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1832.

WILLIS

BERNARD.

dicative of the wife's feelings. Suppose the case of Madame Lavalette ; would her conduct in rescuing her husband from prison, have been inadmissible as evidence of her feelings towards him?] That is a strong case; but, on principle, the evidence of the particular fact ought to be rejected; for her conduct may have been occasioned by motives other than those of regard for her husband. Voltaire, no mean authority for the springs of human action, describes a lady as earnestly and successfully importuning a minister for the promotion of her husband, although her attentions were by no means confined to him alone. (a)

Tindal C. J. It seems to me that this letter was admissible for the purpose, and to the extent to which it has been admitted. It appearing on the trial, that the Plaintiff being called to England on business, had sailed accompanied by his mother, and leaving his wife in Canada, the Defendant's counsel entered on a course of cross-examination, intimating that the parties had not lived on good terms, and that the wife was offended at not being allowed to accompany her husband to England. Under these circumstances, the purpose for which the letter was offered, was to shew that the wife retained her affection for her husband, and that she was not dissatisfied at being left in Canada. Two objections were made to the reception of the letter : one, that the Court was called on to extend the decisions in favour of the admissibility of such evidence, by reading a letter from the wife to a third person; the other, that the letter contained, in addition to expressions of affection, a statement of facts which could not properly be submitted to the jury. As to the first objection, the question on which the letter was submitted to the jury, was, what

(a) Le Monde comme il va.

Vision de Babouc, circa finem.

were

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were the feelings of the wife towards her husband at the
time it was written, and whether her affections had been
alienated by her husband's departure. If a person had
been present when the letter was written, and had heard
her make declarations that she remained freely and
voluntarily in Canada, and without offence conceived
against her husband, such declarations would have been
evidence of that fact. If such declarations made by the
wife in conversation, ore tenus, would be evidence, a letter
written by her to the same effect seems less open to
objection, as being less liable to misrepresentation : and
I can see no material difference between a letter ad-
dressed to the husband, and a letter addressed to a third
person ; of the two, it may be thought the more unex-
ceptionable evidence, exempt from any imputation of
collusion; we cannot, therefore, be considered to carry
the principle farther, by admitting the wife's letter to a
third person. The second objection is, that the letter
contains statements of fact which could not with pro-
priety be submitted as evidence to a jury, and might
improperly influence their judgment. I admit that the
letter does contain statements of fact, and if it had
been used as evidence of those facts, there ought to be
a new trial. But it was produced for the purpose of
shewing the state of the wife's feelings; the jury were
cautioned that it was not to be taken as evidence of the
facts, and it contains passages abundantly sufficient to
shew the general good feeling of the wife. “I wrote yes-
terday 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 parcel.” And in the body of the letter
she says, “ 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 1832.

WILLIS

BERNARD.

the happiness or benefit of my husband.” Surely as a declaration of the wife's feelings, this was not to be excluded. No doubt it renders the administration of justice more difficult when evidence, which is offered for one purpose or person, may incidentally apply to another; but that is an infirmity to which all evidence is subject, and exclusion on such a ground would manifestly occasion greater mischief than the reception of the evidence. The rule for a new trial, therefore, must be discharged.

Park J. I do not agree with the counsel for the Defendant that nothing in this cause called for the introduction of the letter. When it had been insinuated in cross-examination that the Plaintiff had left his wife in Canada against her will, and that they were an unhappy couple, sufficient grounds existed to call for the introduction of such evidence; and it was most important to produce this letter, written before the wife's acquaintance with the Defendant commenced, and therefore clear of any imputation of collusion. The case falls exactly within the principle laid down in Trelawny v. Coleman, where letters from a wife to her husband were received in evidence; and letters from a wife to a third person are less open to exception. In Edwards v. Crock also Lord Kenyon was clearly of opinion that the wife's letters were admissible in evidence. It has been argued that in those cases the letters were received on the principle of necessity, because no other evidence could be adduced of the feeling between the parties. But the letter was equally necessary here; for the husband being beyond the sea, the wife's demeanour could not otherwise be shewn at the period immediately before her acquaintance with the Defendant. The letter, independently of the facts as to the settlement, contains a most delicate and feeling expression of conjugal affection, -" I

earnestly

1832.

WILLIS

0.

BERNARD

earnestly intreat 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.". If she had come to England, and had said this to Mr. Willis, would not such expressions have been evidence to shew the state of her affections ? I agree that it is more desirable that such part of the evidence as does not apply to the point to be proved should be withdrawn altogether from the consideration of the jury. But in many cases that is impossible; as in Manning v. Clement, 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 night give in evidence that the plaintiff's trade was illegal, although in doing this it also appeared that his bitters had been condemed in the Court of Exchequer, and that the libel was true. So in the case of prisoners; where confessions are given in evidence which unavoidably involve the mention of others besides the party confessing. But the jury are always cautioned to exclude the statement as against any but the party confessing. They also received a proper caution in this case, and, subject to that, the letter was properly admitted.

GASELEE J. I am of the same opionion. I can make no distinction between a letter to a third person, and an oral declaration of the wife, which is clearly evidence according to the decision in Trelawny v. Coleman. The date of this letter shews that it was written after the departure of the husband, and before the wife became acquainted with the Defendant; it is, therefore, most

important 1832.

important as shewing the state of the wife's feelings at a very critical period. I think that both the objections have been answered, and that the rule must be discharged.

WILLIS

BERNARD.

Alderson J. This case cannot be distinguished in principle from Trelawny v. Coleman. An objection which was made in that case, that no evidence was given to shew why the husband was absent from his wife, has been answered in this, by shewing that the husband was called to England on business ; but it was admitted in Trelawny v. Coleman, that the declarations of the wife were admissible as forming the ground of a witness' opinion as to the state of her affections. If so, why should not letters from the wife to a third person be received, especially when letters from her to her husband have been received on the same principle as conversations between them? If what the wife says is admissible to shew the way of life between her and her husband, what she writes must be equally admissible. Undoubtedly, the letter in question contains the statement of a fact which might have weight with the jury, and was not, strictly speaking, evidence. But the jury were properly cautioned on the subject, and as reasonable men, they must, after such caution, be supposed capable of rejecting what was not applicable to the question in issue. That circumstance, therefore, is no objection to the reception of the letter, and the rule which has been obtained for a new trial must be

Discharged.

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