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vote in the House of Lords; and by the twenty-third
article, all peers of Scotland are to enjoy all privileges of
peers as fully as peers of England, except the right and
privilege of sitting in the House of Lords. By an act
of the next year, 6 Ann. c. 23., the mode of electing
the sixteen peers is regulated. Proclamation is to be
issued commanding all the peers of Scotland to assemble
and meet at Edinburgh to elect, by open election, the
sixteen peers; and we have only to see whether the
Defendant did, in obedience to any such proclamation,
meet at Edinburgh for the purpose of such election. It
is not denied that he did so in 1825, 1830, and 1831.
No objection was made till the last time, and he then
voted in defiance of the protest of two of the peers; the
protest, therefore, serves rather to strengthen than to
impair his claim. However, on the validity of his title
we give no opinion; but as he performed acts which
Scotch peers are called on to perform, and which, since
the Union, were the only acts which he could perform
in the character of peer, he is entitled to the protection
of these statutes. We cannot presume that any one
would be allowed to vote who is not de facto a peer.
This Court cannot judicially notice the order of the
House of Lords that no one shall vote till his title has
been recognised by that House. We think, therefore,
that this role must be made absolute; but as it has
been obtained under circumstances of doubt, without
costs.

Rule absolute accordingly.

1831.

BRADLEY V. RICARDO.

Nov. 23.

THIS was an action against the sheriff of Gloucester- Where a party shire for a false return of nulla bona to a writ of fi. fa. being sur

prized by a At the trial the Plaintiff called the sheriff's officer to statement of to prove the receipt of the warrant to levy.

his own wit

ness, calls Upon cross-examination, the witness affirmed that no other witnesses goods could be found belonging to the party against to contradict whom the levy was directed.

him as to a

particular fact, The Plaintiff's counsel was then proceeding to prove the whole of his case by other witnesses, and to contradict the she- the testimony

of the conriff's officer as to his statement that no goods could be found, when the learned Judge who presided thought ness is not, that, if the Plaintiff were permitted to contradict a wit- therefore, to

be repudiated ness placed in the box by himself, as to a particular fact, by the Judge. the whole evidence of the witness must be struck out; upon which the Plaintiff was nonsuited.

Wilde Serjt. obtained a rule nisi to set aside the nonsuit, contending that though a party is not allowed to throw general discredit on the character of a witness called by himself, he may set him right as to any particular fact which he may have stated incorrectly, and the rest of his evidence may stand.

Ludlow Serjt. shewed cause, and relied upon Alerander v. Gibson (a), where it was held that if a witness unexpectedly gave evidence against the party calling him, although his evidence could not be in part relied upon, and the rest of it disproved, it might be entirely repudiated, and witnesses might be called on the same side to contradict him. And Lord Ellenborough said, “The (a) 2 Campb. 556.

party

1831.

BRADLEY

ARDO.

party is not to set up so much of a witness's testimony as makes for him, and to reject or disprove such part as is of a contrary tendency. But if a witness is called, and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side, and that in this manner his evidence may be entirely repudiated.” The witness was not a witness of necessity, for the fact of the receipt of the warrant might have been proved by another.

Tindal C. J. This rule must be made absolute. The object of all the laws of evidence is to bring the whole truth of a case before a jury; but if this rule were to be discharged, that would no longer be the just ground on which the principles of evidence would proceed, but we should compel the plaintiff to take singly all the chances of the tables, and to be bound by the statements of a witness whom he might call without knowing he was adversc, who might labour under a defect of memory, or be otherwise unable to make a statement on which complete reliance could be placed. Suppose a case in which, for some formal proof, the plaintiff is obliged to make a witness of the defendant's attorney, who on cross-examination makes a statement adverse to the plaintiff; is the plaintiff to be precluded from calling the witnesses whom he had prepared before to shew the real state of the case ? It has been urged as an objection, that this would be giving credit to the witness on one point after he has been discredited on another; but difficulties of the same kind occur in every Cause where a jury has to decide on conflicting testimony. The general rule is, that a party shall not be permitted to blast the character of a witness called in support of his case by adducing general evidence to his discredit; but I have never heard it said that when surprised by a statement contrary to fact, he may not call

another

another witness to shew how the fact really is. It is a 1831. common occurrence that persons called on to give their

BRADLEY testimony decline to make any statement before they appear in Court. It would be a great hardship if the RICARDO. party compelled to call such persons should be bound by every thing they may choose to say. The alteration in the general rule which the Defendant in this case seeks to establish, would lead to great inconvenience and injustice. The rule, therefore, which has been obtained for setting aside the nonsuit must be made absolute.

GASELEE J. In Alexander v. Gibson Lord Ellenborough says, “ The party is not to set up so much of a witness's testimony as makes for him, and to reject or disprove such part as is of a contrary tendency. But if a witness is called, and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side, and that in this manner his evidence may be entirely repudiated.” With deference to Lord Ellenborough, it seems to me that it is for the jury to say whether his evidence is to be entirely repudiated or not. It is going too far to determine that the party shall suffer because a witness is not consistent in his testimony. Ewer v. Ambrose (a) is in point.

BOSANQUET J. I think that this nonsuit ought to be set aside. The general rule is, that a party who calls a witness into the box is not permitted to prove generally that he is unworthy of credit, but may contradict him as to particular facts. It has been objected, however, that you cannot contradict him as to a particular fact without repudiating his evidence altogether. But the practice has always been the other way, and if there be any thing in Alexander v. Gibson in support of the

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argument

1891

BRADLEY

RICARDO.

argument virged on the ne
argument urged on the part of the Defendant, I cannot
agree in that view of the subject : it is inconsistent with
both principle and practice. A party is often compelled
to call an adverse witness; and if he, on cross examin-
ation or otherwise, makes statements inconsistent with
fact, another witness may be allowed to contradict him :
and there is no instance of a judge having been called upon
in such a case to strike out the rest of his evidence. The
discrepancy may afford a fair topic for counsel as to the
degree of credit to which the witness is entitled, but the
whole statement must go to the jury, who, in forming
their judgment, are often guided by the manner and
feelings of the witness. If he states some facts which
are adverse to the bias under which he speaks, and some
which coincide with it, the jury may, without incon-
sistency, believe the one statement and reject the other.

ALDERSON J. I am of the same opinion, and adhere to the rule as laid down in Buller's Nisi Prius. A party will not be permitted to produce general evidence to discredit his own witness. That is the true rule, and I cannot but dissent from the restriction of it which has been ascribed to Lord Ellenborough. The case cited by him, Lowe v. Jolliffe, establishes the contrary, of the proposition for which it was cited. There, all the attesting witnesses swore to the insanity of the testator when the will was executed, but they were contradicted by other evidence, and the will was established.

Now, in order to prove a will by an insane person, it must be proved, not only that the testator was insane but that the will was executed; and in that case, although the testimony was rejected as to the sanity, it was received as to the execution : that agrees with good sense and the general practice.

A party calls many witnesses; one of them states a fact adverse to his claim, another explains the state

ment:

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