1842.

SUTHERLAND

v.

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.

crim. con. the

marriage was proved to have been solem

nized at the

office of the British consu

The plaintiff had been married to his wife at the office of late at Beyrout,

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.

FF 2

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, whether 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.

1842.

Second Sitting at Westminster in Trinity Term, 1842.

BEFORE BARON PARKE.

June 5th.

A person who

is sued as an executor, and who pleads plene administravit, only admits thereby that he is executor de son tort;

and an executor de son tort is not liable to the amount of

of the testator that would pass

by a will, but only for the

amount of as

sets that come

to his hands.

YARDLEY and Another v. ARNOLD the Younger, Executor of ARNOLD the Elder.

DEBT

against the defendant, as executor of his father, for five quarters' rent of premises demised by the plaintiffs to the defendant's father.

Pleas-first, except as to the sum of 21. 19s. 6d., plene administravit; second, as to the sum of 117., payment of it by the defendant's father in his lifetime; third, as to the sum of 21. 19s. 6d., payment of it into Court.

Replication to the first plea, that the defendant had not fully administered; to the second, a denial of the payment of 117.; and to the third, an acceptance of the sum of

21. 19s. 6d. in satisfaction of so much of the plaintiffs' demand.

A. was sued as executor of his father, and pleaded plene administravit. It appeared that the father left no will, and was the owner of a leasehold house, and that A., after his father's death, had received some small sums which had been due to his father, and had paid the expenses of his father's funeral:-Held, that A. was not liable for the value of the leasehold house, and was only liable to the extent of the sums he had actually received, against which he had a right to deduct reasonable funeral expenses.

The usual allowance for funeral expenses to be paid from an insolvent estate, is £20. In an action against a person sued as executor of A., in which plene administravit is pleaded, and in which no evidence has been given as to how A. has disposed of his property, or even that he left any will, the widow of A. is not a competent witness for the defendant: and this is not a case in which the witness can be rendered competent by indorsing her name on the record under the stat. 3 & 4 Will. 4, c. 42, ss. 26, 27.

If a witness is sworn in chief, but has not been asked any question in his examination in chief, it is not too late to take an objection to his competency, on the ground of interest, and such an objection is not confined to examinations on the voir dire.

A., being sued as executor de son tort of his father, claimed certain goods under a deed of assignment from his father to himself, the consideration whereof was stated in the deed to be a debt due from his father to him, and to prove that the deed was not fraudulent, it was proposed by A.'s counsel to go into evidence to shew that A.'s father really owed A. money :-Held, that, for this purpose, what A.'s father said to A. or in A.'s presence, as to his owing A. money, was receivable in evidence, as it was proof of an account stated between them, but that what A.'s father said on the subject, in the absence of A., was not receivable in evidence, as that would be merely an admission by A.'s father under whom A. claimed, but under whom the plaintiff did not claim.