ely exhausted and worn
out by extreme fatigue, owing to the Court having continued
the trial without intermission for many hours beyond that time
which nature is capable of sustaining herself without
reflection and repose, that justice could not be done to this
deponent.

_Cochrane._"

Sworn in Court the
14th June 1814.

"In the King's Bench.

"The King _against_ Charles Random De Berenger, & others.

"Thomas Dewman, servant to Lord Cochrane, maketh Oath and
saith,----"

_Lord Ellenborough._ This was a person called as a witness on the trial;
if the affidavit goes beyond what he then stated, or in contradiction to
what he stated, it cannot be received.

_Lord Cochrane._ Would your Lordship permit me to explain the reason why
he was not interrogated?

_Mr. Justice Bayley._ It is a settled rule, not to allow the affidavits
of persons who might have been called upon the trial, much less of
persons who were called.

_Lord Ellenborough._ And if any were not called, they were not called
under the discretion of your Lordship. It would be a very dangerous
thing, if persons whose evidence may have been discreetly kept back,
should afterwards be admitted to come forward as witnesses.

_Mr. Dealtry._ The next is the affidavit of Sarah Busk.

_Lord Cochrane._ My humble hope is, that you will be pleased to grant a
new trial, in order that these persons may have the opportunity of being
examined: they were not called from an error in the brief, which (so
little was I conscious of any participation in the fraud) I had not even
read.

_Mr. Gurney._ My Lord, the Counsel for the defendant were not
uninstructed, as to the evidence which these persons could give;
because, annexed to the affidavit which your Lordship has stated, of
Lord Cochrane, were the affidavits of all the servants, of the one who
is not now in England, as well as of the three who are in England. They
are all printed together in Mr. Butt's pamphlet, which was produced at
the trial. Therefore the Counsel for the defendant were informed of
every circumstance, and they might, if they had thought it would serve
their client, have called all those persons as witnesses.

_Mr. Justice Le Blanc._ There is no rule better established, than that
after trial we cannot receive the affidavits of persons who were called,
or who might have been called as witnesses. Whatever might be the reason
for keeping