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1832.

ARIEL

BARROW.

lulling the Defendant into security, and obtaining an advantage which might perhaps have been refused upon a direct application. They, therefore, ordered the rule to be discharged, giving the Plaintiff, however, an option to proceed upon payment of all costs incurred by the Defendant.

Rule discharged accordingly.

May 7.

WILLIS v. BERNARD.

and

to

In an action THIS was an action for criminal conversation. At for criminal

- the trial before Tindal C. J., it appeared that the conversation, the letters of Plaintiff and his wife were residing in Upper Canada the wife to when the Plaintiff, being called by business to England, her husband

rs are left his wife in the colony, but took his mother with admissible in him. By a cross examination of the witness who proved

the above facts, the Defendant's counsel sought to inshew the state of the wife's sinuate that the Plaintiff and his wife were not on good feelings, al terms with each other, and that she felt offended at though they may also state being left in Canada alone. To counteract the possible a fact which effect of this insinuation, and to show the state of the would not strictly be evi- wiles Teemngs towa

evia wife's feelings towards her husband, the Plaintiff's dence,

counsel offered in evidence the following letter written by the wife to her husband's brother shortly after the husband sailed for England, and before her acquaintance with the Defendant had commenced.

York, U. C., July 25. 1828. My dear Mr. Willis,

" I wrote yesterday to John in a packet that was sent over by the steam boat, in order to leave New York, if possible, by the Pacific the 1st of August, but I had not time to write to you by the same packet. I am truly

glad 1832.

WILLIS

BERNARD.

ceedings of the Pt John

glad to hear that Mrs. Willis has derived benefit from
change of scene and air. As this is a letter on business,
I do not intend therefore to write on any other topic.
I wrote a letter to Mr. Whitton by John, which I am
most anxious should be delivered as soon as possible
after his arrival in England, though I fear John will not
do so, as he was quite averse to my writing it at all.
Now, my dear Mr. Willis, it is absolutely necessary
John should immediately settle all concerns with the
Messrs. Salt, therefore I am exceedingly anxious that
my trustees will transfer all or any part of the property
now in the funds in my name, to the name of John
Walpole Willis, to be applied to his use for the pay-
ment of any debts he may have incurred, so far as it
will go. I need not say to you that John's desire is to
add to any property his wife and child may have, in-.
stead of taking any part away; but the only way to in-
crease his property is to be perfectly unembarrassed in
pecuniary affairs. Should, however, the trustees be
averse to transfer the stock to John's name, there is a
plan which, as it more immediately concerns myself, I
am determined to adopt, the more so as I should ima-
gine the trustees could not offer any objection to it. As
you are aware my husband settled on me, for my sole
use, and during my life, any property I may or might
have, I propose to do this, which cannot injure any one,
but, on the contrary, will benefit us all. It is to sell
my life interest in the sum of 50001., for which, as I am
young (twenty-six in August, and I may say strong and
healthy) I should get at least 15001. or 20001. more
than the sum. I earnestly entreat you to forward this
plan as much as you can, and thus procure me one of
the greatest pleasures the money could ever afford me,
of being able to forward in any degree, however trifling,
the happiness or benefit of my husband, and I am sure
none of us can be contented until we are quite out of
Cc 3

debt.

1832.

WILLIS

BERNARD.

debt. Should this plan, which is entirely my own, and which I am determined to pursue, succeed to my wishes, the money is to be immediately paid to John to pay off all debts, so far as it is sufficient to do so. I have considered this very frequently, and still it appears to me the best means to adopt, as, at my death, should John survive me, it will still be for him and my child, and it will afford me more real gratification than I can express. John's mind, as well as my own, will be relieved of a great annoyance, and then he will be better able to exercise his talents for the benefit of himself and family. It is little I can do, and he has sacrificed much for me; but what little I can, I ought and will do, as far as I can. I have to request another favour of you, not to mention this to John until you have well considered it yourself, and consulted those you think understand the subject, and who will give unbiassed advice. My husband would, I am aware, object to it; and indeed be ought not to be subjected to my trustees' denial; and I am anxious for you to explain to them that my husband is quite ignorant of my having written this letter, and therefore I am perfectly unbiassed by his opinion or advice on this subject. Should the trustees object to this plan, I shall consider of some other means of deriving benefit from money which is now almost thrown by, as the interest is surely far too little for 50001. Excuse this troublesome office. Accept the united loves of all here, and give the same to all dear friends ; and believe me to be, my dear Mr. Willis,

“ Your's &c.,

Mary Isabella Willis.

The Defendant's counsel objected to the reception of the letter on two grounds : 1st, that it was addressed, not to the husband, but to a third person, and the de cided cases had not gone further than to admit letters

from

1832.

WILLIS

BERNARD.

from the wife to her husband; 2dly, that the wife's letter contained evidence of a particular fact; namely, the wife's offer to transfer her property to her husband, whereas, if admissible at all, it could only be received as evidence of the general state of her feelings. Trelawny v. Coleman (a), Edwards v. Crock. (6) The Chief Justice received the letter, subject to a motion to this Court; but cautioned the jury to read it only as evidence of the state of the wife's feelings; and a verdict having been found for the Plaintiff with damages,

Spankie Serjt. obtained a rule nisi for a new trial, on the ground that the above letter ought not 10 have been received in evidence.

Wilde Serjt. shewed cause. The admissibility of the evidence must be considered with reference to the point to be proved by the Plaintiff. The course of the crossexamination rendered it necessary for the Plaintiff to establish as a fact that his wife's feelings towards him were unaltered at the time her intimacy with the Defendant commenced. Now her declarations to that effect would clearly have been admissible evidence. If the declarations of the wife would be admissible, by the stronger reason are her letters, as being less open to misrepresentation. In Trelawny v. Coleman, letters written by the wife to the husband while living apart from each other, proved to have been written at the time they bore date, and when there was no reason to suspect collusion, were held to be admissible evidence. And in Edwards v. Crock, where the husband and wife necessarily, from their situations in life, lived separate, and the wife committed adultery, letters written by her to her husband during their separation, but before any suspicion of

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1882.

WILLIS

BERNARD.

misconduct in the wife, were held admissible evidence to shew that the husband and wife lived in a state of connubial affection previous to the adultery. It is immaterial whether the letters are written to the husband or to a third person And as to their containing a statement of fact, a witness, on cross-examination at least, would be allowed to state a fact on which he formed his opinion as to the feelings of the wife. But the jury were cautioned not to receive the letter as evidence of the fact; and it is no objection to a writing put in to prove a particular fact that incidentally it also proves another. In Manning v. Clement (a), where the plaintiff alleged that he carried on in an honest and lawful manner the trade of a manufacturer of bitters, and that the defendant libelled him in his trade, by publishing that the bitters were made to adulterate porter, per quod the plaintiff was ruined, it was held, that under the general issue, the defendant might give in evidence that the plaintiff's trade was illegal, although, in doing this, it also appeared that his bitters had been condemned in the Court of Exchequer, and that the libel was true.

Spankie and Storks Serjts. contrà. In Trelawny v. Coleman and Edwards v. Cruck the evidence was admitted on the ground of necessity, because the wife lived apart, and there were no other means of shewing what were her feelings towards the husband. In the present case, that proof might have been furnished by persons in whose society they had lived. Besides, this is not a letter to the husband, and a letter to a third person may be written for a purpose. At all events, the letter, as containing the statement of a fact, the surrender of property, which the jury ought not to have taken into consideration, should have been withheld from their perusal. [Alderson J. That fact was of itself in(a) 7 Bingh. 362.

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