[231] ed on this kind of evidence, in 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 is to his discredit that he should ever have made one different. The imputation on his veracity results from the fact of his having contradicted himself, and this is not in the least controverted or explained by the evidence in question. If a witness has made a statement a hundred times in one way, and a hundred times in another way directly contrary, the only inference must be, that he is utterly destitute of all title to credit. 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 misrepre sent from some motive, of interest or relationship, &c.; there, indeed, in order to repel such an imputation, it would be proper to shew 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. was then much discussed. After the arguments of counsel on both sides, Lord Redesdale said, he bad always understood, that for the purpose of impugning the testimony of a witness, his declarations at another time might be enquired into, but not for the purpose of confirming his evidence. And the Lord chancellor expressed his decided opinion, that this was the true rule to be observed by the counsel in the cause; but considering the House as in some degree standing both in the situation of the counsel for the claimant, and of the counsel against the claimant, he was of opinion, that the question might, be properly asked by the House, though it could not be asked by the counsel on one side; but with respect to the answer to the question, it might be the subject of future considera. tion, whether it ought to stand upon the minutes as evidence. The question, respecting the former representations of Lady Berkeley, was therefore repeated by one of the Lords, and the answer entered among the minutes, subject to fu Aure revision, MS. If an attesting witness to a will or deed impeach its validity on the ground of fraud, and accuse other subscribing witnesses, who are dead, of being accomplices in the fraud, the party claiming under the instrument may give evidence of their general good character. For, if living, they might be produced as witnesses, and their character would then appear in cross-examination; and after their death an opportunity ought to be given to shew what credit is to be attached to their attestation. (1) But in a case, where a witness for the plaintiff asserts one thing, and a witness for the defendant asserts another, and direct fraud is not imputed to either, evidence to general character is not admissible. (2) A party will not be permitted to produce general evidence, to discredit his own witness. "This," says Mr. J. Buller, "would enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him."(3) The meaning of this rule is, that a party cannot prove his own witness to be of such a general bad character, as would make him anworthy of credit.(a) If he knew the infamy of his character, he was practising a fraud upon the court in producing him as a witness. But if a witness unexpectedly give evidence against the party that called him, another witness may be called to prove those facts otherwise; as where the question was, whether the defendant's servant, who had been employed to sell a horse, had warranted him sound, he swore on being called by the plaintiff, that he had not given any warranty; and Lord Ellenborough allowed the plaintiff to (1) Doe dem Walker v Stephenson, 3 Esp. N. P. C. 284. 4 Esp. N. P. C. 50; cited and approved in 1 Campb. 210. (2) Bp. of Durham v Beaumont, 1 [232] * 214 (a) So, the party first calling a witness cannot object to his testimony, that he was interested. Den d. Farrar v Hamilton, Tayl. 14. [233] call another witness to prove, that at the time of the sale he had expressly warranted its soundness. There can be no rule of law, said Lord Ellenborough, by which the truth on such an occasion is to be shut out, and Justice perverted.(1)(a) CHAP. IX. Of Bills of Exceptions, and Demurrers to Evidence. THE competency of witnesses and the admissibility of evidence are to be decided by the Judge who tries the cause, and from his judgment, there is an appeal by a bill of exceptions. At common law, a writ of error could not be brought for any error in law, which did not appear on the record; and therefore where the plaintiff or defendant alleged any thing ore tenus, which was over-ruled by the Judge, the party aggrieved had no redress. (2) To remedy this defect, it was enacted by stat. 13. Ed. 1. s. 31. " if one impleaded before any of the justices allege an exception, praying that the justices will allow it, that if they will not, and if he write the exception and require the justices to put their seals to it, the justices shall do so, and if one will not, another shall."(b) (1) Alexander v Gibson, 2 Campb. (2) 2 Inst. 426. 556. Bull. N. P. 297. (a) The indorsee of a bill of exchange, in an action against the acceptor having called a witness to prove the endorsement, who disproved it, the court permitted him to call the endorser himself to prove his own indorsement, although they refused to permit bim to call other witness. Richardson v Allen, 2 Starkie Rep. 334. (b) The New-York statute is in almost the same words. Sess. 16. c. 4. s. 6. 1 R. L. 326. In Virginia it is required that the bill of exceptions should be signed by the greater part of the justices present, 3 Hen, & Mun. 224. A bill of exceptions ought to be upon some point of law, either in admitting or denying of evidence, or a challenge, or some matter of law arising upon a fact not denied, in which either party is overruled by the court; if euch bill be ten This statute extends to the plaintiff as well as the de fendant(1), and to a trial at bar as well as at nisi prius.(2) *But it has been doubted, whether it extends to criminal cases. Lord Coke, in his exposition of the statute, states that it extends to all actions, real, personal, and mixed; but of criminal cases he makes no mention. In the case of Sir H. Vane(3), who was tried for high trea son, the Court refused to sign a bill of exceptions, "because," they said, "criminal cases were not within the (1) 2 Inst. 427. (2) Thurston v Statford, 3 Salk. 155. Adm. per Cur. in Duchess of Grafton v Holt, Skin. 354. R. v Smith, 2 Show, 287, contra. (3) I Lev. 68.; Kel. 15 S. C. 1 Sid. 85. S. C. *215 dered and the exceptions in it are truly stated, then the justices ought to set their seal, in testimony that such exceptions were taken at the trial; but if the bill contain matters false, or untruly stated, or matters wherein they were not overruled, they are not obliged to affix the seal. A bill of exceptions is not to draw the whole matter in examination again, it is only for a single point, and the truth of it can never be doubted after the bill is sealed, for the adverse party is concluded from averring the contrary, or supplying an omission in it. Bridgman & Holt, Show. Par. Ca. 120. Bac. Abr. Bill of Exceptions. Graham v Cammann, 2 Caines' Rep. 168. 5 Johns. Rep. 467. 8 Johns. Rep. 507. All discussions must be confined to, and no notice can be taken of, matter not appearing on the face of the bill of exceptions. 8 East 280. 2 Dall 38. 422. n. 2 Binney 168. A bill of exceptions will lie to the opinion of the judge in his charge to the jury. Smith v Carrington, 4 Cranch 63. The exception must be insisted on at the trial, and is waived by delay; the statute indeed appoints no time, but the nature and reason of the thing requires the exception should be reduced to writing when taken and disallowed; not that it need be drawn up in form; but the substance must be reduced to writing while the thing is transacting, because it is to become a record. Wright v Sharp, 1 Salk. 288. Sikes v Ransom, 6 Johns. Rep. 279. Gardner v Baillie, 1 Bos. & Pul. 32. A bill of exceptions tendered after the jury have returned into court with their verdict, but before it is deliv ered, is in season to any exception to the charge of the judge, but not as to any question of evidence arising at the trial. Lanuse v Barker, 10 Johns Rep. 312. Jones ▾ Insurance Company of North America, 4 Dall 249. S. C. 1 Binney 38. If an instrument in writing be stated in a bill of exceptions to have been offered in evidence at the trial, and no objection appears to have been made to the proof of its execution, it is to be presumed to have heen duly proved or admitted. Newlin v Newlin, I S. & Ranles 275. Where the sole question, on a bill of excep tions from an inferior court, turns upon the competency of a witness produced to testify, to a fact, which was fully proved upon the trial by other witnesses, this court cannot reject the evidence as unnecessary, although the party might have waived the testimony of the witness who was objected to, and the court below would have been justified in refusing to seal the bill of exceptions. Marquand v Weeb & Weeb, 16 Johns. Rep. 89. [234] statute, but only actions between party and party." From this authority Mr. Serjt. Hawkins infers only, that a bill of exceptions is not allowable on an indictment for treason or felony.(1) "Whether a bili is not in any criminal case," said Lord Hardwicke, "is a point not settled."(2) It was allowed in the case of the King against Lord Paget and others, on an indictment for a trespass(3), and also on an information in the nature of a quo warranto.(4) But Lord Hardwicke, in the case before referred to, after saying " that he had known a bill of exceptions allowed in information in the Court of Exchequer, which are civil suits for the king's debt," added, "it has never been determined to lie in nere criminal proceedings in other courts."(5) A bill of exceptions cannot be allowed by the justices of the peace at the quarter sessions on the hearing of an appeal against an order of removal.(6) (a) It can be used only on a writ of error, and therefore where a writ of error will not lie, there cannot be a bill of exceptions.(7) (b) A demurrer to evidence is a proceeding, by which the judges, whose province it is to determine questions of law, are called upon to declare what the law is upon (1) Pl. Cr. b. 2. c. 46. s. 210. (2) R. v lahabitants of Preston, Rep. temp. Hard. 251. (3) 1 Leon. 5. (4) R. v Higgins and others, I Ventr. 366. (5) Rep. temp. Hard. 251. R. v Stratton and others, Howell's Coll. St. Tr. 21. vol. 1187. (6) See (1) (4) In all cases of appeals to the sessions from an order of justices, no bill of exceptions lies. Sweet v Overseers of Clinton, 3 Johns. Rep. 23. (b) By a statute of the state of New York, sess. 36. c. 3. s. 4. 1 R. L. 319., a bill of exceptions upon issues in the Supreme Court is to be returned at the next term by the justice, who puts his seal thereto as a witness, and the Supreme Court shall give judgment to allow or disallow the exception, and may grant a new trial in their discretion, and the bill of exceptions and judgment thereon being made matter of record, a writ of error may be brought. |