Ling v Croker
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1857 |
| Date | 12 June 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 615
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
C. B. (N. S.)760. LING V. CHOKER 615 [760] ling v. croker. June 12th, 1857. Upon a motion for a new trial in an action of crim. con., on the ground of surprise, -Semble, that the affidavit of the plaintiff's wife cannot be received for any purpose. This was an action for criminal conversation, tried before Willes, J., at sittings at Westminster after last Hilary Term, when the jury returned a verdict for the plaintiff, damages 10001. Edwin James, Q. C., in Easter Term last, moved for a new trial, upon affidavits tending to impeach the propriety of the conclusion which the jury came to upon the subject of the handwriting of certain letters of a most disgusting character which were produced on the part of the defendant, and which were alleged to have been written by the plaintiff, whilst in the Crimea, to his wife; and also on the ground that the damages were excessive. [Willes, J. Have you any affidavit of surprise,-that the genuineness of the letters was disputed.at the trial? I must confess I thought the evidence as to the handwriting was most unsatisfactory.] There is no affidavit of surprise according to the strict technical rule; but that can be supplied. The letters were, it seems, handed by the lady to the defendant's attorney as the genuine letters of her husband; and he had no reason to doubt that they were so. We have also her affidavit on the subject. [Cresswell, J. We cannot look at the wife's affidavit (a)1. Willes, J. The affidavits of the parties can at best only be received for the purpose of excluding conclusions.] If the wife's affidavit were offered for the purpose of a denial of the alleged adulterous intercourse, one could perceive the force of the objection : but here it relates to a collateral and independent fact. [Cresswell, J. That can make no differ-[761]-ence.J It is somewhat singular, that, in these cases, the law excludes the only persons who can give direct evidence. [Cockburn, C. J. It was thought expedient by the legislature to exclude them (a)2, on the ground of the public scandal that would result from allowing them to be examined. Before we grant a rule on the ground of surprise, we must be satisfied that there are legitimate materials to justify a further investigation of the matter.] There is abundant evidence upon the affidavits which steers clear of the difficulty. The learned counsel read several...
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