bound by his answer, and cannot be allowed to falsify it by evidence" (156).

107. Credit of Witnesses impeached as to their general Character.] “To impeach the credit of a witness," says Mr. J. Buller, "you can only examine to his general character, and not to particular facts; and the reason given is, that every man may be supposed capable of supporting his general character; but it is not likely he should be prepared to answer to particular facts, without notice; and unless his general character and behaviour are in issue, he has no notice" (157).

"The regular mode of examining into general character, is to inquire of the witnesses, whether they have the means of knowing the former witness's general character, and whether, from such knowledge, they would believe him on his oath. In answer to such evidence against character, the other party may cross-examine the witnesses- as to their means of knowledge, and the grounds of their opinion; or may attack their general character, and by fresh evidence, support the character of his own witness" (158).

108. Proof of contradictory, verbal, Statements made by a Witness.] "The credit of a witness may be impeached, by proof, that he has made statements out of court, on the same subject, contrary to what he swears at the trial. A letter written by him, or a deposition signed by him, may be used as evidence to contradict his testimony; the letter or deposition being first regularly proved. A conviction before a magistrate, purporting to set out the deposition of a witness, is not admissible, as proof of such deposition, to contradict the witness."

109. Cross-examination as to contradictory Declarations or Statements made by a Witness to third Persons.] "The verbal declarations or statements of a witness, made on some former occasion to a third person, are frequently given in evidence, by the party against whom the witness appears, with the view of showing, that his several accounts of the particular transaction, on which he has been examined, are inconsistent and contradictory. Before such evidence can be regularly admitted on behalf of the party, it will be necessary, in the first instance, to prepare the way for its admission, by cross-examining the witness as to the supposed contradictory statements, which are afterwards to be brought forward against him" (159).

(156) Phillipps on Evidence, vol. i, p. 270.

" With

(157) "If a witness, for example, on being questioned, whether he has not been guilty of a felony or of some infamous offence, deny the charge, the party, against whom the witness has been called, will not be allowed to prove the truth of the charge; such evidence is not admissible, either for the purpose of contradicting or of discrediting him. The point was much discussed in the late trial of Watson, for hightreason (1817); and the principle, above laid down, which had been settled long before, was again recognised and fully confirmed."—(Phillipps on Evidence, vol. i, p. 276.)

(158) Phillipps on Evidence, vol. i, p. 277.

(159) Phillipps on Evidence, vol. i, p. 278.

"With this view, the person with whom the conversation is supposed to have passed, and the particulars of the conversation on which it is intend to contradict the witness, should be distinctly suggested to the witness, before any contradiction is attempted" (160).

"The general rule," said Lord C. J. Abbott (161), "and the general practice, is this: if it be intended to bring the credit of a witness into question, by proof of any thing that he may have said or declared, touching the cause, the witness is first asked, upon cross-examination, whether or no he has said or declared that which is intended to be proved" (162).

·110. Cross-examination as to contradictory written Statements of the Witness. It was decided by the judges on a late trial (163), “That the contents of a written paper are, according to the ordinary and wellestablished rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence. The proper course, therefore, is to ask the witness whether that letter is his hand writing; if the witness admits it to be his hand-writing, the cross-examining counsel may, at his proper season, read that letter as evidence; and when the letter is produced, then the whole of the letter is made evidence. One of the reasons for the rule requiring the production of written instruments, is, in order that the court may be possessed of the whole" (164.)

"The writing, therefore, if in existence and producible, ought to be produced and shown to the witness. When it is produced, the crossexamining counsel may, if he thinks proper, show the witness only a part, or only one or more lines of the letter, and not the whole of it; and may ask the witness, whether he wrote such part, or such one or more lines. If the witness does not admit that he wrote the part shewn to him, he cannot be cross-examined as to the contents of the letter" (165). If, on the other hand, the witness should admit that he wrote the letter, still the rule with respect to cross-examining, as to the contents, is precisely the same: the counsel cannot inquire of the witness whether or not such statements are in the letter; the letter itself must be read, to show whether it contain such statements" (166).

(160) Phillipps on Evidence, vol. i, p. 278.

(161) Opinion of the judges on the late Queen's trial, p. 905, Min. of Ev. (162) Phillipps on Evidence, vol. i, p. 280.

(163) Late Queen's Trial, p. 334.

(164) Phillipps on Evidence, vol. i, p. 281.

(165) The opinion of the judges.—(Queen's Trial, p. 335.)

111.

(166) "With respect to the proper time for reading the letter, the ordinary rule. is, that it shall be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case; but if he suggests to the court, that he wishes to have the letter read immediately, in order to found certain questions upon the contents, which cannot well or effectually be done, without reading the letter itself; in that case, for the more convenient administration of justice, the letter is permitted to be read at the suggestion of counsel; still, however, it must be considered as part of the evidence of the cross-examining counsel, and subject to all the consequences of his having it so considered.”—(Opinion of the Judges on the Queen's Trial, p. 337; Phillipps on Evidence, vol. i, p. 282.)

111. Cross-examination as to a Paper Lost or Destroyed.] "If a letter, written by the witness, is proved to have been lost or destroyed, (in which case, the only mode of contradicting him would be by producing, afterwards, some secondary evidence of the contents of the letter), then it would be reasonable and proper to allow the counsel to crossexamine the witness, as to the contents of such letter" (167).

112. Re-examination as to former Statements.] " As the object of cross-examining a witness, respecting a former statement, supposed to have been made by him, is to impeach the truth and credit of his testimony; so, on the other hand, the object of the re-examination is, to give him an opportunity of showing the consistency of his statements, and of vindicating his character" (168).

"If that which the witness has stated, in answer to the question on his cross-examination, arose out of the inquiries of the person, with whom he had the conversation, the witness may be asked in the re-examination, what those inquiries were. He may also be asked what induced him to give that person the account, which he has stated in his cross-examination" (169).

General Rule as to Re-examination.] "The general rule is, that counsel have a right, upon re-examination, to ask all questions, which may appear proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also an explanation of the motive, by which the witness was induced to use those expressions; he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness" (170).

Conversations of a Party to the Suit.] "The conversations of a party to the suit, relative to the subject matter of the suit, are in themselves evidence against him in the suit, and if a counsel chooses to ask a witness as to any thing that may have been said by the adverse party, the counsel for that party has a right to lay before the court the whole that was said by his client in the same conversation" (171).

Conversations with Third Persons.] "But the conversation of a witness with a third person is not in itself evidence in the suit against any party to the suit; it becomes evidence only as it may affect the character and credit of the witness, which may be affected by his antecedent declaration, and by the motive under which he made them; but when once all that had constituted the motive and inducement, and all that may show the meaning of the words and declarations, has been laid before the court, all beyond that is irrelevant and incompetent" (172).

113. Evidence in Support of Character,]" It may be observed, in

(167) Phillipps on Evidence, vol i, p. 283. (168) Phillipps on Evidence, vol. i, p. 289. (169) Queen's Trial, p. 453, 454.

(170) See note 169.

general

(171) Phillipps on Evidence, vol. i, p. 290.

(172) Phillipps on Evidence, vol, i, p. 291.

general, that a representation without oath can scarcely be considered as any confirmation of a statement upon oath. It is the oath that confirms; and the bare assertion, that requires confirmation. The probability is, that in almost every case, the witness, who swears to certain facts at the trial, has been heard to assert the same facts before the trial; and it is not so much in support of his character, that he has given the same account, as it would be to his discredit, that he should ever have made one different. The imputation on his veracity results from his having contradicted himself, and this is not in the least controverted or explained by the evidence in question" (173).

114. A Party cannot Discredit his own Witness, by proof of Bad Character.] "A party will not be permitted to produce general evidence, to discredit his own witness. The meaning of this rule is, that a party cannot prove his own witness to be of such a general bad character, as would render him unworthy of credit. If he knew the infamy of his character, he was practising a fraud upon the court, in producing him as a witness" (174).

115. Public Written Evidence of Record.] "When the officer of the court is only entrusted with the custody of records, and is not authorized to make out a copy, he has no more authority for that purpose than a common person; and the copy must be regularly proved in

(173) Phillipps on Evidence, vol. i, p. 292. “In one point of view, a former statement by the witness appears to be admissible, in confirmation of his evidence ; and that is, where the counsel on the other side impute a design to misrepresent from some motive, of interest or relationship; there, indeed, in order to repel such an imputation, it might be proper to show, that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts."-(Ibid. p. 293.) (174) Phillipps on Evidence, vol. i, p. 293. "But if a witness unexpectedly state facts against the interest of the party that called him; another witness may be called by the same party to disprove those facts: for such facts are evidence in the cause, and the other witness is not called directly to discredit the first, but the impeachment of his credit is incidental only; and consequential. The object of such evidence is to correct some supposed mistatement, or to rectify an error; and if such evidence were to be excluded, the consequences would be most injurious to the administration of justice, as well in criminal as in civil cases." "There can be no rule of law" said Lord Ellenborough (175), "by which the truth on such an occasion is to be shut out, and justice perverted.” "It would not, however, be competent to a party, in general, to prove, that a witness who had unexpectedly given evidence against the interests of that party, has been heard at other times to make a different representation. The earlier statement, it is clear, cannot, upon any principle, be substituted as legitimate proof of the fact therein affirmed, in the place of the statement delivered upon oath in the cause. Nor does it appear to be admissible, merely for the purpose of neutralizing or destroying the effect of the latter unfavoura ble statement. A party complaining of a supposed mistatement of his witness, will always be at liberty to correct such mistatement; but this is most directly and effectually done, and in a manner most convenient for the administration of justice, by producing other evidence as to the facts or circumstances, supposed to be misrepresented."(Ibid. p. 294.)

(175) Alexander v. Gibson, 2 Camp. 556, Bull. N. P. 297.

in a strict and regular manner. A copy of a judgment, though pur porting to be examined by a clerk of the treasury, is not admissible, without proof of its having been examined; because it is no part of the necessary office of the clerk to deliver a copy; he is only entrusted to keep the records for the benefit of public perusal, and not to make out copies of them.".

116. Private Written Evidence of Record.] " If a deed enrolled be lost, a copy of the enrolment, made out by the clerk of the peace, but not proved to be examined, is not admissible" (176).`

"In an action by the pltff., to recover a moiety of the money paid by him under a verdict, which a third person had received in a suit against him and the deft., as co-defendants, the Nisi Prius record, with the postea indorsed, will be evidence of the verdict and damages in the former suit, without proof of the judgment” (177).

117. Private Written Evidence in Possession of the Parties or of third Persons.] "If writings are in the possession of a party to the suit, the other party has, in general, no means of compelling their production. In some instances, indeed, where the writing is deposited in the custody of a deft., as a trustee for all parties interested, courts of law will order him to furnish the pliff. with a copy, and produce the original at the trial."

In an action by seamen to recover wages, the deft. is compellable to produce the ship's articles; for, the contract for wages always remains in the possession of the master, and the statutes (which require a written agreement in the case of foreign voyages, and in the case of certain vessels employed in the coasting trade), expressly enacts, that, where it becomes necessary to produce the contract in court, no ob. ligation shall lie on the seamen to produce it, but on the part of the master or owners of the ship; and that no seaman shall fail, in any suit or process for the recovery of wages, for want of its production" (178)

118. Notice to produce Papers.] "If such evidence is required, the rule, both in civil and criminal cases, is to give the opposite party or his attorney a regular notice to produce the original; not, that on proof of the notice he is compellable to give evider.ce against himself, or that, if he refuses to produce the papers required, such a circumstance is to be considered as conclusive against him, but the consequence will merely be, that the other party, who has done all in his power to supply the best evidence, will be allowed to go into evidence of an inferior kind, and may read an examined copy, or give parole evidence of the contents" (179).

119. Notice to produce when dispensed with.] The rule, which re

quires,

(176) Phillipps on Evidence, vol. i, p. 368. (177) Phillipps on Evidence, vol. i, p. 369. (178) Phillipps on Evidence, vol. i, p. 419. (179) Phillipps on Evidence, vol. i, p. 421.

See also note 29, para. 2.