Sittings in London in Trinity Term, 1842. BEFORE MR. JUSTICE CRESSWELL. 1842. SUTHERLAND v. M'LAUGHlin. ASSUMPSIT. The declaration was for work and labour (not stating in what capacity), with a count upon an account stated. Plea, non assumpsit. the It was opened by Shee, Serjt., for the plaintiff, that plaintiff was a surgeon, and that the present action was brought for a compensation for his services in attending the defendant, who had had his thigh dislocated in going to Epsom races, and for which he had recovered 6007. damages against Mr. Pryor, whose carriage had occasioned the injury (a). It was proved by Mr. Souter that he had heard from the defendant that the plaintiff had attended him, and that the defendant had told him that the plaintiff's bill was 507., but that he thought it a great charge. This witness also stated, that the defendant had told him that he had recovered 6007. in the action he had brought against Mr. Pryor (b). It was also proved by Mr. Child that he was present at the trial of the action brought by the present defendant against Mr. Pryor, and that on that trial the present plaintiff was examined as a witness on behalf of the then plaintiff, who was the present defendant. (a) See the case of M'Laughlin v. Pryor, ante, p. 354. () As to the production of the nisi prius record to let in evidence of what occurred on a former trial, June 5th. The carriage of P. was driven against the carriage of M., whereby M.'s thigh was bro ken. On the trial of an ac tion of trespass by M. against P. for this, S., a surgeon, was called as a witness for M., who recovered £600 damages against P. S. afterwards brought an action against M. for his services as a surgeon in attending M. after his thigh was broken. The counsel of S. proposed to go into evidence to shew what S. stated as to the amount of his charge for at tendance on M. in giving his evidence on the trial of the action by M. against P.: -Held, that such evidence was not admissible. VOL. I. F F N. P. 1842. SUTHERLAND ข. M'LAUGHLIN. Petersdorff, for the plaintiff, proposed to ask Mr. Child what the present plaintiff said, on giving his evidence upon that trial, as to the amount of his charges for attendance on the present defendant in respect of the dislocation of his thigh. Gaselee, Serjt., for the defendant.-I submit that what the present plaintiff said on that trial is not receivable in evidence on the present trial. A party is not bound by every thing that every one whom he calls as a witness may choose to say on a trial. Shee, Serjt.-As the present plaintiff was called as a witness by the present defendant, it must be taken that what he said on that trial was said with the knowledge of the latter; and it is not simply that the present plaintiff was called as a witness by the present defendant, but the present defendant obtained the benefit of what the present plaintiff then stated by the verdict that was obtained against Mr. Pryor, and, further, it cannot be supposed that the present defendant called a witness to say what was untrue. Gaselee, Serjt.-The argument on the other side is fallacious. It is argued that this evidence is admissible because the present defendant called the present plaintiff as a witness on the former trial, and therefore is bound by all he said in giving evidence when so called; but it should be observed, that when a party calls a witness he not only cannot tell what that witness will say, but he would not be allowed to discredit the evidence of that witness, even if the evidence was the very contrary of all that he expected. CRESSWELL, J.-I think that a party cannot make evidence for himself by what he says in another cause. I think I ought not to receive the evidence. The evidence was rejected. Verdict for the plaintiff, damages 351. (a). Shee, Serjt,, and Petersdorff, for the plaintiff. Gaselee, Serjt., for the defendant. [Attornies-Edye, and Oliver.] (a) See the cases of Battersby v. Lawrence, antè, p. 277, and Little v. Oldaker, antè, p. 370. 1842. SUTHERLAND v. M'LAUGHLIN. COURT OF EXCHEQUER. Sittings in London after Michaelmas Term, 1841. BEFORE LORD ABINGER, C. B. CATHERWOOD v. CASLON. Dec. 11th. ACTION for criminal conversation with the plaintiff's In an action for wife. The writ bore date 11th December, 1840. Pleas, not guilty; and that the said Gertrude Catherwood was not at the time, &c. the wife of the plaintiff in manner and form, &c. The plaintiff had been married to his wife at the office of crim. con. the marriage was proved to have been solem nized at the office of the British consulate at Beyrout, but there was some doubt whether it had been solemnized strictly according to the rites of the Church of England: it was not solemnized according to the custom of the country in which it took place. The parties lived as husband and wife for two years afterwards :-Held, that, for the purposes of the jury's verdict, this must be considered a marriage in fact. The writ in an action for crim. con. was dated 11th December, 1840; there had been suspicious circumstances touching the conduct of the plaintiff's wife and of the defendant before that time, and they had both left this country about June, 1840. It was not shewn that they had left this country together. In August, 1841, the parties lived in open adultery in England. The judge directed the jury that they must dismiss from their minds every thing which might have occurred after the date of the writ, i. e. in and after August, 1841, and they must infer the adultery, or repudiate it, by what had happened before 11th December, 1840. 1841. CATHERWOOD V. CASLON. the British consulate at Beyrout in Syria, in March, 1834, by a missionary clergyman of the United States, one, attached to what in those states was known as the Episcopalian sect, the Church of England in this country,—and the marriage was celebrated according to the forms of the Church of England. The plaintiff and his wife went to America in 1836, and she returned to England with her children in September, 1839. An intimacy arose between the plaintiff's wife and the defendant; and it was in evidence, that, on a particular occasion in June, 1840, the plaintiff's wife dined with the defendant and his father at the father's residence; that in the evening the plaintiff's wife and the defendant went out together; that the defendant came back about ten o'clock alone; that the plaintiff's wife came back also about two hours afterwards much agitated, and remained in the house all night. Immediately after this occurrence, both the defendant and the plaintiff's wife disappeared from England, and were never heard of in this country again till August, 1841, when they were seen walking together in London, and occupied the same room in the defendant's father's house. Thesiger, to the jury.-The writ is dated 11th December, 1840, and the plaintiff must make out that the adultery was committed before that time. The evidence is, that on one occasion the plaintiff's wife slept at the house of the defendant's father in June, 1840, and that shortly after that time both the plaintiff's wife and the defendant disappeared from this country. This is no evidence that they eloped together, nor that they lived together. The fact of their being seen together again, and living together in August, 1841, cannot be considered, for that was after the issuing of the writ. The plaintiff is bound to make out that the circumstances which happened previous to December, 1840, are inconsistent with any other supposition than that of the adulterous intercourse of the parties. Lord ABINGER, C. B. (in summing up).—There are two questions here. First, whether this lady was really the plaintiff's wife. There may be a doubt whether the marriage were solemnized according to the rites of the Church of England, and whether the person officiating were a clergyman of that church; or whether, on the other hand, the marriage were lawful according to the laws of the country in which it took place. In the absence of all these various conditions, there was perhaps no valid marriage; yet, for the purpose of your verdict, the marriage must be considered as proved in fact. The next question is, as to the adultery, hether it has been proved to have occurred previously to 11th December, 1840? The circumstances which have been detailed as to the plaintiff's wife going out with the defendant at the defendant's father's house, may be looked at by you in connection with the subsequent disappearance of the two (though there is not any evidence that they eloped together); but when they came back in August, 1841, and lived together, the action had been already brought. What occurred after 11th December, 1840, cannot matter, and you should dismiss it from your minds. Verdict-Guilty. Damages, £200. Pollock, A. G., and Barstow, for plaintiff. Thesiger and Ogle, for defendant. [Attornies-C. Hyde, and H. Evans.] Afterwards the Court was moved, on the ground that the marriage was invalid; but their Lordships suspended their judgment on that point till the cases of Q. v. Carroll, and Q. v. Millis, should be decided, which were at that time under the consideration of the House of Lords. 1841. CATHERWOOD v. CASLON. |