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[Privy Council..]
Present: Earl Lorebum, Lord Atkinson, and Sir Arthur Channel.
May 14, 1918. Delivered by Eabl Loreburn:—
This appeal is upon questions of fact, and nothing but questionsof fact. It was necessary for the learned Judges below to ascertainwhether there was a warranty of horse power, and whether therewas a warranty of fitness to do specific work, and whether therewas a breach of either or both warranties. In reality the case,which was voluminous in point of evidence, largely depended uponthe truth or falsity of statements that were made by the witnesseslor tne plaintiffs and defendant respectively. It was upon thedecision on that subject that the trial really turned, because thesecond warranty depended upon it, and if the second warrantywas established, then the first could hardly be denied. Also, thismatter has a bearing on the dispute whether there were any breachesof the contract or not. It overshadowed the whole case, and theirLordships agree with the Judge of first instance that the wholefabric of the respondents’ case would fail, unless the truth of whattheir witnesses said was made good. Now, the learned Judge offirst instance took, as well as did the Court of Appeal in Ceylon, avery serious view in regard to this controversy about veracity;they thought it was a case of deliberate falsity on one side or theother; that there was not room for misapprehension, or for the sortof error that leads to erroneous statements. Accordingly, in thosecircumstances, immense importance attaches, not only to thedemeanour of the witnesses, but also in the course of the trial andthe general impression left on the mind of the Judge present, whosaw and noted everything that took place in regard to what was
G. Colombo, 35,186.
Appeal on a question of fact—Veracityof witnesses—Ruleguiding Court
of Appeal.
Where the controversyisaboutveracity of witnesses, immense
importance attaches, notonlytothe demeanour ofthe witnesses,
but also to the course ofthetrial,and the generalimpression left
on the mind of the Judge of first instance, who saw and noted every-thing that took place in regard to what, was said by one or otherwitness. It is rare that a decision of a Judge of first instance upona point of fact purely is over-ruled by a Court of Appeal.
HE judgment of the Supreme Court is reported in 18 N. L. B.
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said by one or other witness. It is rare that a decision of a Judgeso express, so explicit, upon a point of fact purely, is over-ruled by aCourt of Appeal, because Courts of Appeal recognize the pricelessadvantage which a Judge of first instance has in matters of thatkind, as contrasted with any Judge of a Court of Appeal, who canonly learn from paper or from narrative of those who were present.It is very rare that, in questions of veracity so direct and so specificas these, a Court of Appeal will over-rule a Judge of first instance.Was this such a case? The Court of Appeal in Ceylon thought thatit was- That is not the opinion which their Lordships have arrivedat. The grounds on which the Court of Appeal reversed the learnedJudge have been scrutinized here and examined. Their Lordshipsare not able to agree with the conclusion of the Court of Appeal.On the contrary, there is a great deal of material, to which attentionhas been drawn, which decidedly tends to corroborate the learnedJudge’s opinion. That opinion is decided, strong, and unequivocal.It throws, as has been said before, a light upon the whole case, andaffects every branch of the issues that were tried.
Their Lordships will, therefore, humbly advise His Majesty thatthe appeal ought to be allowed, with costs, and that the decree ofthe learned Judge of first instance ought to be restored.
Fradd B. BrouA Co., Ltd.
Appeal allowed.