Boyle v Wiseman
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1855 |
| Date | 19 June 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 598
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 C. L. R. 482; 24 L J Ex. 160, 19 Jur. 115, 3 W. R 206: new trial ordered, 11 11 Ex. 360
[647] boyle v. wiseman. Jan. 23, 1855-A party to a suit, who is subpoenaed as a witness, cannot object to be sworn and examined, on the ground that the only relevant questions which could be put to him are such as would tend to criminate himself; but the opposite party has a right to insist on his being sworn and examined, and he must, if he thinks fit, claim his privilege not to answer such questions.-It is no ground for admitting secondary evidence of the contents of a private letter, that the person who has possession of the letter is beyond the jurisdiction of the Court, and has refused to deliver it up when requested by a person who did not disclose the purpose for which it was wanted -Semble, per Pollock, C B, that the rules of law, as to admitting secondary evidence of the contents of public documents, apply also to commercial instruments and other documents which are the indicia of property. [S. C. 3 C. L. R. 483 ; 24 L J Ex. 160, 19 Jur. 115, 3 W. R 206 : new trial oidered, 11 Ex. 360] Declaration for libel. Plea, not guilty. At the trial, before Pollock, C. B, at the last Surrey Assizes, it appeared that the action was brought by the plaintiff, a Roman Catholic priest, to recover damages for a libel ob him alleged to have been written by the defendant, who was a Roman Catholic Archbishop and Cardinal The libel had been published in a French newspaper called the Unneis, and afterwards in two English newspapers, called the Catholic Statidaid (b) The following affidavit, made by one of the defendants, was afterwards filed. "That, in May, 1854, the plaintiff was the owner of certain land, buildings, chemical works, machinery, utensils, stock in trade and materials, situate at Prestdlyn, in the county of Kent. That, in June, 1854, the defendants, through Messrs. Water-house, brokers in Liverpool, agreed to purchase from the plaintiff the said land, buildings, chemical works, machinery, utensils, slock in trade, and materials; and that the baid brokers were employed to make the contract for sale and purchase thereof. That the contract was made by bought and sold notes, dated the 2nd of June, 1854 ; and that, by the mistake of the brokers, the [646] bought and sold notes were so worded as not to include the stock in trade and materials, which were intended and understood by the plaintiff and the defendants to be included in the sale and purchase. That, shortly after the contract was made, namely, on or about the 7th of June, 1854, the plirintiff, through his agent, voluntarily delivered to the defendants the possession of the said lands, buildings, chemical works, machinery, utensils, stock in trade, and materials, which stock in trade and materials included certain quantities of coal, salt, and lead, lying on the premises. That, on or about the 18th of July, 1854, the plaintiff first made a claim on the defendants for the sum of 2311. 8s. 7cl, the alleged value of the said coal, salt, and lead, which claim was and still is denied by the defendants, on the ground that the said coal, salt, and lead formed part of the pui chase. That, owing to many difficulties and delays arising from the defective state of the plaintiff's title to the said land, buildings, and chemical works, the purchase was not completed until the 9th of November, 1854, when the completion was made without prejudice to the defence to this action That the plaintiff is unjustly availing himself of what was a mere mistake in the bought and sold notes , and this deponent is advised and believes that the defendants have just ground to traverse the several matters proposed to be traversed by them , and that the matters sought to be pleaded by the -defendants as an equitable defence are true in substance and in fact." 10 EX 618. BOYLE V. WISEMAN 599 and the Tabht, and it purported to be an answer to a letter published in a French newspaper called the L Aim tie la Religion of \\hich the Abbe Cognat was editoi. For the purpose of proving that the defendant was the writer of the libel, the plaintiff called as a witness the Rev. H. Ivers, a Roman Catholic priest, who deposed, that, bhoitly before the trial, he went to Paiis, and there saw in the possession of the Abbe Cognat a letter (a) in the handwriting of the defendant, the contents of which he was prepaied to give from memory , that he asked the Abbe Cognat to let him have the letter in order to bring it to England, but the Abbe refused. The plaintiff's counsel thereupon proposed to give secondary evidence of the contents of the letter ; but the learned Judge ruled that such evidence was inadmissible The plaintiffs counsel tken called the defendant himself, who had been subpoenaed ; but his counsel objected to his being sworn, on the ground that any questions put to him would tend to criminate himself. The learned Judge then asked the plaintiff's counsel what questions he proposed to put; but he declined to mention them, insisting on [648J his light to have the defendant sworn and examined The learned Judge refused to allow it; and, being of opinion that there was no case for the jury, the plaintiff was nonsuited. Edwin James in the following term, obtained a rule nisi for a new trial, on the grounds, first, that secondary evidence of the letter had been improperly rejected, and secondly, that the Judge ought to have allowed the defendant to be sworn and examined. He cited Taylor on Evidence, s 323 ; Ahvon v. Fwmval (1 C. M. & R. 377), Sayer v. Glossop (2 Exch. 409), The Attoiney Geneml v. HcuUojf (10 Exch. 84), [Paike, B., referred to Hunter v. Leathley (10 B. & C. 858) Alderson, B , to Marston v. Downes (6 Car. & P. 381) ] Shee, Serjt. Bramwell, and Badeley shewed cause First. Secondary evidence of the contents of the letter in question was not admissible. There is no authority or principle to warrant its reception. The rule of law is, that the best evidence must be given which the nature of the case will admit of , and secondary evidence is not receivable, unless it appears that all means have been exhausted to obtain primary evidence If that has not been done, a presumption arises that the party does not produce the best evidence, because it is against him There are three, or perhaps four, cases in which secondary evidence of a written document is admissible first, where the document is lost; secondly, where it is destroyed , thirdly, where it is in the possession of a privileged party, who refuses to produce it; and fourthly, refusal by a non-privileged person. The latter has, indeed, been held no ground for admitting secondary evidence : Eegina v. The Itthafatanti, of Llanfaethly (2 E & B. 940) , but the reason given is not satisfactory, namely, that the party may be punished for his disobedience. It is now proposed to add another case, viz where a private [649] document is in the possession of a person beyond the jurisdiction of the Court, who refuses to produce it on request of any third party The person asking for this letter was wholly unconnected with the proceedings, and had no legal or moral right to demand it [Parke, B. The question is, whether all reasonable efforts have been made to obtain...
To continue reading
Request your trial
-
DPP v Conroy
...The People v. Conmey [1975] I.R. 341. The State v. Treanor [1924] 2 I.R. 193. Bartlett v. Smith (1843) 11 M. & W. 483. Boyle v. Wiseman (1856) 11 Ex. 360. R. v. Chan Wei Keung [1967] 2 A.C. 160; [1967] 2 W.L.R. 552; [1967] 1 All E.R. 948. R. v. Brinkley [1984] N.I. 48 (Note). Ajodha v. The ......
- The State v Gobin and Griffith
-
Azzopardi v R
...[ 172 ER 944]. 156Dixon v Vale (1824) 1 C & P 278 [ 171 ER 1195]; East v Chapman (1827) 2 C & P 570 [ 172 ER 259]. 157Boyle v Wiseman (1855) 10 Ex 647 at 651 [ 156 ER 598 at 600]; Bartlett v Lewis (1862) 12 CB(NS) 249 at 260 [ 142 ER 1139 at 1143]; R v Kops (1893) 14 LR (NSW) 150 at 158R v ......
- C v T
-
Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials
...accept admissible hearsay evidenceof authenticity: Watson vDPP [2006] EWHC 3429 (Admin) at [15].160 Cf. RvBoyle (1855) 11 Ex 360 at 367, 156 ER 870.161 For example, Rvde la Motte (1781) Proceedings of the Old Bailey Ref: t17810711-1.162 Cf.JCS vR(2006) 164 A Crim R 1 at [69]–[71]. Proof of ......
-
Subject Index
...Friern Hospital ManagementCommittee [1957]1 WLR 582,QB . . . 103, 111Bourjaily vUnited States 483US 171 . . . . . . .284Boyle v Wiseman (1855) 10 Ex 647, 156 ER 598. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .293Boyle v Wiseman (1855) 11 Ex 360 . 277, 281, 282Brđ......