood, aggravate; I will not improve or enlarge the evidence at all; it shall be only my business to set the fact as it is, and to give the evidence, and state it as it stands here in my instructions. My lord, for that purpose, to lead to the fact, it will be necessary to inform you, that upon Monday the 13th of March, the first day of the last assizes here, Mr. Cowper, one of the gentlemen at the bar, came to this town, and lighted at Mr. Barefoote's house, and staid there some time, I suppose to dry himself, the weather being dirty, but sent his horse to Mrs. Stout's, the mother of this gentlewoman. Some time after he came thither himself, and dined there, and staid tili four in the afternoon; and at four, when he went away, he told them be would come and lodge there that night, and sup. 1 According to his word he came there, and had the supper he desired; after supper Mrs. Stout, the young gentlewoman, and he sat together till near eleven o'clock. At eleven o'clock there was orders given to warm his bed, openly to warm his bed, in his hearing. The maid of the house, gentlemen, upon this went up stairs to warm his bed, expecting the gentleman would have come up and followed her before she had done; but it seems, while she was warming his bed, she heard the door clap together; and the nature of that door is such, that it makes a great noise at the clapping of it to, that any body in the house may be sensible of any one's going out. The maid upon this was concerned, and wondered at the meaning of it, he promising to lie there that night; she came down, but there was neither Mr. Cowper nor Mrs. Stout; so that we suppose, and for all that we can find and learn, they must go out together. After their going out, the maid and mother came into the room; and the young gentlewoman not returning, nor Mr. Cowper, they sat up all night in the house, expecting what time the young gentlewoman would return. The next morning, after they had sat up all night, the first news of this lady was, that she lay floating and swimming in water by the mill dam. Upon that there was several persons called; for it was a surprize how this should come to pass. There she lay floating with her petticoats and apron, but her night rail and morning gown were off, and one of them not found till some time after; and the maid will give you an account how it came to be found. This made a great noise in the country; for it was very extraordinary, it happening that from the time the maid left Mr. Cowper and this young gentlewoman together, she was not seen or heard of till next morning, when she was found in this condition, with her eyes broad open, floating upon the water. When her body came to be viewed, it was very much wondered at; for in the first place, it is contrary to nature, that any persons that drown themselves should float upon the water. We have sufficient evidence, that it is a thing |