Henman v Lester
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1862 |
| Date | 27 June 1862 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1347
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 366; 9 Jur. N. S. 601.
[776] henman v. lester. June 27th, 1862, [. C. 31 L. J. C. P. 366 ; 9 Jur. N. . 001.] In an action charging the defendant with having made a fraudulent representation as to the price which certain seedsmen in London would give for certain seed, whereby the plaintiff was induced to sell it for a lower price than he otherwise would have done, the defendant, who appeared as a witness, having, in his examination in chief, denied the alleged misrepresentation, was asked on cross-examination whether there had not been proceedings against him in a county-court at the suit of one A. in respect of a similar claim, which he has resisted, and upon which he had given evidence, and the jury had notwithstanding found their verdict for the then plaintiff.-If was objected by the defendant's counsel that the questions relating to the contents of public judicial proceedings, which must be iti writing, could not be asked, but that the record must be produced. The objection having been overruled, and the questions allowed to be put,-Held, by Willes, J., and Keating, J. (dis-sentiente Byles, J.), that the ruling was correct. The first count of the declaration charged the defendant which having made a fraudulent representation as to the price which certain seedsmen in London would give for a quantity of seed, whereby the plaintiff was induced to sell it at a much lower price than he otherwise would have done,-alleging special damage. The (a) 1 Co. Rep. 177. "Ignorantia juris, quod quisque scire tenetur, neminem excusat." 2 Co. Hep. 3 b. (b) " Ignorantia judicis est calamitus innocentis." 2 Lust, 591. 1348 HENMAN T. LRSTRR 12 0. B. (N. S.)777. declaration also contained the common counts. Pleas, amongst others, not guilty, and set-off. The cause was tried before Pollock, C. B., at the last Spring Assizes at Bedford. The defendant having, in his examination in chief, denied that he had represented to thq plaintiff that Messrs. Beck & Co., seedsmen in London, would give only a certain price for the seed in question, he was asked on cross-examination whether there had 110^ been proceedings against him in the county-court at the suit of one Agutta in respect of a similar claim, which he had resisted, and upon which hu had given evidence, and the jury notwithstanding found their verdict for the then plaintiff. It wag objected by the counsel for the defendant that the question could not be put, such evidence being inadmissible even for the purpose of testing the witness's credit, without producing or otherwise formally proving the record of the proceedings in the county-court. The learned Chief Baron overruled the objection, and the defendant's answer was, that there had been [777] such a suit, in which he had given evidence, and that he had lost the verdict. A verdict having been found for the plaintiff, damages 1041. (is. fid., H. Mills, Q. 0., in Easter Term last, obtained a rule nisi for a now trial, "on the ground of the misreception of evidence, in permitting the defendant to be asked, and compelled to answer, the questions which were put to him as to his having had a cause in the county-court, and lost it, and as to the question in issue there." He referred to Macdmmell v. Evans, 11 C. B. 9," 0, ll'hyman v. (taiilt, 8 Exch. 80;!, Darby v. Ouxeleij, 1 Hurlst. & N. 1, and The IVolm-humpton np.io tfriterworkx (fompany v. Hawkxfonl, ante, vol. v., p. 703. O'Malley, Q. C. and A. K. Htevenson, in Trinity Term, showed cause. The objection at the trial was, that what occurred in the county-court could only be proved by the production of the record. [Willes, J. The Lord Chief Baron seems to have understood the objection to point to the relevancy of the inquiry, not to the mode of proof.] The object of the inquiry was, not to establish the proceedings in the county-court, but to prejudice the witness, by shewing his dishonest ^course of dealing. This rule was granted mainly upon the authority of Macdoimell, v. Evans, 11 C. B. 930, where it was held that a witness cannot, upon cross-examination, even for the purpose of discrediting him, be asked as to the contents of a written paper which is neither produced nor its absence accounted for. The ratio decidentli in that case has no application here: there is no better evidence kept back. " The rule of evidence," says -Tends, C. J., "which governs this case, is applicable to all cases where witnesses are [778] sworn to give evidence upon the trial of an issue. That rule is, that the beat evidence in the possession or power of the party must be produced. What the bait evidence is, must depend upon circumstances. Generally speaking, the original document is ithe best evidence: but circumstances may arise in which secondary evidence of the contents may be given. In the present case, those circumstances do not exist. For anything that appeared, the defendant's counsel may have had the letter in his hand when he put the question (a). It was sought to give secondary evidence of the contents of a letter, without in any way accounting for its absence, or shewing any attempt made to obtain it." And Maule, J., says: " This seems to ma to be just the sort of case where it is sought to give secondary evidence of the contents of a document in the power of a party who does not choose to produce it." [Byles, J. That was the case...
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