would be pregnant with consequences most dangerous to justice:" upon which the Lord Chancellor varied the minutes by directing a trial at law. (a) Sir L. Shadwell, Vice Chancellor of England is said to have held that the rule against such reexamination was "now fully established, and ought under no circumstances to be departed from."(b) But in a later case, (c) after able arguments, Sir J. Leach, M. R., gave the following judgment; "The rule is well settled, that a witness who has been examined in the cause, cannot be examined again before the Master, without an order; and such order is in general accompanied with a direction that he shall not be examined upon any points with respect to which he has been previously examined in the cause; (d) for it would be too dangerous to truth and justice to afford to such a witness an opportunity of amending his testimony, when he had found, by the evidence on the other side, where the weakness of the case lay: this is the general rule-but I do not admit it to be a universal one; for there may be special circumstances, in which it becomes necessary, for the purposes of justice, to make an exception to the rule." (e) [139] When a witness has been both examined and cross-examined, On re-exami and (the depositions having been suppressed), an order has been obtained for a re-examination, the party is bound to repeat the cross-examination, as well as the examination in chief. (f) (a) [It may be observed that] Lord Brougham had then [but] very recently received the seals. (b) In Wormold v. Mackintosh, cited 1 M. & K. 545. (c) Rowley v. Adams, 1 M. & K. 545. (d) [Sed vide supra, p. 201.] (e) [As in Whitaker v. Wright, 2 Hare, 322, where the adverse cases are referred to. Although a witness on his examination in chief speak but uncertainly, yet he is not to be examined again on the same interrogatory; Inglet v. Inglet, 2 Ch. Ca. 217. In general, after publication and the depositions known, the Court will not give either side leave to examine; Cann v. Cann, 1 P. W. 727, and so in the Master's office; Willan v. Willan, 19 Ves. 590. But in one case, after publication, leave was given to exhibit an interrogatory to prove the antiquity of the handwriting in a book in the (f) Perry v. Silvester, Jac. 83. v. nation after suppression cross-examiof depositions, nation to be repeated. At Common [ 140 ] [EXAMINATIONS TO IMPEACH THE CREDIT OF WITNESSES.] There remains for our consideration a class of cases, in which an examination has been allowed, to impeach the credit of witnesses. Evidence to impeach credit is in one shape or other admitted into almost every system of jurisprudence. One of the grievances in the Star Chamber was that they would not allow it there. (a) It was at that time, and still continues, frequent in the Ecclesiastical Courts. (b) At Common Law a party may bring forward witnesses to swear that, upon the score of general character, they will not believe the oath of an adverse witness who has given his testimony, or that they have heard him at other times represent differently some fact to which he has sworn ; (c) but in the latter case the most ample notice possible must have been given to him, in his cross-examination, as to the particular points upon which witnesses are about to be called to contradict him. (d) (a) See Hudsons' Treatise, in 2 Collect. Jurid. 201. (b) The civilians allowed three probatory terms, the second to invalidate the testimony of the witnesses examined in chief in the first, and the third to restore their credit by further evidence, the maxim being, "In testem testes, et in hos, sed non datur ultra." Hinde Ch. Pr. 373, who adds, "The Court of Chancery in its primæval institution adopted nearly the same line of practice which the civilians had previously established." (c) In the Ecclesiastical Court the credit of a witness may be impeached, by shewing him to have made statements, out of Court, contrary to what he has sworn; Locke v. Denner, 1 Add. R. 360-1; and see Atkinson v. Atkinson, Add. R. 484; Chapman v. Parson, 3 Phill. R. 372. As to the character of witnesses, and at what stage in the Ecclesiastical Courts it may be inquired of, see Robins v. Wolseley, 2 Lees, 421; Chapman . Whitby, 3 Phill. R. 372; Evans v. Knight, I Add. R. 143.] (d) See these rules discus ed at great length in 1 Phil. on Ev. the latter part of ch. 8, [9th edit. p. 430, et seq.;] and see Ewer v. Ambrose, 3 B. & C. 746. [At law a witness cannot be examined as to what another witness said, on occasions other than that which is the subject of the trial; R. v. St. George, 9 C. & P. 483. What a witness has said, at other times, is only matter for the cross-examination of the witness himself; ib. Where, in order to discredit a witness, he was asked as to his language used towards his father; it was held, that on reexamination, he might be asked as to the conduct of his father towards himself; H. 488. Evidence of statements made by a witness on other occasions, relevant to the matter in issue and inconsistent with his testimony on the trial, are always admissible, whether parol or written; in the former case he must be asked whether he ever said, so and so, &c. to such a person (naming him) or under such and such circumstances, (mentioning them sufficiently to fix the occasion); in the latter, the writing must be put into his hand, and he may be asked if it is his handwriting; In Equity the different form of the proceedings causes a In Equity. considerable difference in the process of impeaching credit. There is not the same tendency to put a stop to a series of questions which are consuming the time of the Court and are often little better than irrelevant; consequently more latitude is allowed in the topics of examination. (a) And instead of requiring a cross-examination as a preliminary, the Courts of Equity require Articles, or Exceptions, to be filed, (b) and a special motion to be made upon a certificate of that having been done. (c) Articles or being filed, exceptions and motion made. Clarendon, C., Such examinations are not however encouraged in equity. [By an Order in 16 Jac. 1, of 29th of January, 1618-19, Order 1618-19. Bacon, C. Bacon, J., No. 72, "No Examination is to be had of the credit of any witness, but by special order, which is sparingly to be granted." (d)] And, by an Order of 22nd of May, 1661, Order 1661, Clarendon, C., [literally following one in 1649,]—“ The Examiner shall not examine any witnesses to invalidate the credit of any other witnesses, but by special order of the Court: but by order, sparingly which is sparingly to be granted, and upon exceptions first put granted. into writing, and filed with the Examiner, without fee, and notice thereof given to the adverse party, or his clerk, together with a true copy of the said exceptions, at the charge of the party so examining." (e) if he admits the conversation or writing, no other evidence of it need be given; Crowley v. Page, 7 C. & P. 789. Where upon cross-examination of a witness, with a view to discredit him, he was asked, if he would not swear, he had said so and so, he replied he would not swear; held, that the party could not be called to discredit him, unless he swore positively to the fact; Long v. Hitchcock, 9 C. & P. 619. Where a witness on cross-examination denies having made a particular statement, and a witness is called to prove he did, the particular words cannot be put; but the witness must be asked what passed; Hallett v. Cousins, 2 Moo. & R. 238.] (a) See Gill v. Watson, 3 Atk. 522. (b) If in a town cause, with the Examiner; if in a country cause, with the six clerk; [White v. Fussell, 19 Ves. 127; but now, with the clerk of records and writs, by Order of 26th Oct. 1842, No. 3; Sand. Ord. 916;] they are an- (c) It is not always necessary to (e) Bea. Ord. 188; [Sand. Ord. It may be as well to notice here that it is too late to move to suppress Form of the articles. [ 141 ] The form which is given in Hinde's Chancery Practice, (a) and has been copied into later works, is the following: "Articles exhibited by G. S. complainant, in a certain "cause now pending, and at issue, in the High Court "of Chancery, wherein the said G. S. is complainant, "and W. S. defendant, to discredit the testimony of "G. T., E. A., and C. A., three witnesses examined "before J. M. Esq., (b) one of the Examiners of the "said Court, on the part and behalf of the said defend "1st. The said G. S. doth charge and allege that the said "G. T. hath since his examination in the said cause, "owned and acknowledged, that he is to receive or be 66 paid, and also that he doth expect, a considerable re"ward, gratuity, recompense, or allowance, from the "said defendant, in case the said defendant recovers in "the said cause, or the said cause be determined in his "favour. And that the said G. T. is to gain or lose by "the event of the said cause. (c) "2nd. The said G. S. doth charge and allege, that the "said E. A. and C. A., are persons of bad morals, and "of evil fame and character, and that they are generally 66 reputed and esteemed so to be. And that the said "E. A. and C. A. are persons who have no regard to "the nature or consequence of an oath. And that they "are persons whose testimony is not to be credited or "believed." (d) depositions, for any irregularity, after (a) [Hinde's Ch. Pr. 374-5; and (b) Or "examined by virtue of a commission issued out of the said Court, to W. W. and others, directed for the examination of witnesses in the said cause upon certain interrogatories exhibited before them for that purpose; and which said witnesses were exa. mined in the said cause on the part and behalf of the said defendant.” (c) [Incompetency on the ground of interest, it may be observed, was always distinct from that objection to credit which is here alleged. The former objection has been almost entirely removed, by stat. 6 & 7 Vict. c. 85, vide infra, P. II. ch. 3, s. 4. But nevertheless, the objection as to credit, even the Legislature could not remove wholly; it results from the very nature of man.] (d) [So although what is called infamy, as an objection to competency, is now removed, by stat. 6 & 7 Vict. c. 85; yet, as an objection to credit it must for ever remain.] articles. The matter contained in these articles requires our consi- Matter of the deration. Lord Eldon, in Carlos v. Brook (a), said, "The Court, attending with great caution to an application to permit any witness to be examined after publication, has held, where the proposition was to examine a witness to credit, that the examination is either to be confined to general credit, that is, by producing witnesses to swear, that that person is not to be believed upon his oath; or, if you find him swearing to a matter not in issue in the cause, (and therefore not thought [142] material to the merits,) in, that case, as the witness is not produced to vary the case in evidence by testimony that relates to matters in issue, but is to speak only to the truth or want of veracity with which a witness had spoken to a fact not in issue, there is no danger in permitting him to state that such fact, not put in issue, is false; and, for the purpose of discrediting a witness, the Court has not considered itself at liberty to sanction such a proceeding as an examination, to destroy the credit of another witness, who had deposed only to points put in issue. In Purcell v. M'Namara (b), it was agreed, that after publication it was competent to examine any witness to the point, whether he would believe that man upon his oath. It is not competent, even at law, to ask the ground of that opinion: but the general question only is permitted. In that case the witness went into the history of his whole life; and as to his solvency, &c. It was not at all put in issue whether he had been insolvent, or had compounded with his creditors: but, having sworn the contrary, they proved by witnesses, that he, who had sworn to a matter not in issue, had sworn falsely in that fact; and that he had been insolvent and had compounded with his creditors; and it would be lamentable if the Court could not find means of getting at it; for he could not be indicted for perjury, though swearing falsely; the fact not being material. The rule in general cases is, that the cause is heard upon evidence given before publication; but that you may examine after publi (a) 10 Ves. 49; and see Purcell v. Macnamara, 8 Ves. 327; and Wood v. Hammerton, 9 Ves. 145; Piggot v. Croxhall, 1 S. & S. 469; [White v. Fussell, 1 V. & B. 151; S. C. 19 Ves. (b) [8 Ves. 327.] |