bills, converting the money to his own use, because he comes after and pays bills after he hath negociated with D'Acosta, what colour is there in the act of parliament to excuse them? not one word in any act but when they are brought to the office on a branch of the revenue, but this will not extend to a receiver's purchas

to buy them. The first clause was answered by Mr. Attorney, it extends to the receivers of the aid in 1697.

They offer that it was beneficial to the king. It was for the king's advantage to stop the inte rest of the exchequer bills, but the exchequer bills cannot be sunk till they be paid in upon the fund from which they issued.

Mr. Conyers. The information charges three things upon Mr. Duncombe, &c.

The first is not controverted, that he did pay

bills with the money his master trusts him to receive, and bring him paper for his money, would any master bear with this? There is no difference in this case, betwixt the king and a private man, only the act makes them current in payment to the king and not to other people. It is a breach of trust for any man having money of another man's in his hands, to buying bills and making use of the king's money exchequer bills and to pay them instead of money. Little money was current till descried by act of parliament, suppose any man's servant had bought little money with his master's bills, instead of new money, it would have been an offence; this is the same case, for instead of 10,000l. in specie which carried an intrinsic value in it, he bought bills that had not the intrinsic value in them and paid them to the king. The act intended that all people indebted to the king for rent, taxes, customs, &c. might pay the king in that coin, but does not authorize ser-fraudulently of this 10,000l. 7,8847. in exchequer vants to buy up other specie, and to pay the king in that; this was Duncombe's case, he kept the king's cash and diverted the money he received in specie, brought up exchequer bills at a discount, and paid them into the exchequer in fraud of the king, and therefore we hope Mr. Duncombe will be found guilty, if the fact be with us. That it is so there is no great reason to doubt; there can be no comparison betwixt Mr. Peters and Cook; for though Cook says, Mr. Duncombe delivered them with his own hand, and told him the difference of the bills, Mr. Peters positively denies it, and makes a far more considerable figure than Cook; the thing speaks so plainly of itself, the truth must be on Mr. Peters's side; It is plain he paid them in lieu of money received in the excise, which justifies the information to be literally true; it is plain he paid them in so, and we submit it to your lordship and the jury.

Mr. Serj. Darnel. A great deal of what the defendants have said has been improperly moved at this time; they ought to have reserved that to move in arrest of judgment: we hope we shall have a verdict against them, and then they will have a time for that purpose.

The Defendant's Counsel. We hope not. Mr. Darnel. Your plea sets out and concludes, that the name is not falsely indorsed, though we prove it is, we do not charge you with the false indorsing of the day and the month, but with indorsing the name and no more. I would know what the meaning of a false indorsing of a man's name and by so many fictitious names is. It appears by all our witnesses that they took it to be indorsed as if it had been received from the excise.

Cook is falsified by one of the other two evidences in every particular, and one of them in another.

He swears Mr. Duncombe gave Mr. Peters the bills with his own hand;, Mr. Peters utterly denies it, &c.; but that we must leave the jury to judge, whether Mr. Cook falsifies Mr. Peters, or if Mr. Peters falsities Mr. Cook. The defendant's counsel justifies his receiving 10,000/. in money and paying it in exchequer

bills; it was a gain to himself and a fraud upon the king: he gains 51. per cent.; he pays but 957. per cent. which was a prejudice to the king; for if this money had come into the exchequer in specie, those that had demands upon the exchequer might have paid specie money to answer their demands. They say the ceasing of interest is beneficial to the king, bat here the king is to pay 10l. per cent. for exchequer bills instead of money that ought to have been paid into the exchequer, so that from 71. per cent. there is a loss to the king of 101. per cent. This was done at that time by one that was an officer, though not at the actual time of payment, yet he received the money when he was an officer, and next he paid those exchequer bills as if they had been reserved upon the excise, which we must leave to the judgment of your lordship and the jury upon our evidence. He brought them in three separate parcels. It is not said that some of them were actually paid into the excise as they say, but the officer actually receives and takes them as paid from the excise, and takes them particularly in his book; so that it is plain, be that took them at that time did think them paid in for excise; then as to the indorsements upon the bill that they were falsely indorsed, and done so by his directions, we have fully proved; there was no settlement at that time what rate they were to be paid at, they put first the name upon them, and afterwards what they thought proper, as D'Acosta gives evidence; So that it is plain it was a false indorsement and done by Mr. Duncombe's direction.

As to their plea from the act, fo. $84, it will not admit of any such construction as they put upon it, whatever is said of collectors and receivers it will not extend to any man that hath received the king's money to allow him to pay exchequer bills for it.

They say it hath been done by several others, but if so, it is a fault in them and no excuse to him. They are guilty perhaps, and so is be, they are all offenders upon one act of parlia ment.

Mr. Cooper. My lord, it is difficult to avoid

repetition, but I shall abuse your lordship's indulgence as little as I can. Had it been a parallel case to that of coin it would have given us light to see into the nature of this offence. But from the act read, those bills are not to be sold to supply the room of money in all cases, but at first with narrow limitations, and afterwards with limitations again; the first issued were issued upon sinking the fund, the capitation act, the 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.

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 None of these so authorized to make such to Peters's evidence; suppose what Mr. Cooper exchange; no other but those, that those provi- has said to be true, and supposing that what the Boes are made upon can make such exchange other side says gain credit with the jury that by the recited clause of the act. What a ridi- Mr. Peters be guilty, and Mr. Duncombe not culous care it would have been in the parlia-guilty in that point. If Mr. Peters took them ment 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 1,000l. 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.

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.

Judge Rooksby. As to the matter of law, if it appear that there is an offence within this information, 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 received 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 95l. 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 he 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.

Peters, a teller in the office, and were received by bim 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 paying in those exchequer bills, and asked Fern 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 not receive them, Mr. Duncombe's servant said 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 be looked all of them over, he says they were not indorsed with the day of the mouth 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 farther. Peters says it is a damage to him of 2501. 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. Duncombe 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 bis 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 bis money.

Those bills were afterwards brought to Mr.

must judge, and then he comes to Peters who supposed them to be received in the excise, and accordingly Mr. Duncombe was discharged of so much money as paid out of the excise.

he

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 might have paid it in bills received on any other account. If so, he that hath 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

405. The Trial of SPENCER COWPER,* esq. ELLIS STEPHENS, WILLIAM ROGERS, and JOHN MARSON, at Hertford Assizes, för the Murder of Mrs. Sarah Stout: 11 WILLIAM III. A. D. 1699.