Elizabeth Melhuish, an Infant, by John Melhuish, her Next friend, against Collier
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1850 |
| Date | 28 June 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 690
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 493; 14 Jur. 621.
[878] elizabeth melhuish, an Infant, by john melhuisk, her Next Friend, against collier. Friday, June 28th, 1850. A prochein amy, suing on behalf of an infant, is not precluded from giving evidence by stat. 6 & 7 Viet. c. 85, s. 1, as a party individually named on the record. Although the general rule is, that, on the trial of a cause, a party shall not discredit his own witness, yet, if the witness unexpectedly gives adverse evidence, the party may ask him if he has not, on a particular occasion, made a contrary statement. And the question and answer may be stated by the Judge to the jury with the rest of the evidence ; the Judge cautioning them not to infer, merely from the question, that the fact suggested by it is true. Quaere, whether, in such case, the party may contradict the witness by evidence as to such former statement. If a witness called in support of a case unexpectedly gives evidence in opposition to ib, the party calling him may go on to prove the case by other witnesses; and it will be no objection to the proof of any relevant fact that the statement of it contradicts, and thereby indirectly discredits, the first witness. The fact is relevant, though it be not part of the transaction on which the issue turns, if the truth or falsehood of it may fairly influence the belief of the jury as to the whole case. Thua, if the plaintiff's first witness denies a material fact, and states that persons connected with the plaintiff have offered him money to assert it, the plaintiff may call those persons, not only to prove the fact, but to disprove the attempt at subornation. In an action for assaulting, and thereby injuring, the plainiff, if the plaintiff's witness deposes that plaintiff, in conversation, ascribed the injury to an accident, the plaintiff may afterwards prove that, in fact, no such accident occurred. [S. C. 19 L, J. Q. B. 493; 14 Jur. 621.] Trespass for an assault and battery. Plea : not guilty. Issue thereon. On the trial, before Williams J., at the Somerset Summer Assizes, 1849, the plaintiff's counsel stated, as her case, that, at the time of the alleged assault, she was servant to the defendant: that defendant was quarrelling with his wife, and about to ill treat her: that the wife clung to the plaintiff, and defendant knocked both down ; and that, while plaintiff was on the floor, the defendant again struck her. Elizabeth Tremlett, who had been the plaintiff's fellow servant, was called as a witness on her behalf. On examination in chief she stated that, at the time in question, the defendant's wife and the plaintiff were clinging together, and, as the defendant was endeavonring to part them, the plaintiff fell over a chair: but the witness did not (a) Reported by H. Davison, Esq. 13 Q. B. 879. MELHUISH V. COLLIER 691 speak to any act of violence committed on the plaintiff [879] herself by the defendant The plaintiffs counsel then questioned the witness as in cross examination, and asked her whether ahe had not seen her master take the plaintiff by the hair. She denied this; and counsel then asked, referring to an examination of the witness before magistrates, which was attended by Mr. Burridge, the plaintiff's attorney, whether, on that occasion, she had not said that she saw it. She answered that, if she did say so, it was all lies; that she had said things which were false on that occasion ; and that John Melhuish the prochein amy, who was present at that time, had told her what to say, and had threatened to send her to gaol if she did not say so and so. She was then asked whether she did not say to the plaintiff's attorney that she had seen defendant push his wife up stairs, taking her by the shoulder and pushing her with his knee. Counsel for the defendant then objected to this course of examination, contending that the plaintiff's counsel were attempting by it to discredit their own witness. It was answered that the witness's conduct under examination made it allowable to cross examine; and that the questions were within the ordinary scope of a cross examination. It was replied that, although leading questions might be allowed under the circumstances, the kind of question now put was objectionable, both as tending to discredit the witness, and as conveying suggestions of fact which the jury might be led to believe in opposition to her present testimony, though, if she denied them, the plaintiff would not be at liberty to contradict her by calling Burridge. The learned Jndge, after conferring with Cresswell J., ruled that the questions might be put, not to discredit but to remind the witness : atid that the inconvenience appre-[880]-hended from a suggestion of facts by the questions must be removed by cautioning the jury that the assertions supposed to have been formerly made by the witness were not to be taken as evidence of the facts. The...
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