theory would entirely defeat the intention of the legislature in the several statutes which have from *time to time been passed to [*773 regulate costs.] There seems to be some diversity of opinion amongst the Judges on this subject at the present day. In Kilmore v. Abdoolah, 27 Law J., Exch. 307, the jury having given a verdict for 51. in an action for an assault and false imprisonment, expressly upon the supposition that it would carry costs, the Court of Exchequer refused to grant a new trial. Pollock, C. B., there says,-"There is no reason why the jury should not be informed, if they ask it, as it is a part of the law: but, if they do not ask it, and they have given their verdict, it cannot be disturbed merely because they did not know of it." It is true, that Bramwell, B., in that case says that the jury had no right to give a verdict with reference to anything else than the injury sustained by the plaintiff. But there can be no valid objection to their being informed as to what the law is. In a very recent case, Wakelin . Morris, 2 Fost. & Fin. 26, it being proposed to ask the plaintiff's attorney, on cross-examination, in an action for slander, as to what would be the probable cost to the defendant if the verdict went. against him even for nominal damages, the question was objected to as. irrelevant. But Erle, C. J., admitted it, saying," I do not know on what ground I can exclude it." And, at the close of the summing up, the jury having asked what sum would carry costs, his Lordship. observed, "I am not aware that there is anything to preclude mytelling you: but the liability to costs depends upon various statutory enactments which it is not easy always to carry accurately in mind,. and the answer might mislead you." [WILLES, J.-The attorney was called for the purpose of proving his mercy to the defendant. The object of the learned counsel's question was, to show that this apparent mercy was real cruelty.](a)

*Huddleston, Q. C., and H. James were not called upon to support the rule.

[*774

WILLIAMS, J.—I am of opinion that this rule should be made absolute. The verdict of the jury here professes to be founded upon something more than the view which they took of the amount of damages which the plaintiff had sustained from the injury she complained of: and the question is whether it is apparent, that, in assessing the damages in respect of that injury, the jury have acted contrary to their duty. I am of opinion that it does, and that the verdict ought not to be allowed to stand. Looking at the facts which appear upon the report of the learned Judge who tried the cause, I am clearly of opinion that the damages are excessive, and that it is impossible to come to any other conclusion than that the jury measured the damages they awarded to the plaintiff, not with reference to the injury which the plaintiff had sustained, but solely with reference to whether she should have her costs or not. There must therefore be a new trial.

WILLES, J.-I am of the same opinion. Whether the plaintiff was to have costs or not, was clearly a matter which was to be decided by the Court, and not by the jury. It is idle to say that to take the consideration of the costs from the jury is an usurpation on the part of the Court, because the very last statutory provision upon the subject,

(a) In that case the plaintiff had a verdict for 18.

C. B. N. S., VOL. XII.-29

the 34th section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, expressly enacts, that "when the plaintiff in any action for an alleged wrong in any of the superior Courts recovers by the verdict of a jury less than 5l., he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues tried, or judgment passed by default, in case the Judge or presiding officer *before whom *775] such verdict is obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought." The legislature there in express terms says that it is the Judge and not the jury who shall have the power of deciding whether or not the plaintiff shall have costs. Here, the jury were made to suppose that they were the proper persons to decide the question of costs,-a thing which it was wholly incompetent to them to do. It is most important that the province of the Judge and that of the jury should be kept distinct. I do not agree with Mr. Powell that every man is to be presumed to know the law. I admit that "ignorantia juris non excusat."(a) It would be absurd indeed to suppose that even the most experienced Judge knows the statute law upon all subjects, without looking into the books.(b) I think it would lead to a most inconvenient inequality in the administration of the law, if the question of costs were in any shape left to the consideration of the jury. I cannot entertain the slightest doubt upon the subject.

KEATING, J.-I am quite of the same opinon. To give effect to the argument of Mr. Powell would be to transfer to the jury that which the legislature has emphatically said shall be the province of the Judge. Rule absolute.

(a) 1 Co. Rep. 177. "Ignorantia juris, quod quisque scire tenetur, neminem excusat." 2 Co. Rep. 3 b.

(b) "Ignorantia judicis est calamitas innocentis." 2 Inst. 591.

*776]

*HENMAN v. LESTER.

June 27.

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 had resisted, and upon which he had given evidence, and the jury had notwithstanding found their verdict for the then plaintiff.

It was objected by the defendant's counsel that the questions relating to the contents of public judicial proceedings, which must be in 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. (dissentiente Byles, J.), that the ruling was correct.

THE first count of the declaration charged the defendant with 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 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 the 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 not 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 he had given evidence, and the jury notwithstanding found their verdict for the then plaintiff.

It was 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 *such a suit, in which he had given evidence, and that he had lost the verdict.

[*777

A verdict having been found for the plaintiff, damages 1047. 6s. 6d., H. Mills, Q. C., in Easter Term last, obtained a rule nisi for a new 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 Macdonnell v. Evans, 11 C. B. 930 (E. C. L. R. vol. 73), Whyman v. Garth, 8 Exch. 803,† Darby v. Ouseley, 1 Hurlst. & N. 1,t and The Wolverhampton New Waterworks Company . Hawksford, 5 C. B. N. S. 703 (E. C. L. R. vol. 94).

O'Malley, Q. C., and A. K. Stevenson, 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 showing his dishonest course of dealing. This rule was granted mainly upon the authority of Macdonnell v. Evans, 11 C. B. 930 (E. C. L. R. vol. 73), 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 decidendi in that case has no application here: there is no better evidence kept back. "The rule of evidence," says Jervis, C. J., "which governs this case, is applicable to all cases where witnesses. are sworn to give evidence upon the trial of an issue. That rule is, that the best evidence in the possession or power [*778 of the party must be produced. What the best evidence is, must depend upon circumstances. Generally speaking, the original document is the 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 showing any attempt made to obtain it." And Maule, J., says: 66 This seems to me 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 which gave rise to the provision in the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 24. That, however, does not affect the question now before us.] In Russell on Crimes, Vol. II., p. 927, it is said," As to questions which are asked, upon cross-examination, for the purpose of throwing discredit on a witness, and which tend merely to disgrace and degrade him, without subjecting him to a penalty or criminal charge, the authorities are conflicting on the point whether he is compellable to answer them." And at p. 931, the learned author says, "The rule which requires the best evidence to be produced of which the nature of the thing is capable, is, it should seem, in some degree relaxed in regard to cross-examination for *779] *the purpose of discrediting a witness; for, the rule is to be understood as applicable only to the proof of the issue, or some fact material to the issue. Thus, it is usual in practice to ask, in crossexamination, an accomplice or other witness who appears against a person on a criminal prosecution, whether he has not been tried for some offence; although the fact of his having been tried for such an offence is partly matter of record, and therefore, according to the general rule, not to be proved without the record, which is the highest species of proof." With regard to Darby v. Ouseley, 1 Hurlst. & N. 1, the object was to prove the question in causâ. That was not the case here. The case of The Wolverhampton New Waterworks Company . Hawksford, 5 C. B. N. S. 703 (E. C. L. R. vol. 94), is equally inapplicable. What possible objection can there be to a witness being asked whether he was plaintiff in an action and whether he lost the verdict?

Mills, Q. C., in support of the rule.-The object of the inquiry was, to discredit the witness (the defendant) by the result of a trial between himself and a third party in the County Court. The impression of the Lord Chief Baron seems to have been, that, when once a witness is in the box, you have a right to get the contents of his mind. But it is clear that the 14 & 15 Vict. c. 99, s. 2, which renders the parties to a suit competent and compellable to give evidence, has not altered the rules of evidence: Whyman v. Garth, 8 Exch. 803.† The learned Judge says, in Farrow v. Blomfield, 1 Fost. & F. 653,-"If a question arises as to the contents of a written instrument, and you can get a witness to come and swear that he heard the plaintiff say that it contained such and such expressions, that is good evidence of the contents of the document without producing it. And if the *780] *plaintiff is himself in the box, you may ask him as to the

contents of the document, and his answer will be as good evidence as

(a) The witness was asked upon cross-examination,—a letter in his own handwriting being shown to him, "Did you not write that letter in answer to a letter charging you with forgery?"

any previous statement. He may, perhaps, refer to the deed for better information, and perhaps the Judge might say that the document ought to be produced. I should do so myself in some cases.' There is much contrariety of opinion in the cases and in the textbooks on this subject,-see 1 Phillipps on Evidence, 10th edit. 434, Vol. 2, 495, 1 Starkie on Evidence 193, 2 Taylor on Evidence, § 1317. The way in which the passage cited from Russell on Crimes got into Mr. Phillipps's book, is explained by Williams, J., in his judgment in Macdonnell v. Evans, 11 C. B. 945 (E. C. L. R. vol. 73). There must be a limit to irrelevant inquiry. The 14 & 15 Vict. c. 99, does not alter the rule which requires the best evidence. The question is, whether questions having a tendency to disparage a witness may be put so as to get indirectly at that which will appear by the record in a civil action. The case of a conviction is provided for by the 25th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. Cur, adv. vult.

WILLES, J.-This case was argued before my Brothers Byles and Keating and myself: and I regret to say that the Court are not agreed. In his absence, I proceed to deliver the opinion of

BYLES, J.—In this case the plaintiff's counsel proposed to ask the defendant, when a witness under cross-examination, whether he had not brought an action in the County Court, what was the subject of the action, and what the result. The defendant's counsel objected that these questions, relating to the contents of public judicial proceedings, which must by law be *in writing, could not be asked, [*781 and that the witness was not bound to answer them. The learned Judge overruled the objection, and held that the questions were admissible, and further held (as I understood from the learned counsel) that the questions must be answered. But we are informed by the learned Judge that there was no express ruling that the witness was bound to answer.

I am of opinion that the objection of the defendant's counsel was well founded.

The question is a very important one; for, it affects the law of evidence, and therefore the daily judicial proceedings of every kind. It affects one of the principal rules of evidence, that a written document, if in existence, shall be produced, to the end that the Court may know correctly and certainly what it is, and may see the whole

of it.

Before approaching the subject, it may be observed that it can make no difference that the witness was a party to the suit. The doctrine laid down in Slatterie v. Pooley, 6 M. & W. 664,† that a parol admission of a written document is not only admissible, but may be sufficient to prove it, cannot comprehend parol admissions of the contents of written documents extorted from parties under the pressure of cross-examination. The rule in Slatterie v. Pooley was contrary to the opinion of Lord Tenterden, often expressed: and though the practice thereby introduced is sometimes highly convenient, yet it ought not to be extended. In Lawless v. Queale, 8 Irish Law Reports 385, cited by Mr. Taylor in his book on Evidence 373, Chief Justice Pennefather, who was well qualified by his character, position, and great experience, to judge how the rule might operate, as well on