Elizabeth Collins and Another against Bayntun
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1841 |
| Date | 15 January 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1074
IN THE COURT OF QUEEN'S BENCH.
S. C. 4 P. & D. 544; 10 L. J. Q. B. 98; 5 Jur. 530.
[117] elizabeth collins and another against bayntun. Wednesday, January 15th, 1841. Defendant, to prove that he had been in partnership with plaintiff, offered in evidence a'written contract purporting to be made by plaintiff and defendant, as partners, with K. a builder, for work to be done by K. upon the premises where plaintiff carried on the business in which defendant alleged himself to have been partner. The document was in plaintiff's custody, and produced by him on notice. Held, that the contract was not admissible without proof of the execution, as an instrument under which plaintiff claimed an interest. [S. C. 4 P. & D. 544 ; 10 L. J. Q. B. 98 ; 5 Jur. 530.] Assumpsit for money had and received, and on an account stated. Plea: non assurapsit, Issue thereon. On the trial, before Lord Denman C.J., at the sittings in London after last Michaelmas term, it appeared that, during the time in question, defendant was assisting in the business of Caleb Welch Collins, horse-hair manufacturer, in whose right the plaintiffs sued : and the defence was, that, during that period, defendant and C. W. Collins were partners, and that the monies were received on the partnership account. The defendant's counsel, in the course of their proof, offered to give in evidence a written specification or contract made between Karapster, a builder, and C. W. Collins and Bayntun, as a firm, for the building of premises in which the business of the alleged partnership was to be carried on : and they proposed to shew that work had been done by Kempster according to such contract. The document was in the custody of the plaintiffs, and was produced by them on notice from the defendant.". No proof of the execution was given; and the defendant's counsel argued that, coming from the plaintiffs, it was evidence without such proof. The Lord Chief Justice being of a contrary opinion, the contract was not put in ; and the plaintiff obtained a verdict. Jervis now moved (a) for a rule to shew cause why a new trial should not be had, on account of the rejection [118] of this evidence. It must be admitted that the mere fact of the document coming out of the plaintiffs' hands was not sufficient to make it evidence against them, though a contrary doctrine prevailed in Rex v. Middlezay (2 T. E. 41). The law on that subject, as...
To continue reading
Request your trial