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community, in exempting them, to a considerable degree, from attendance as witnesses, to prove facts, which the parties respectively know, and ought never to dispute, and would not dispute, if they were put to their oaths. To effect this object, it should seem necessary, to perniit the examination beforehand, that the admission of the party may save the necessity of a witness. But if the examination be once had, we would not permit it to be repeated, else it might become the means of annoyance.
When a party has called his adversary to be sworn as a witness, the testimony ought to be deemed evidence in the cause, in the same manner, as the deposition of any other witness, and if the examining party will not use it, the party examined should be permitted to do so.
A doubt has arisen under the law of the last session whether the party, called by his adversary, to testify upon a single point, may be examined on his own behalf, as to all the points in the cause. We think it the true construction of the act, that he may, and that if the construction were otherwise, the law should be changed. The principle upon which we would regulate the matter is this, that if a party make a witness of his adversary, he should be regarded, as another witness would be regarded. If a witness be produced, though but to a single point, he is made, by the production, a general witness in the cause. So we think it is, and should be, with a party made witness.
It would not be safe, to limit the evidence, to the precise enquiry of the examining party, as that night do the party examined injustice; for instance, if he should be asked whether he had borrowed money of the plaintiff, he might be obliged to answer, that he had, but it would be unjust, to require him to answer that question, and prohibit him from testifying to the further fact, that he had afterwards paid it. Where, also, there are several causes of action prosecuted together, if a party be called by his opponent, to testify as to one, he becomes a witness for himself as to all. To remove this difficulty, and with a view also to encourage the examination of parties, we pro
pose to allow the examining party to controvert, by his own oath, any testimony which the other may give, not responsive to the questions put to him. It is but just, that if the party examined, go beyond the point, to which he is examined by his adversary, his testimony shall not go uncontradicted, by the party who called bim. The tendency of our age, is to look for the truth wherever it may be found. Let us not fear, that judges and juries will be deluded into a belief of an im probable or untrue story, though the parties themselves be the persons who utter it.
EXAMINATION OF WITNESSES.
SECTION 351. No witness to be excluded by reason of interest.
352. Nor by reason of sentence for felony.
: Proceedings to examine witness out of his county.
$ 351. No person offered as a witness, shall be excluded, by reason of his interest in the event of the action. But this section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended.
$ 352. No person offered as a witness, shall be excluded, by reason of a sentence for felony.
The abrogation of the rule, which excludes a witnesss, who has an interest in the event of the action, has been frequently proposed and discussed in this state. We think the time has come for effecting it.
The rule appears to us to rest upon a principle altogether unsourd; that is, that the situation of the witness will tempt him to perjury. The reason strikes at the foundation of buman testimony. The only just enquiry is this; whether the chances of obtaining the truth, are greater from the admission or the exclusion of the witness. Who that has any respect for the society, in which he lives, can doubt, that, upon ihis principle, the witness should be admitted?
The contrary rule implies, that, in the majority of instances, men are so corrupted by their interest, that they will perjure themselves for it, and that besides being corrur t, they will be so adroit, as to deceive courts and juries. This is contrary to all experience. In the great majority of instances the witnesses are honest, however much interested, and in most cases of dishonesty the falsehood of the testimony is detected, and deceives none.
Absolutely to exclude an interested witness, is therefore as unsound in theory, as it is inconsistent in practice. It is inconsistent, because the law admits witnesses, far more likely to be biased in favor of the party, than he who bas merely a pecuniary interest. A father may testify for his son; a child living with his father and dependent upon his bounty, may appear as his witness, nay, as his only witness, without question. Is the immediate gain of a dollar, by the result of a cause, so potent to outweigh integrity, while affection, consanguinity, dependence, are put down as dust in the balance?
There is not another rule in the law of evidence so prolific of disputes, uncertainties, and delays, as that, we are considering. Not a circuit is held, but question after question is raised upon it; nor a term where exceptions growing out of it, are not debaled.
Some of the foregoing reasons, apply also to the exclusion of a person, sentence:l for felony. It is wiser, we cannot doubt, to place the witness on the stand, and let the jury judge of his testimony.
England has outstripped us in this most necessary reform. Five years ago, an act of parliament obliterated the rule from the laws of that country.
The following is the material part of the act of the Eng'ish parliament, to which we refer :
AN ACT for improving the law of evidence.
22ND August, 1843. “ Whereas, the enquiry after truth in courts of justice, is often obstructed by incapacities, created by the present laws, and it is desirable, that full information as to the facts in issue, both in criminal, and in civil cases, should be laid before the persons, who are appointed to decide upon them, and that such persons should exercise their judgment, on the credit of the witnesses adduced, and on the truth of their testimony, now therefore, be it enacted, by the Queen's most excellent majesty, by and with the advice and consent of the lords spritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that no person offered as a witness, shall hereafter be excluded, by reason of incapacity from crime or interest, from giving evidence, either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, acticn, or proceeding, civil, or criminal, in any court, or before any judge, jury, sheriff and coroner, magistrale, officer, or person having, by law, or by consent of parties, authority to hear, receive, and examine evidence; but that every person, so offered, may and shall be admitted,to give evidence on oath, or solemn affirmation, in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest, in the matter in question, or in the event of the trial, or of any issue, matter, ques. tion or inquiry, or of the suit, action or proceeding in which he is offered as a witness, and notwithstanding that such person, offered as a witness, may have been previously convicted of any crime or offence: Provided that this act shall not render competent any party to any suit, action or proceeding individually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person, in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively: Piovided also,” &c.
This statuie is termed Lord Denman's Act, from having originated with the present Chief Justice of England. Lori Brougham has spoken of it, in the following language :
"This is certainly the greatest measure that has been carried under the head of judicial procedure, since the statute of frauds, that is, since the restoration. It places the law of evidence at length upon a rational footing, and makes its provisions consistent with themselves. It protects judges and juries and parties, from the miscarriages, heretofore constantly produced, by the exclusion of important testimony ; wisely opening the door to the witness, but reserving the estimate of his credit and the value of his evidence, to those who are to judge the cause. It also sweeps away the numberless nice and subtle distinctions in which the profession was wont to luxuriate; disencumbers our jurisprudence of a heavy load of useless decisions, resting upon refinements and not principles, and abridges the trial of causes, by shutting out those debates, that used daily to arise upon the admission of proofs, which the common sense of mankind at once pronounced should be received, and which the law itself did receive in other instances, not distinguishable by the naked eye of plain reason. There have been few greater improvements in our judicial system, than those which are efficted by this valuable statute."
$ 353. No person shall be obliged to attend as a witness before any court or judge, out of the county where the witness resides, or is served with process for his attendance.
$ 354. Whenever either party desires the exanination of a witness out of the county, where the trial is to be had, he may apply to a judge of the court for an order to examine such witness. Whereupon the judge, on due proof, to his satisfaction, of the materiality of the witness, may make an order for his examination, at a specified time and place, before the county judge of the coun