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liberty to call other witnesses to contradict the testimony of the adverse witness. It was there decided also that "adverse means hostile, and not merely unfavourable, and that the inconsistent statements of the witness are only admissible where the judge considers his animus to be hostile. "A hostile witness is a witness who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the court." Coles v. Coles, L. R., 1 P. & M. 71, per Wilde, J. O.

Where a witness gave evidence quite different from the proof in the brief which had been prepared in the usual way from the previous statements of the witness to the attorney, Bramwell, B., allowed him to be examined under this section as to his previous oral statements to the attorney; and also allowed the attorney to be called to contradict him. Amstell v. Alexander, 16 L. T., N. S. 830. But in a similar case it was held that the section was not meant to apply to the loose statements made by the witness to the attorney with a view to prepare the evidence, and granted a rule nisi for a new trial, on the ground that witnesses had been called at the trial to prove such statements. Reed v. King, 30 L. T. 290, H. T. 1858, Ex. Where a witness had given contrary evidence on his examination in bankruptcy, it seems that evidence was allowed to be used to contradict him. Pound v. Wilson, 4 F. & F. 301. See also Dear v. Knight, 1 F. & F. 433. A series of letters may be used for the purpose of contradicting the witness, although one only be directly inconsistent. Jackson v. Thomason, 1 B. & S. 745; 31 L. J., Q. B. 11. The opinion of the judge at the trial as to whether the witness is hostile is conclusive. Rice v. Howard, 16 Q. B. D. 681.

It has been held that where a party calls other witnesses to contradict his own witness as to a particular fact, the whole of the testimony of the contradicted witness is not therefore to be necessarily repudiated. Bradley v. Ricardo, 8 Bing. 57. But in Faulkner v. Brine, 1 F. & F. 255, Ld. Campbell, C. J., intimated that the effect of such contradiction was to throw over the evidence of the witness altogether.

It was held that under the C. L. P. Act, 1854, s. 23, post, p. 180, it was not competent to a party to contradict his own witness by the witness's previous statements in writing. Ryberg v. Ryberg, 32 L. J., P. M. & A. 112. In this case, however, reference does not appear to have been made to sect. 22, ante, p. 173, which would have led to an opposite conclusion.

Opinion of witness, when admissible.] In general the mere opinion of a witness as to any of the facts in issue is inadmissible as evidence. But it is admissible upon questions of science. Thus where the question was, whether a bank erected to prevent the overflowing of the sea had caused the choking up of a harbour, the opinions of scientific men as to the effect of such an embankment upon the harbour were held to be admissible. Folkes v. Chadd, 3 Doug. 157. And where the question is whether a seal has been forged, seal engravers may be called to show a difference between a genuine impression and that supposed to be false. Ibid. per Lord Mansfield, C. J. So a physician, who has not seen the particular patient, may, after hearing the evidence of others at the trial, be called to testify as to the general effects of the symptoms described by them and their probable consequences in the particular case; Peake, Evid. 208; or he may be asked whether the facts proved are symptoms of insanity; R. v. M'Naghten, 10 Cl. & Fin. 200; but he cannot be asked, generally, whether, upon the evidence on the cause, he is of opinion that a party is insane or incapable of distinguishing between right and wrong; for this would leave him at liberty to find facts as well as to form an opinion on those facts, and in effect put him in the place of the jury. R. v. Frances, 4 Cox, C. C. 57;

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R. v. Layton, Id. 149. The opinion of a person conversant with the business of insurance, as to whether the communication of particular facts would have varied the terms of insurance, has been admitted in evidence on several occasions both in actions on the policy and against insurance brokers for negligence. Berthon v. Loughman, 2 Stark. 258; Rickards v. Murdock, 10 B. & C. 527; Chapman v. Walton, 10 Bing. 57. But in other cases the admission of this kind of evidence has been discountenanced. Carter v. Boehm, 1 W. Bl. 594; and in Campbell v. Rickards, 5 B. & Ad. 840, a new trial was granted because such evidence had been admitted, and it was held that the materiality of a fact concealed was a question for the jury alone, and that "witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced if the parties had acted in one way rather than another; see also Lindenau v. Desborough, 8 B. & C. 586; Westbury v. Aberdein, 2 M. & W. 267. The evidence of a shipbuilder has been admitted on a question of seaworthiness, though he was not present at the survey; Beckwith v. Sydebotham, 1 Camp. 117; Thornton v. R. Exchange Assur. Co., Peake, 25; and the opinion of a nautical witness on a question of skilful navigation, assuming the facts to be true; Fenwick v. Bell, 1 Car. & K. 312. The opinions of persons versed in the laws of a foreign country are also admissible; Chaurand v. Angerstein, Peake, 44; and see the cases on this point, ante, pp. 120, 121. Persons conversant with old MSS. may be called to speak to the date of an old writing. Tracy Peerage case, 10 Cl. & F. 154. Where the question is, as to the correct judgment of a captain in abondoning his ship, a witness may be asked the result of his personal observation of the "general habits" of the captain as to sobriety. Alcock v. R. Exchange Assur. Co., 13 Q. B. 292. To ascertain the value of a life annuity, an accountant, who stated he was conversant with the business of life assurance offices, was allowed to refer to the Carlisle Tables used by those offices, showing the expectation of life, and then state the sum required to purchase the annuity. Rowley v. L. & N. W. Ry. Co., L. R., Ex. 221, Ex. Ch.

As to calling persons skilled in handwriting to prove forgery or to establish the genuineness of ancient documents, see ante, pp. 138, et seq.

On the value to be attached to the opinions of expert witnesses, see the observations of Jessel, M. R., in Abinger, Ld. v. Ashton, L. R., 17 Eq. 373, et seq.

Memorandum to refresh witness's memory.] A witness will be allowed to refer to an entry, or memorandum, made by himself at the time of, or shortly after the occurrence of the fact to which it relates, in order to refresh his memory; although the entry or memorandum would not of itself be evidence. Kensington v. Inglis, 8 East, 289. Even a receipt on unstamped paper may be used for this purpose. Maugham v. Hubbard, 8 B. & C. 14. Nor does the use of such a memorandum by a witness make it evidence in itself. Alcock v. R. Exchange Assurance Co., supra. But he cannot refresh his memory by extracts from a book, though made by himself; Doe d. Church v. Perkins, 3 T. R. 749; nor speak from having refreshed it out of court; at least unless he produces the memorandum in court; Beech v. Jones, 5 C. B. 696; nor by a copy of a book, unless the witness himself saw the copy made and checked it at the time by personal examination while the subject was fresh in his recollection; for then the copy is, in effect, an original entry by himself. Burton v. Plummer, 2 Ad. & E. 341; Talbot de Malahide, Ld. v. Cusack, 17 Ir. C. L. R. 213, Q. B. In Burton v. Plummer, supra, a sale was proved by a clerk who

refreshed his memory from a ledger entered from a waste book, the waste book being kept by the clerk and the ledger copied by another party under the eye of the clerk. A surveyor may refer to a printed copy of a report made by himself to his employers, and compiled from his rough notes made on the spot. Horne v. Mackenzie, 6 Cl. & Fin. 628. So a witness may refresh his memory by reference to entries in a log-book, which he did not write with his own hand, but which he examined from time to time shortly after the events recorded. Burrough v. Martin, 2 Camp. 112. Where a witness, on seeing his initials affixed to an entry of payment, said, "I have no recollection that I received the money; I know nothing but by the book, but seeing my initials, I have no doubt that I received the money:" this was held sufficient evidence. Maughan v. Hubbard, ante, p. 175; R. v. S. Martin's, 2 Ad. & E. 210. A printed form of lease, read over to a tenant as the terms of his tenancy, but not signed according to Statute of Frauds, may be used to refresh the memory of the witness who read it to him. Bolton, Ld. v. Tomlin, 5 Ad. & E. 856. If the witness be blind, the paper or memorandum may be read over to him in court. Catt v. Howard, 3 Stark. 4. A witness was permitted to refesh his memory from a deposition made and signed by him, shortly after the fact to be proved, on examination before commissioners of bankrupts. Smith v. Morgan, 2 M. & Rob. 257. In this case, Tindal, C. J., permitted it to be only so far used as to refresh the memory of the witness as to the date of a single transaction, on the authority of Vaughan v. Martin, 1 Esp. 440; but it is observable that in Vaughan v. Martin, the whole account of the act of bankruptcy seems to have been read to the witness, a very aged person, who was then asked "whether the matters there stated were true?" Such an examination was also allowed to be used by a witness in like manner by Pollock, C. B., in Wood v. Cooper, 1 Car. & K. 645. The examination in both cases was taken recently after the facts, and this seems essential to the use of any memorandum or paper for refreshing memory. Whitfield v. Aland, 2 Car. & K. 1015.

Right to inspect memorandum.] Where the witness gives his evidence after having referred to a book or other document, it must be produced; Howard v. Canfield, 5 Dowl. 417; Beech v. Jones, 5 C. B. 696; and the counsel on the other side has a right to inspect it, without being bound to read it in evidence; Sinclair v. Stevenson, 1 C. & P. 582; R. v. Ramsden, 2 C. & P. 603. He may cross-examine upon the entries referred to by the witness, without making the book evidence per se for the party who produces the witness; but if he cross-examines as to other entries in the same book, he makes them part of his own evidence. Gregory v. Tavernor, 6 C. & P. 281, per Gurney, B.; Whitfield v. Aland, 2 Car. & K. 1015, Wilde, C. J. Where a paper is put into a witness's hand only to prove the handwriting, and not to refresh his memory, the opposite party is not entitled to see it. Sinclair v. Stevenson, supra; see further, post, p. 179. And where the question founded on a document handed to witness to refresh his memory wholly fails in its object, it has been considered that the opposite party is not entitled to inspection. R. v. Duncombe, 8 C. & P. 369. The reason for permitting adverse inspection seems to be to check the use of improper documents;-to secure the benefit of the witness's recollection as to the whole facts;-and to compare his oral testimony with the written statement. If it fail to refresh his memory, or is not used for that purpose, the right of inspection fails.

Cross-examination.] Upon cross-examination, counsel may lead a witness so as to bring him directly to the point in his answer; but he cannot,

if the witness shows an obvious leaning in his favour, go the length of putting into the witness's mouth the very words which he is to echo back again. Hardy's case, 24 How. St. Tr. 755. Indeed, in such a case, the usual latitude of cross-examination would perhaps not be allowed. It is not allowable for counsel, on cross-examination, to mislead the witness by assuming facts to be evidence which have not been proved, or to try to entrap him by misstatement. See cases before Abbott, C. J., Hill v. Coombe, Exeter Sp. Ass., 1818; Handley v. Ward, Lancaster Sp. Ass. 1818 (qy. 1819), cited in Stark. Ev., 4th ed. 197 (s). This is sometimes attempted in practice by handing wrong papers to a witness, in order to test his judgment in the proof of handwriting. It is not competent to counsel to question a witness concerning a fact irrelevant to the matter in issue for the mere purpose of discrediting him by calling other witnesses to disprove what he says; Spenceley v. De Willott, 7 East, 109; and should the witness answer such a question, evidence cannot be given to contradict; Harris v. Tippett, 2 Camp. 637; or to confirm his evidence. Tolman v. Johnstone, 2 F. & F. 66. See further, post, pp. 180, 181.

By Rules, 1883, O. xxxvi. r. 38, "The judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter." It would seem, however, that this rule is either in accordance with the common law rule, or is ultra vires as infringing J. Act, 1875, s. 20, ante, p. 152.

In consequence of the general rule that the contents of a written document ought to be proved by the production of it, and not by oral testimony, it was held in The Queen's case, 2 B. & B. 287 et seq., that it was not competent to ask a witness, even on cross-examination, respecting a statement formerly made by him in writing without showing to him the writing referred to, and putting it in evidence as part of the case of the cross-examining party either immediately or in the ordinary course of the cause; and this opinion of the judges has been since constantly acted upon, whether the question be put merely to discredit the witness by contradicting him, or as conducive to proof of the matter in issue. Macdonnell v. Evans, 11 C. B. 930; 21 L. J., C. P. 141.

It seems, however, that when the statement in writing is an affidavit or deposition filed in some court, the rule in The Queen's case, supra, is satisfied by the production of an examined or office copy at the trial, for in many cases, witnesses have been allowed to be cross-examined on examined or office copies of their previous depositions, and such copies have been allowed to be used to contradict them. Thus, on an issue out of Chancery, an examined copy of the deposition of one of the witnesses was allowed to be read for the purpose of contradicting the evidence of the same witness on the trial of the issue. Highfield v. Peake, M. & M. 109; Burnand v. Nerot, 1 C. & P. 578. So an examined copy of an answer, made by a defendant in Chancery, was admitted to contradict the evidence given by him in a subsequent action. Ewer v. Ambrose, 4 B. & C. 25. So an attested copy of an affidavit, made by the witness and filed in another cause, was held sufficient to contradict him, on proof being given of his identity; Garvin v. Carroll, 10 Ir. L. R. 323; and in Davies v. Davies, 9 C. & P. 252, Gurney, B., allowed a witness to be crossexamined on an office copy of his affidavit filed in the cause, a judge's order having, under the old practice, been obtained to admit it. As to the use of an office copy, now see Rules, 1883, O. xxxvii. r. 4, and observations thereon, ante, p. 97.

The only case which is cited in support of the proposition that the

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original must be shown to the witness is that of Bastard v. Smith, 10 Ad. & E. 213, 214, in which Tindal, C. J., is said, at Nisi Prius, not to have permitted a witness to be cross-examined as to the contents of his former deposition, without first refreshing his memory with the original; as, however, the original was in court, it seems clear that no attempt was made to use an office copy, and all that appears from the report of the case on the motion is, that the court would not interfere with the master's' allowance of the costs of bringing down the original deposition. This case can therefore hardly be considered as overruling the numerous cases that have been above cited where the contrary rule was followed.

In Henman v. Lester, 12 C. B., N. S. 781; 31 L. J., C. P. 366, it was held by Willes and Keating, JJ., diss. Byles, J., that a plaintiff could be asked, on cross-examination, in order to test his credit, as to proceedings taken against him in the county court, without producing the record of the court; at the trial, Pollock, C. B., had admitted the question on the broad ground that the contents of a written document might be proved by the admission of a party to the cause, whether in or out of the witnessbox; he did not, however, hold that the witness was compelled to answer the question; and the court said he could not be so compelled. In Macdonnell v. Evans, ante, p. 177, Cresswell, J., said that a witness could not be asked on cross-examination, in order to test his credit, whether he had been convicted of a crime, as that would appear by the record. This was denied by Willes and Keating, JJ., in Henman v. Lester, supra;' contra, Byles, J.

By the C. L. P. Act, 1854, s. 24, "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 so contradicting him: provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit." The effect is this. The witness, in the first instance, may be asked, whether he has made such and such a statement, without its being shown to him. Sladden v. Sergeant, 1 F. & F. 322, cor. Willes, J. If he deny that he has made it, the opposite party cannot put in the statement, without first calling his attention to it (showing it, or at least reading it, to him), and to any parts of it relied upon as a contradiction. If the witness, instead of denying that he has made the statement, admit it, although the object of the cross-examining counsel has been attained, it may be very important for the party calling the witness to have the whole statement, which may not be in his possession, before the court and jury. If he be aware of the contents, he will, it would seem, in such case, be at liberty to reexamine the witness, as to the residue of the statement, without its being produced, on the general rule that if part of any connected conversation or statement be given, the whole may be used (vide post, p. 183); or he may ask the judge, under the latter part of the section, to require the production of the writing, for the last provision of the above section was probably introduced for the purpose of guarding against an unfair use of the power of cross-examining upon a document which either has no existence in fact, or may have been only partially brought before the jury and imperfectly understood. This provision would seem, however, not intended in any way to narrow the old practice (vide ante, p. 177) as to the production of original documents filed in court, and would be sub

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