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and delivered to one of our junior clerks in the office, Mr. Gibbs.

Mr. Scott. Were you present?-No. Mr. Scott. You must only speak of your -own knowledge.

Lord Mansfield. It is only to inform you how the book came back, he will tell you in a moment, he found it there; it is of no consequence how the book came back.

Mr. Hughes. When I saw the book, I looked to see if those two items were inserted, and found they were; but between those two items, and the last entered sum, in the charged part of the account, I found entries had been made of various sums to the amount of upwards of 48,000/,, the discovery of which, I confess, very much alarmed me, and my brother deputy also; upon which, we drew out a fresh state of the account, and delivered it at the treasury.

Sir T. Davenport. I believe you know in whose hand-writing the additional articles so inserted were?—I cannot pretend to say that. When you observed those additional articles inserted, was the pencil balance standing then?-No; it was rubbed out then, so as to leave no traces.

Had those additional articles the office mark of having been examined?—No; that was the reason I discovered them; finding they had not the official mark of having been examined, I called the clerk and asked him how that was; he said they were all new items added since the book had been at the pay-office.

Did you make out the new articles to send to the treasury, or did you acquaint the lords of the treasury with the transaction?-I will not be sure whether we gave them the particular items, or only gave them the amount of the items.

In substance, you acquainted them with the transaction?—Yes.

Mr. Hughes cross-examined by Mr. Bearcroft.

I wish you would turn to that book in which the penciled balance was inserted, and show me the place where it stood?-This was the place (pointing it out).

Immediately after the last item, in ink, there was a penciled balance struck?—Yes. How long have you been in the office of the auditor-Thirty-six years, pretty nearly. I presume that balance was put in pencil because it was uncertain, and liable to alteration, or else why was it put in pencil rather than in ink? It is the practice of the office, is it, to put it in pencil?-I don't say so.

Has not pencil balance' been a common phrase during the time you have been in the office?-No; but in this case it was, because they were pressed close for a balance; Mr. Powell declined it, in expectation of having some allowances from the treasury respecting Mr. Robert Paris Taylor, I apprehend that was his reason.

Did you ever know of a penciled balance before?—I cannot recollect; there never was one since I have been deputy-auditor; when I was clerk I had not the care of those accounts.

If it is an unusual thing, and you do not recollect an instance of it, did not you, upon observing it being in pencil, conceive the account was not finally closed?-I knew it was not finally closed; but they agreed that the penciled balance was the balance of that ac

count.

You understood, according to the course of office, it was not finally closed till it was attested?-I did.

Which attestation is the person's putting his name to it, and swearing to it? It is.

If it is not finally closed till then, has it not been the practice in the office for persons to add sums afterwards, before the final attesIs there any particular view of the account tation?-I do not recollect any instance, afthat will show where the articles of thirteen ter the parties accounting had said that was hundred and odd pounds were added; were the balance, of their adding any thing: not they inserted amongst those other articles? that the auditor would have had any objection They were then the last entered sums. Upon to it, provided they had produced good authofinding these sums added, lord Sondes him-rity for it, at any time before the attestation. self wrote a letter to Mr. Powell, to desire to know if he had any farther sums to add to the charge or discharge of the account; Mr. Powell wrote an answer to lord Sondes.

Lord Mansfield. You need not give an account of what Mr. Powell did.

Mr. Hughes. This paper contains the new articles; this account is dated February the 18th 1783,-the state of the additions made to the charge and discharge of the final account of Henry lord Holland.

[The several items were read.] Mr. Bearcroft. I apprehend a letter from Mr. Powell cannot be evidence.

Lord Mansfield. It is only proving the fact, that this paper was, upon the discovery, delivered in by them to the treasury; it will not prove that such a letter was written.

Have not you known instances of auditors and paymasters having added items to the account after the balance was settled and delivered in?-I do not recollect any.

I believe you cannot take upon you to say that there exist no such instances?—I cannot be positive.

In truth, they have said, they had nothing more to add, but the account was not in fact finally closed, and they were at liberty to do it?-The auditor has never any objection, before an account is attested, to give the accountant liberty to add to it; but after they had delivered that in, we concluded it was the true balance.

Who said the account was closed, was it not Mr. Powell?-No; Mr. Colborne; I asked him whether they agreed with the

balance as we had made it? he said yes, they Do you recollect any other instance of a did; then I said we should draw out a state paymaster, or his representative, managing, of it, and deliver it to the treasury imme- his own accounts without any interference of diately, for our office had been rather cen- the auditor?-I believe there have been some sured, as if we had delayed passing these ac- before; to my knowledge, I do not recollect counts, and we were willing to show the any since. treasury it was not the fault of the auditors. I do not know whether you are sufficiently

I think you said, upon your application to acquainted with the business of the payMr. Bembridge, he referred you to Mr. office, to state correctly the business of the Powell? - Yes.

accountant in that oftice?-I cannot say I And you said, that in consequence of that, am. you thought Mr. Powell was the man you Sir T. Davenport. You are talking of some should apply to ?-Yes; and we only applied allowance Mr. Powell had thought of claiming to Mr. Powell after Mr. Bembridge said he upon the dispute between himself and Mr. had done all he could, and had referred us to Paris Taylor; nad that any thing to do with · Mr. Powell.

the charged part of the account, as well as When was that reference to Mr. Powell?- the discharge ?-Yes; it went to them both. In the month of November.

You said there was an application from Mr. Powell was cashier of the pay-office?- Mr. Ingram to the deputy-auditor Mr. BingYes.

ham, to permit him to make out that account : And acting executor of lord Holland?-Yes. of Mr. Winnington's? -Yes.

As cashier of the pay-office, he gave daily Suppose no such application had been attendance there?- I believe so.

made, trom whence must the account have As cashier, has he had any thing to do come—from the auditor's office !-- From Mr. with the accounts of the paymaster:We Ingram, as acting executor; whether he could never apply from the auditor's office to the have taken the books out of the pay-office cashier; our directions generally go to the for that purpose or not, I do not know; he paymaster-general, and then it goes from that had a power over them as executor. office to the proper officer, but we direct our Mr. Bearcroft. Then, if I understand you, observations to the accountant-general of the the person acting has a right to employ aný pay-office.

person he pleases to manage that account for You have been thirty-six years in the au- him ?-I apprehend so, and that is a clear inditor's-office ?-Within about two months. stance of it.

Do you recollect any persons making up For the deputy-auditor has no more to do the accounts of dead paymasters, or pay with it than any other man?–I do not bemasters out of office, besides the accountants lieve the person himself could do it, but the of the office?-Yes; I remember Mr. Win-executor of the person I think could. vington's accounts being made up, that was The account of lord Holland is not closed the first account I was put upon (when I came yet?-No; we have done nothing in it since. to London, in the year 1747 ; Mr. Bingham Sir T. Davenport. Do you happen to know was then the deputy-auditor); Mr. Ingram whether Mr. Ingram, in the case you menwas the executor of Mr. Winnington, and he tion, was paid by the public for passing that applied to Mr. Bingham to make up this ac- account?

--I don't know. count; the book and vouchers were delivered Lord Mansfield. Ingram was the represenfrom the pay-office, at Mr. Bingham's house, tative of the accountant; he did not act for in Hatton-garden, and I attended, and it was the public. made up and passed in auditor Benson's office, Sir T. Durenport. But there is, in this or lord Sondes's; I am not sure whether it case, an allowance of 2,6501. as to a person dowas in Mr. Benson's or lord Sondes's time. ing it in his official capacity. Then, in that instance, the paymaster, or

Lord Mansfield. So I suppose there was any of his clerks or accountants, had nothing in Mr. Winnington's case :-Yes; I have a to do with it; the deputy auditor, by the di- warrant in my possession; Mr. Ingram had rection of the executor of Winnington, made the allowance; he had 2000l.; he has signed it up entirely ? - Yes; the books were all taken his name here. from the pay-office, and put into the hands That was to pay to other people ?-To inof Mr. Bingham, the deputy-auditor.

cidents and fees of sundry officers of the treaThey were very considerable accounts ?- sury and exchequer. Very voluminous.

It is an article allowed to the accountant Amounting to large sums?-- Yes.

for fees, he must be paid; it therefore amounts Upon that occasion, neither the paymaster- to this; Mr. Ingram, in his case, did all the general, nor his accountant; nor any of the busines; they left it to him, and took their clerks of the office interfered at all?-No fees for doing nothing. more than to answer the muster-roll; there Mr. John Wigglesworth sworn.--Examined by was the officer of the muster to have the muster-roll rectified.

Mr. Thomas Couper. Otherwise they did not interfere in passing You are a deputy in lord Sondes's office? the accounts? -None else.

Yes,

Do you know the defendant, Mr. Bem-count; we missed the book, and on the 11th bridge? Yes.

Do you know Mr. Colborne?—Yes. In what situation is Mr. Colborne?-Clerk to the accountant in the pay-office; at least we are given to understand so by letters that passed between Mr. Powell and us.

Do you remember the time when the final account, as we call it, was delivered in at the auditor's-office?--I was not at the auditor'soffice at that time, but we have brought a paper down with us which will particularly point out the time of the delivery; it was in the year 1772.

Do you remember in the month of November last, your having any communication with Mr. Bembridge or Mr. Colborne, which led you to know whether that account was completed or not?-Yes; with Mr. Bembridge and Mr. Colborne both on the 27th of October, we transmitted to Mr. Bembridge our observations on examining the final account of lord Holland; those observations were in consequence of our having given the account a thorough examination, and we looked upon it to be the last occasion we should have to make observations on it In the middle of November, I called upon Mr. Bembridge, and requested that he would answer those obser vations, in order that we might be able to have the account attested, and have a declaration, at Christmas, before the chancellor of the exchequer; Mr. Bembridge then begged that we would, in future, communicate with Mr. Powell; that he acted according to the directions of Mr. Powell, and could, of himself, do nothing in it We then applied to Mr Powell, we told him we had proceeded on the account as far as we possibly could, and begged be would close it, that we had lord Sondes's particular directions to prepare a state of it, and present it to the treasury; Mr. Powell made no objection to closing the account, only saying there were accounts between him and Mr. Paris Taylor unsettled; these objections we did not deem sufficient to keep an account of such consequence open, and, of course, we transmitted a state of it to the treasury, apprizing Mr. Powell at the same time, that such a state was going in. The account had gone through such a thorough examination, that we always imagined the pay-office exactly agreed with us in the balance, as they never objected to it; the only reason they assigned was, that of Mr. Paris Taylor's account being left open; our intentions of finishing it were well known to them: it must have been about the end of November that we sent the state of it to the treasury; about three weeks after, Mr. Powell wrote a letter to the deputy-auditor, stating that he had made out the account as far as he was able, but there were some matters between him and Mr. Paris Taylor that prevented his closing the account; we were busy then, so the matter lay over till the night of the 10th of January, we then settled lord Holland's ac

of January, we sent to the pay-office for it; we then found it had been in our office some time, but on account of the hurry of business, we overlooked it; as we had finished the busi ness for which we wanted it, it had remained there a very considerable time before we discovered the additional articles; I imagine it must have been about the last of January when we discovered the additional articles; for on the 5th of February, we informed the lords of the treasury, that the balance was increased upwards of 48,000l. by a number of additional articles being added to the account; this representation produced an order from the lords of the treasury, for us to transmit those particular articles; in consequence of which, we were examined before the lords of the treasury, and Mr. Powell and Mr. Bembridge were examined before them. Since that time, Mr. Powell has paid in 26,000l. on account of lord Holland.

Before the book went back, did either Mr. Powell, Mr. Bembridge, or Mr. Colborne, say any thing of those additional articles being to be inserted against lord Holland ?—Not a word; they knew we made every exertion we could to settle the account, and we could not suppose they would trifle with us, when they knew we made every exertion, and the occasion was so very important.

Mr. John Wigglesworth cross-examined by

Mr. Scott.

When you requested Mr. Bembridge to answer the observations, he told you, you must in future, communicate with Mr. Powell, that he had nothing to do with it, but under his directions?—Yes.

In consequence of that you afterwards went to Mr. Powell?-Yes; and in conscquence, after that, transacted the business with Mr. Powell,

And went no more to Mr. Bembridge about it?-No.

You said you made every exertion you possibly could?-Yes.

One of those exertions was letting the book lie at the pay-office from the 30th of November till the 11th of January, then you sent for it, and found it to have been in your office some time?-We had completed the business in our office, as far as we could go, and had got the account almost ready for the declaration; the declaration was to take place after Christmas, a few hours would complete the business. On the 10th of January at night, we sat about the account to complete it, then we wanted to look into the book to see whether those two articles were inserted.

How long had it been in your office before it was discovered that it was there?—I believe, eight or ten days.

During those eight or ten days you did not choose to be alarmed with those items they had thought proper to put in?-Could we suppose that, after so long a time, they

should have sent into the office an additional Did it come back to the auditor's-officecharge of 48,000l. without giving us any It did. notice of it?

When it came back again, was it in the How came you to let it lie so long ?-We same state in which it went? had a multiplicity of business.

Lord Mansfield. Do not ask to that again; A multiplicity of business is an excuse in the thing is so clear, you may as well ask if the auditor's-office, but not in the pay-office? the sun shines at noon? -We had several accounts of the pay-office Do you know the hand-writing in which making out at that time.

these additional entries, amounting to 48,000. Mr. Gibbs sworn.—Examined by Mr. Cowper. writing of Mr. Colborne, clerk to the ac

are made ?-Yes; I believe it to be the handYou are a clerk in the auditor's-office !

-countant. Yes.

Who was the accountant at that time? Do you remember Mr. Colborne at any Lord Mansfield. It has been proved that time, and when, bringing back the book to the defendant was. the auditor's-office?

I remember the fact very well, and it is only by a circumstance Mr. William Plasted cross-examined by Mr.

Scott. that I recollect the day, as I did not at that time make any memorandum of the day, but You spoke of the penciled balance; who the circumstances are very strong that cause struck that ?-It was in the book when it me to recollect that it was on a Saturday, came to me, but I do not know who wrote it. and must have been the 4th of January; Mr. Sol. Gen. The pay-office books are it was at about a quarter or half an hour necessary to be produced, to show that all after 3 o'clock that Mr. Colborne came, he the articles, which make this great surcharge, brought the book of account that is now the are entered in the books of the office, to subject of contest, he brought it after the which, of course, Mr. Bembridge must have usual office hour, which is 3 o'clock; Mr. had access. Colborne desired particularly

Lord Munsfield. That is material, call a Mr. Bearcroft. What he said surely cannot witness that has made the examination. be evidence; bring us the book.

Mr. Sol. Gen. I will ask Mr. Chamberlayne Lord Mansfeld. Certainly it cannot. They that general question, for he has examined may examine Mr. Colborne.

every article. Mr. Cowper. However, the fact is, he left

William Chamberlayne, esq. sworn. the book with you!-He did, with a parti

Esa

mined by Mr. Solicitor General, çular desire that the auditor

Mr. Bearcroft. You must not mention what You have examined the books of the payhe said.

office with the account that you have in your Mr. William Plasted sworn.—Examined by stitute the 20,0251. 198.5!d, I have examined

hand?—Excepting the four sums, which conMr. Wilson.

all the sums in the books of the pay-office, I believe you are a clerk in the auditor's and find it correspond in the account; as to office?-I am.

the four sums which compose the articles of Do you remember lord Holland's account 20,0251. 19s. 54d. they consist of a vast being brought to the auditor's-office, with a variety of small sums, which constitute the balance struck in pencil ?-Yes.

whole, which are contained in the ledger, I Lord Mansfield. Do you examine any more suppose; I confess, that after having dipped to that?

into the ledger, from time to time, as to those Mr. Wilson. This gentleman was employed small sums, that I did not look into every to examine the account, were you not?-Yes; one of them. I was.

Mr. Bearcroft. When did you examine What did you observe ?–There was a this?-About seven or eight days ago. pencil balance struck, it was inserted balance Mr. Sol. Gen. Mr. Bearcroft, I suppose you 65; I found a difference of three farthings and will allow that, without our going throug a halfpenny, which the pay-master had the books? charged himself too much; I applied to Mr. Mr. Bearcroft. No; use your own pleasure Colborne, and told him, that unless he altered Mr. Sol. Gen. Then we must produce the those sums, our balance could not agree; he books. said it was of no consequence, and struck it Lord Mansfield. Why, have you not go out. In two or three days after, in farther enough already, when you have proved se examining the surplus, I found an error of many thousand pounds! You show it clearl9001, and odd, owing to a wrong computation with respect to 20,0001., the rest are smal of the guilders; I sbowed Mr. Colborne how | items that are not worth while.- Don't keethat was.

us here for hours longer than it is neces Lord Mansfield. What does this signify? I sary; do not see what use you can make of this. Mr. Chamberlayne. The first article is, a

Mr. Wilson. Did the book go back to the to the account of Mr. who is the deputy pay-office after that time-It did,

paymaster at New-York.

George Rose, esq. sworn.-Examined by Mr. Solicitor General.

I believe you were secretary to the Treasury in the months of December and January last?

Mr. Bearcroft. I shall not make it an objection, because I know it is not a legal one, if they do not prove every sum, for it is all under a videlicet.

Mr. Sol. Gen. My lord, I will now prove the warrant to pay Mr. Bembridge-I was. 2,650l., for doing this very business.

[A warrant under the king's sign-manual, dated St. James's, May 1st. 1781, addressed to lord Mountstuart and lord Sondes, was read, which directed, among other things, that there should be allowed for fees, &c. in making up their accounts--To the accountantgeneral, Charles Bembridge, esq. 2,6501.

To the accountant-general's clerk, Mr. John Colborne 500l.

Mr. Charles Bembridge's receipt for the 2,6507., which was at the end of the warrant, was likewise read.]

Mr. Sol. Gen. I will now call Mr. Molleson to prove the examination, upon oath, of Mr. Bembridge, before the commissioners of account, on the 22d of March, 1781; the material article for which I produce it, is, that Mr. Bembridge there says, that he carries on, and makes up the account of the paymasters after they are out of office, as well as the paymaster's in office.

Mr. Molleson sworn. Examined by Mr.

Baldwin.

You are, I believe, secretary to the commissioners of account?-I am.

Do you remember Mr. Bembridge being examined upon oath, before the commissioners of account?-Yes, very well.

Mr. Baldwin. Please to produce a copy of the examination.

Mr. Molleson produced the examination of Charles Bembridge, esq. taken on the 20th and 22nd of March, 1781.

"This examinant saith, that he carries on and makes up the accounts of the pay'masters after they are out of office, as well as those of the paymasters in office.'-Then he goes on to say,The only obstacle to 'the adjustment of the late lord Holland's accounts, is a dispute relative to the balance ' in the hands of Mr. [Robert] Paris Taylor, 'who was one of his deputies."

'An examination of Mr. Bembridge, taken from the 16th of May, to the 18th of July, 1781. This examinant saith, that he has 'been accountant for the paymaster-general, 'from March, 1776, and has been in the 'pay-office above twenty years.'

Lord Mansfield. That is proved already. Mr. Sol. Gen. to Mr. Hughes. You know what is the practice and usage at the pay-office, with respect to making out the accounts of a paymaster who goes out of his office either before or after Midsummer-day; in what manner are the accounts settled with respect to him? Lord Mansfield. How does that bear? Mr. Sol. Gen. It is an allegation in the information.

Mr. Bearcroft. I admit it.

About what time was it that the defendant, Mr. Bembridge, was before the board of treasury upon the subject of any omission in his account?-I believe, a clerk from the treasury attends with the minutes in my own handwriting; I would rather speak from those minutes.

Mr. Bearcroft. You must use them as memorandums.

Lord Mansfield. For dates especially. [Mr. Rose refers to his minutes.] When was Mr. Bembridge asked about the omission which constitutes this charge?-On the 15th of February, 1783.

Please to inform my lord and the jury, whether those articles, which constitute this balance of 48,000l. being stated to him; whether he said any thing about his having known or having been ignorant of them an tecedent to the time of their being entered in the account?-Mr. Bembridge admitted at the board of treasury at which I was present, cles in the voluntary charge, making fortythat he was perfectly apprized of those artieight thousand odd pounds, long previous to the penciled balance, as they call it at the auditors-office, being drawn out; I then asked him how he came not to see that they were inserted in that account; he said, that he left it to Mr. Powell, who had been accountant. before him, to make up the account. I then asked him if he was not aware that it was his duty, as accountant, to see that all the articles, which ought to be brought in charge against the pay-master, were included in the account; he admitted that he knew it was his duty; Í then asked him, if it did not occur to him to be peculiarly improper to devolve upon the person accounting that check, which the constitution of the office had vested in him; he answered, it did not. In the course of the examination, Mr. Bembridge had mentioned, as the gentleman had done before him, in the same examination, that he did not consider the account as final. Upon being asked, why?-he mentioned a dispute still subsisting between Paris Taylor, and the executor of my lord Holland; but it was admitted that that account had nothing to do with any one of those articles in the voluntary charge; I asked, repeatedly, whether that dispute between Paris Taylor and my lord Holland's executor, had any thing to do with those articles, and could justify keeping back those articles; it was admitted, it had nothing to do with them at all.

Did any thing pass between Mr. Bembridge and you upon this occasion, with respect to those articles, or any of them, being of that nature, that it was at all doubtful in his mind, whether they ought or not to have been in

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