case in which the Witness-Judge was only one of a bench of CHAP. IV. Judges; though propriety, in such a case, would dictate his withdrawing from the adjudication (1).

It would be equally unseemly for one whose testimony was Counsel. required as a witness to take on himself the office of a counsel, were his evidence wanted to support his own opening statement, and that evidence of a material nature.

There seems, however, though once thought otherwise, to be no absolute rule of exclusion; and there might be cases, and the more especially so perhaps where the retainer of the counsel was on the side of the defendant, in which the most fastidious need not object to discharge the double duty; particularly where the proof required was of a merely formal character, as, for example, handwriting, or the execution of a deed.

In Cobbett v. Hudson (2), it was held that a party to a suit, conducting his own cause at the trial, had a right to address the Jury as an advocate, without waiving his right to give evidence as a witness on his own behalf.

It was recently held by the High Court at Calcutta, on reference from the Small Cause Court, that the evidence of an attor ney, acting as an advocate in the case, was rightly admitted (3). A Jury-man is not precluded from giving evidence, though, Jury-man. if he have any private personal knowledge of a fact, it ought not to be simply told to his fellow Jurors. It can only be revealed by him, on oath, in the character of a witness; for which he must be duly sworn to testify; when he would of course be open to cross-examination.

The above constitute the only grounds of exclusion as regards the personal qualification of the witness.

The question has been much discussed in England whether At what stage objection to the competency of a witness must not be taken and objection to incompetency disposed of before he is sworn on the examination-in-chief, or in the to be taken."

(1) So the author of the first edition wrote (p. 138); but in a case which came subsequently before the High Court at Calcutta, a Division Bench (Norman and Mitter, JJ.), held that a Sessions Judge, in a trial before himself and a Jury, was competent to give evidence Queen v. Mukta Sing, 4 Beng. Law Reports (A. Cr.), p. 15. See however Taylor on Evidence, Vol. II, p. 1197; and Best on Evidence, p. 269; and consider how it would be possible to cross-examine the Judge. As to a Judge being disqualified, on the ground of interest, from sitting as a Judge, and his judgment being voidable, see Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, p. 759.

(2) Ellis v. Blackburn, p. 11; and see Taylor on Evidence, Vol. II, p. 1193; and Best on Evidence, p. 260.

(3) Ramlal Shaw v. Biswanath Mandal, 5 Beng. Law Reports (App.), p. 28.

CHAP. IV. case of declarants, before their declaration. In the earlier history of the English Courts, there was a preliminary examination, called the examination on the "voir dire," under which the investigation took place, on a special oath administered to the witness for the purpose. This, however, has gone into disuse; and, though where the objection is known to exist antecedently to the swearing the witness on his examination-in-chief, under ordinary circumstances that would appear to be the appropriate time for objecting, it is now considered that objection may be taken at any period of the examination at which the fact may first transpire; and, if allowed, the previous examination is struck out from the record. It has even been laid down that a party aware of the objection may lie by, without putting questions to elicit it;-a course he might not improbably or improperly adopt, unless the witness were apparently departing from truth, and the motive accordingly arose to get rid of the testimony.

The leading authority on the subject is a case of Jacobs v. Layborn (1), where Lord Abinger, Chief Baron, in delivering the judgment of the Court, thus expressed himself:

"I am of opinion that this rule ought to be made absolute. The plaintiff's counsel have furnished us with a proof of the antiquity, at least, of the practice contended for by them. They have shown that it has been recognized by the high authority of Lord King, assisted by those other learned Judges who sat with him on that occasion, and confirmed afterwards by the opinion of Lord Hardwicke, one of the greatest Judges who ever presided in this country, not only on the law, but on the reason of the law. To this I can add the testimony of my own experience, which has been of more than forty years, that, whenever a witness was discovered to be incompetent, the Judge always struck the evidence which he had given out of his notes. I have known both Lord Ellenborough and Mr. Baron Bayley erase whole pages in this way; and it was not the practice to swear the witness on the voir dire, unless specially required by the party against whom he appeared. It is a very singular thing that I do not recollect a case ever occurring before Lord Kenyon, in whose time I was in the habit of constantly attending the Courts, in which a witness was sworn on the voir dire; and it very seldom happened in the time of Lord Ellenborough, although of

(1) 11 Meeson & Welsby, p. 685.

late years the practice seems to have become more frequent. In CHAP. IV. Courts of Equity, also, it is every-day's practice to object to a witness as incompetent, whenever his incompetency appears; there is no examination on the voir dire; and it certainly may be said that the danger spoken of by the defendant's counsel in this case, of a party withholding his objection till he sees a favorable opportunity for making it, cannot arise in those Courts, as the evidence is kept secret, so that the party who would make the objection, if he could, might not know when to take it. Still the same inconvenience would exist, more or less; and it might well be said that, if a party knew of any objection to the witness, he ought to state it at once. The reason of the practice rests on this ground,-the law will not allow a verdict to stand, which has been obtained on the evidence of a person whom the rules of law have declared incompetent to give evidence. Historians and others may receive all kinds of evidence of facts, hearsay, as well as any other; but with Juries it is otherwise, for the law (whether wisely or not, it is unnecessary to discuss) excludes all testimony that it considers dangerous. Suppose, for instance, a verdict obtained on such illegal testimony were questioned by means of a bill of exceptions, would it not be set aside? There is no statute which says that the incompetency of a witness must be determined by an examination on the voir dire; when a man is examined on the voir dire, the examination is only to satisfy the conscience of the Judge, the Jury having nothing to do with it. Now a witness may, on his examination on the voir dire, appear perfectly competent; and the circumstances showing him not to be so may appear afterwards. Suppose, for instance, a man examined on the voir dire were, in answer to questions put to him, to swear distinctly that he had never been convicted of felony or perjury, he is then primâ facie competent, and is sworn in chief; but while his examination is being proceeded with, the attorney for the party against whom he appears goes away, and fetches the record of his conviction. Is not the opposite counsel to be permitted to question him anew as to that conviction? So, in any other case, I do not see why counsel should be restrained from inquiring at any moment into the witness's competency; and if they see that he is swearing falsely, excluding his testimony if they can. A counsel who knows of an objection to the competency of a witness may very fairly say 'I will lie by, and see whether he will speak the truth; if he does not, I will

140 QUALIFICATIONS AND DISQUALIFICATIONS OF WITNESSES.

CHAP. IV. exclude his evidence.' I see no hardship or injustice at all in that course. In short, there is ample authority to show that the ancient, if not universal, practice has been to allow objections of this kind to be taken as was done in this case. For the sake

Summary.

of convenience, it is the usual practice to swear him, in the first instance, to give his evidence in the cause, and the peculiar form of the oath administered on the voir dire arises from the circumstance, that the points to which the witness is about to be examined are not evidence in the cause. It may be very proper to interpolate that oath at any period of the examination of the witness that justice may require, and this consideration will reconcile all the difficulties which have been raised."

It is suggested by Mr. Taylor (1) that cases of high treason might still possibly furnish an exception to the rule thus laid down, on the principle of the list of the witnesses having been previously furnished to the accused. However we are not aware that the point has ever arisen; and the law having reduced the objection on the score of incompetence to such narrow limits, it is probably not a very important one.

In the case of a party aware of the objection, but not taking it, a new trial, even according to English law, would only be granted on this ground, if at all, under very special circumstances. The Indian Evidence Act (Section 57) removes the improper rejection or admission of evidence as any ground of new trial, should it appear to the Court that there was sufficient independent evidence to justify the decision.

Such is the personal status of the witness; such his qualification and disqualification; and it will have been seen that the recent improvements in the law, both in England and India, have thrown the door open to the admission of testimony of almost every person.

(1) Taylor on Evidence, Vol. II, p. 1195.

CHAPTER V.

ON PRIVILEGE FROM EXAMINATION.

General

THOUGH, as a general principle, a witness is bound to submit Exceptions to the Obligation himself to any course of examination, and to answer all questions to answer. put to him, there are exceptions to the obligation; and these rest Summary. partly on grounds personal to the witness, and partly on those of either a social or a public nature.

The exception on the personal ground, when existing, will be found to fall under one of three heads :

1. The assumed tendency of the examination and the answers to be elicited under it, to expose the witness either to civil liability or forfeiture, or to penal consequences ;

2. Its infraction on the proprietary rights either of the witness himself, or of some third party for whom he may be in the position of a trustee of the privilege of silence; or—

3. The disclosure of matters of confidential communication involved in the examination.

It should be added that, somewhat akin to the first ground of exception, is one which addresses itself to the protection of the witness from a course of examination in discredit of character, even when not involving any direct penal consequence; and, in a sense, no doubt, character is property, and its protection a civil right. Still it is so but indirectly only; and conceiving that this branch of the doctrine of protection may be more conveniently treated under the head of discreditive examination, we leave its discussion to that part of the work in which this is dealt with (1).

I. With respect to the portion of the first head of exception Exposure to civil penalty relating to civil consequence, it has long been established, as a or forfeiture. principle of English law, and apart from the question of exposure to criminal charge, that a witness is relieved from the obligation of testifying, wherever his answer to the questions put to him might expose him even to civil penalty or forfeiture of whatsoever kind; penalty, for instance, in the shape of fine, liquidated damages or other penal obligation; forfeiture, such as that of a

(1) See post, Chapter VIII.