or questions as to his own inferences from, or personal opinion of, facts. This rule, and the exception to it in the case of skilled or scientific witnesses, was considered in the sixth chapter of the first part of this treatise; and it is sufficient in this place to refer to it. THE RIGHT OF A PARTY TO DISCREDIT HIS OWN 66 The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 22), determines the conditions under which a party to a civil proceeding may contradict by other evidence the statement of a witness who has proved unexpectedly adverse to the party who calls him. That section enacts that a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but, before such last-mentioned 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." In order that a party may have the benefit of this section, the evidence of the witness must not only be unfavourable, but hostile, to the party who calls him. In other words, the judge must hold not only that the result of the evidence is unfavourable to the party who calls the witness, but that the mode and tone in which the evidence is given indicate that the witness has a hostile feeling towards the party who has called him, believing the witness to be friendly (g). The two statements need not be directly contradictory (h). The above enactment, by section 103 of the Common Law Procedure Act, 1854, extends to every civil court in England and Ireland: and by the Criminal Evidence and Practice Amendment Act, 1862, a similar provision is made as to criminal cases (i). A substantially identical provision is contained in the 30th section of the Indian Act II. of 1855. Where a prisoner calls a witness who criminates another prisoner, the latter has a right to cross-examine. But it is doubtful whether the latter has such a right when the evidence is not criminatory (j). In equity a witness may be contradicted under the above section before an examiner (k). THE CROSS-EXAMINATION. When a witness has been examined in chief by the party who calls him, the opposite party, or his counsel, has a right to cross-examine him. This right is discretionary, and when the examination in chief has resulted in clear, conclusive, or unimpeachable evidence, it will be prudent for the adverse party not to claim his privilege; for cross-examination in such a (g) Greenhough v. Eccles, 5 C. B. N. S. 786. (j) R. v. Burdett, Dears. 431. (k) Buckley v. Cooke, 1 K. & J. 29. case, instead of weakening the evidence, generally strengthens and confirms it. So, where the adverse party does not dispute the truth of his opponent's case, but relies on a justification or an excuse, he will not think it desirable, generally, to cross-examine a wit ness. As the object of the examination in chief is to lay all the material evidence of a case before the court, so the object of cross-examination is to impeach the accuracy, credibility and general value of that evidence; to sift, detect and expose discrepancies, or to elicit suppressed facts, which weaken or qualify the case of the examining party, and support the case of the cross-examining party. It is therefore, generally, a rule that on cross-examination an adverse witness may be asked leading questions (7). The reason for excluding leading questions on the examination in chief, on which the witness is generally favourable to the examiner, does not usually apply to cross-examination, on which the witness is as generally hostile to the cross-examiner. Accordingly, on cross-examination, a witness may be asked in direct words as to the truth or falsehood of a matter which bears substantially on the issue. Thus, in debt for goods, when the defence is an unexpired term of credit, a witness who proves the sale and the debt could not properly be asked whether he sold a particular description of goods to the defendant at a certain price, and for present payment; but he should be asked separately whether he sold any goods at all, and, if so, what they were, and what were the terms (1) R. v. Hardy, 24 How. St. Tr. 755. of payment. But on cross-examination he might be asked about the goods specifically and by name, and whether it was not understood between the parties that the purchaser was to have a specific time, such as a year, of credit. But the rule under consideration appears to be, and is practically, subject to the restriction that a witness, even on cross-examination, can be asked leading questions only if he be, or appear to be, adverse to the cross-examiner; and where the witness appears to be favourable to him, the court will sometimes, and even frequently, not suffer even a cross-examiner to lead his opponent's witness. Thus, on Hardy's trial, a witness for the prosecution, on evincing a favourable disposition towards the prisoner, was asked by his counsel whether, at a meeting, certain persons had not used certain specified expressions which, if uttered, would have been favourable to the defence. But the court held that in such a case counsel could not put words into the witness's mouth; and Buller, J., said: "You may lead a witness upon a cross-examination to bring him directly to the point as to the answer; but you cannot go the length of putting into the witness's mouth the very words which he is to echo back again" (m). In examining in chief, the object of the party should be to elicit from the witness all the material facts which he is called to prove, and to take especial care that the witness does not stand down before the latter has proved that part of the case which he is expected to prove. Generally, it is desirable and proper to ask (m) 24 How. St. Tr. 659. him only such questions as will confine him to the matter in issue, and such as will elicit his own personal and independent account of it. Unless he deviate into hearsay or other inadmissible kinds of evidence, or unless he ramble into utterly irrelevant matters, it is always the right, as it is generally the prudent, course not to interrupt a witness when examining him in chief. If he be hostile or dishonest, a more stringent style of examination may be adopted; but if he be favourable, or even adverse, but honest, a party will seldom lose anything by suffering a witness to give his own ungarbled version of a circumstance; and such a course will always be most satisfactory to the court, and most conducive to the administration of justice. In criminal cases, especially where a prisoner is not defended, it is the practice, and probably the duty, of a prosecuting counsel, to ask a witness questions which are favourable in their object to the prisoner; for the duty of a prosecuting counsel is to lay all material evidence impartially before the court, and not to press a conviction. In all such cases, and in cross-examination as on the examination in chief, the court will exercise its discretion as to how far it is desirable and consistent with the ends of justice to allow a question to be put in a leading form. It has been stated, however, by Alderson, B., that the right to lead on cross-examination exists whether the witness be favourable or not (n). Great latitude is allowed in the questions which a party is permitted and entitled to ask on cross-exami (n) Parker v. Moon, 7 C. & P. 408. |