not been paid by the defendant to a third person in the same position as the plaintiff (s). So, evidence of the mode in which a party has contracted with third parties is no evidence of the mode in which he contracted with the adverse party in a similar transaction; and the latter cannot ask a witness on crossexamination as to the terms on which the party contracted with such third parties (†). Again, a witness cannot be asked as to the statement or admission of a third person to show that a liability belongs to such third person, and not to the party charged, for such evidence would be hearsay (u); but he may be asked whether such a third person is not the person to whom a credit was given, or who was dealt with as the party originally liable, and it seems that he might be asked such a question as the foregoing, in order to test his memory or credibility (f).

IMPEACHING THE CHARACTER OF A WITNESS.

In order to impeach the character of a witness, he may be asked on cross-examination whether he has committed any crime, or been guilty of other immoral conduct; but generally, if he answers in the negative, the fact cannot be proved by the crossexaminer unless it be material to the issue. In other cases the answer of the witness is conclusive (). Generally, evidence of bad character cannot be given; but an exception to this general rule in

(8) Tennant v. Hamilton, 7 C. & F. 122.
(t) Hollingham v. Head, 4 C. B., N. S. 388.
(u) Watts v. Lyons, 6 M. & G. 1047.

(x) Feret v. Hill, 15 C. B. 207.

civil proceedings was instituted by the Common Law Procedure Act, 1854, which enacts that "a witness in any cause may be questioned as to whether he has been convicted of any felony or misdemeanor; and upon being so questioned, if he either denies the fact or refuses to answer, it shall be lawful for the opposite party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for such offence, purporting to be signed. by the clerk of the court, or other officer having the custody of the records of the court where the offender was convicted, or by the deputy of such clerk or officer (for which certificate a fee of five shillings and no more shall be demanded or taken), shall upon proof of the identity of the person be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same" (y). This provision has been extended to criminal trials by the Criminal Evidence and Practice Amendment Act, 1865 (≈). It has been held that under the above quoted provision a party to a cause, who gives evidence on his own behalf, may be asked in cross-examination if he has ever been convicted of any felony or misdemeanor; and that if he denies or refuses to answer, the opposite party may prove the conviction, although the fact of the conviction may be altogether irrelevant to the matter in issue in the cause (a).

If a witness is asked on cross-examination whether he ever made a formal verbal statement, as to matters connected with the issue, different to that which he has made at the trial, and if he answers in the negative, evidence may be given that he has made such a former statement; but it is necessary to lay a foundation for such evidence by first stating to the witness all the circumstances under which he is supposed to have made such a former and contradictory statement, in order that he may have an opportunity of refreshing his memory, and explaining the discrepancy (b). In the words of Alderson, B., "a witness may be asked any question which, if answered, would qualify or contradict some previous part of that witness's testimony, given on the trial of the issue, and, if that question is put to him and answered, the opposite party may then contradict him. You may ask him any question material to the issue, and if he denies it you may prove that fact, as you are at liberty to prove any fact material to the issue" (c). This principle has also been extended by the Common Law Procedure Act, 1854, s. 23, and the Criminal Evidence and Practice Amendment Act, 1865, s. 4, which enact that, "if a witness upon cross-examination as to a former statement made by him, relative to the subject-matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but, before such

(b) Crowley v. Page, 7 C. & P. 791.
(c) Att.-Gen. v. Hitchcock, 1 Ex. 102.

proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement." A witness may be recalled for the purpose of proving an inconsistent statement made by a subsequent witness (d).

In other cases, where a witness is asked on crossexamination a question which is not material to the subject-matter of the case, and which is intended merely to impeach his veracity, it was long doubted, and is still doubtful in some measure, how far evidence can be given to contradict an answer to such immaterial matter. There are authorities both ways; but the modern doctrine appears to be that, although such evidence cannot be received to disprove a statement of the witness as to an irrelevant fact, it may be given in some cases to contradict an answer to a question which tends to impeach his general veracity.

When it is sought to impeach the veracity of a witness, evidence cannot be given of any particular acts of falsehood or dishonesty, because it is presumed that a witness does not attend prepared to rebut particular charges, nor to justify the whole course and details of his private life. A witness, therefore, who is called, as is allowable, to impeach the veracity of another witness, cannot be asked as to particular acts in the life of the impeached witness, but generally only whether he would believe

P.

(d) Sykes v. Haig, 44 L. T., N. S. 57.

K K

him on his oath (e). In such a case the party calling the impeached witness may re-establish his character by calling witnesses to his general good character (ƒ). Questions may be put to a witness which have a direct tendency to show that he is not impartial, and his answers may be contradicted by other witnesses; and therefore a witness may be asked if he has accepted a bribe, and if he denies it the acceptance of the bribe may be proved aliunde (g); but if he is asked whether he has said that he has been offered a bribe, and he denies it, evidence to contradict him is inadmissible (h).

When it is proposed to contradict a former statement in writing by a witness, the existing rule under the Common Law Procedure Act, 1854, s. 24, for courts of civil judicature, and under the Criminal Evidence and Practice Amendment Act, 1865, s. 5, for criminal courts, is the following: "A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of contradicting him; provided always, that it shall be competent for the

(e) R. v. Bropham, 4 C. & P. 392; R. v. Brown, 36 L. J., M. C. 59.

(f) Annesley v. Lord Anglesea, 17 How. St. Tr. 1430.

(g) See R. v. Langhorn, 7 How. St. Tr. 446.

(h) Att.-Gen. v. Hitchcock, 1 Ex. 91.