Page images

stantially satisfied by the production of any copy on which a witness previously to this enactment could have been cross-examined. See 2 Taylor on Evidence, $ 1303.

We have seen, sub tit. Admissions, ante, p. 79, that if a conversation be given in evidence to prove an admission, the whole of it must generally be laid before the jury, and this if omitted may be got out by cross-examination, subject, however, to the limitation laid down hereafter under the head of Re-examination, post, p. 183; 1 Taylor, Evidence, $ 655. So if any letter, written statement, or single document be given in evidence, the opposite party may insist on having the whole read and given in evidence as part of the case of the party adducing such evidence. But this rule will not generally justify a party in insisting that separate letters or documents, or even distinct and separate parts or entries in one entire collection of documents, as letter - books, court-rolls, &c., shall all be put in evidence by the party producing and reading any one of them, unless they are on the face of them connected with the one already in evidence; and this seems to be the rule whether the documents be of a public or a private nature. Where any such separate entries or distinct parts are favourable to the opposite party, he must put them in evidence as part of his own case. Thus, though the defendant is entitled to have the whole of a particular entry in an account-book read, he cannot insist upon reading distinct entries in different parts of the book unconnected with the one read. Catt v. Howard, 3 Stark. 6. See also Remmie v. Hall, Manning's N. P. Index, 376. Where the plaintiff called for the production of defendant's letter-book, and read letters of the defendant from it, the defendant was not therefore permitted to read from it, on his own behalf, other letters not referred to in the letters read by the plaintiff. Sturge v. Buchanan, 10 Ad. & E. 598. And where a book of bankruptcy proceedings was put in to prove certain depositions for the plaintiff, tho defendant's counsel was not allowed to use other parts of the book to refresh the memory of a witness, unless he put it in as part of his own evidence. Whitfield v. Aland, 2 Car. & K. 1015, per Wilde, C. J.; Gregory v. Tavernor, 6 C. & P. 281, per Gurney, B. But the plaintiff cannot read the examination of a defendant by commissioners of bankrupt taken on one day without also reading his continued examination on another day; Smith v. Biggs, 5 Sim. 391 ; nor the cross-examination of defendant without his examination in chief; S. C. ; nor the examination in chief without the cross-examination. . Goss v. Quinton, 3 M. & Gr. 825. Where an answer in Chancery by a witness was put in only to prove his incompetency on the ground of interest, the adverse party could not thereupon read the whole in order to prove the issue. B. N. P. 238.

When a document is put into the hands of a witness under cross examination merely to prove the signature, or identity, or general nature of it, the opposite party is not entitled to immediate inspection of it, except sufficiently to enable him to re-examine about the writing, and also to identify the document in case it should afterwards be put in evidence; he may not read the docuinent through, or comment upon its contents, until it is put in on the other side, nor does it till then become evidence in the cause; but if any question be put as to its contents, or any further question be founded on it, there will be a right to inspect it. Semb. Cope v. Thames Haven Dock, 2 Car. & K. 757; Collier v. Nokes, Id. 1012; Peck v. Peck, 21 L. T., N. S. 670; H. T. 1870, C. P. See 2 Taylor, Evidence, § 1307. And, in general, mere proof of handwriting by a witness, whether on examination in chief or cross-examination, does not oblige the party to put it in evidence or entitle his opponent to use it as evidence, although its absence may, of course, be legitimate ground of comment by him. But the handwriting may of course be disputed if afterwards put in. Vide ante, p. 176.

A witness may be cross-examined as to his having omitted to mention a fact on a former examination, though that examination was in writing and not produced. Ridley v. Gyde, 1 M. & Rob. 197. As to discrediting witnesses on cross-examination, vide infra.

As to cross-examination of deponent where evidence is given by affidavit, vide post, p. 185.

Where a witness is brought into court merely for the purpose of producing a written instrument, which is to be proved by another witness, he need not be sworn; Perry v. Gibson, 1 Ad. & E. 48; and, unless sworn, the other party will not be entitled to cross-examine him. And where a person called to produce a document was sworn by mistake and was asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smith, 1 C. M. & R. 94. So, if a wrong witness is called in consequence of a mistake in his name, and is dismissed on the discovery of the mistake, the other side has no right to cross-examine him. Clifford v. Hunter, 3 C. & P. 16. So, if he is called by error of the counsel and actually sworn, yet if dismissed before examination, he is not liable to be cross-examined.

Wood v. Mackinson, 2 M. & Rob. 273.

Contradicting opponent's witness.] In order to impeach the credit of a witness, evidence may be given of statements made by him at variance with his testimony on the trial ; but to lay a foundation for the evidence of such contradictory declaration or conversation, the witness must be asked, on cross-examination, whether he has made such declaration or held such conversation. The Queen's case, 2 B. & B. 301. Before he can be contradicted he must be asked as to the time, place, and person involved in the supposed contradiction. It is not enough to ask him the general question whether he has ever said so-and-so. Per Tindal, C. J., Angus v. Smith, M. & M. 474. Where the witness merely says that he does not recollect making the statement, the practice was not uniform as to whether the statement might be proved by the cross-examining party.

But the point is now settled ; for the C. L. P. Act, 1834, s. 23, provides 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 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." See Ryberg v. Ryberg, 32 L. J., P. M. & A. 112, cited ante,

[ocr errors][ocr errors]

p. 174.

Where the object in proving the statements of a witness is not merely to contradict him, but to impeach his moral character by proof of loose and unbecoming language, the evidence seems admissible without previous inquiry of himself. Carpenter v. Wall, 11 Ad. & E. 803. Where a document is offered in evidence to contradict the statement of a witness as to a material fact denied by him, it is admissible, though it also tends to prove the issue in the cause for which purpose alone it would have been inadmissible. Watson v. Little, 5 H. & N. 472; 29 L. J., Ex. 267.

It has been doubted whether to corroborate the testimony of the witness whose credit has been impeached, evidence contra is admissible that the witness affirmed the same thing before, on other occasions; Gilb. Ev. 150; B. N. P. 294; Lutterell v. Reynell, i Mod. 283; but the better opinion is that such evidence is generally inadmissible. R. v. Parker, 3 Doug. 242. Ace. per Ld. Redesdale in Berkeley Peerage case, as cited in 2 Phill. Ev., 10th ed. 523. It has been observed, however, that the rule is subject to this exception, that where counsel on the other side impute a design to misrepresent, from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts. 2 Phill. Ev., Id. “If a witness speak to facts negativing the existence of a contract, and insinuations are thrown out that he has a near connection with the party on whose behalf he appears; or that a change of circumstances has excited an inducement to recede from a deliberate engagement, the proof by unsuspicious testimony that a similar account was given when the contract alleged had every prospect of advantage, removes the imputation resulting from the opposite circumstances.” Notes to Pothier on Oblig., by Sir W. D. Evans, vol. 2, p. 251.

An opponent's witness may be contradicted on all points material to the issue; but he cannot be contradicted upon any point not material to th issue, with a view of showing that his evidence, generally, is not worthy of credit. The case of Palmer v. Trower, 8 Exch. 247, is a strong illustration of the rule. There the plaintiff sued the executor of A. on a joint and several note of A. and B.; the defence being that the note was forgal by the plaintiff : the defendant being called as a witness denied, on crossexamination, that he had ever heard B. admit that he had signed the note; it was held, that the plaintiff could not call a witness to prove that B. had made such an admission in the defendant's hearing. It should seem that if the admission of B. had been in A.'s presence, and the note had been sued upon in A.'s lifetime as a joint note, the question would have been material and relevant. A witness, being asked on cross-examination whether he had not said that a bribe had been offered to him to give particular evidence in the case, denied that he had said so: it was held, that no evidence could be adduced to show that he did say so. Att.-Gen. v. Hitchcock, 1 Exch. 91. The rule seems to be, that if the witness's answer to a question would, if truly made, tend to qualify, or contradict, or discredit some other relevant part of his testimony, then other evidence may be received to contradict him; and a fact may be considered as “relevant,” though not part of the transaction in issue, if the truth or falsehood of it may fairly influence the belief of the jury as to the whole case; Semb. Melhuish v. Collier, 15 Q. B. 878; 19 L. J., Q. B. 493; but a merely irrelevant inquiry cannot be allowed. It is true that by showing the levity or falsehood of a witness even on irrelevant matters, his testimony would in some degree be discredited, yet the expediency of confining the field of inquiry at Nisi Prius within a reasonable compass has made it necessary to assign a limit to such collateral issues. Without such restraint the examination of each witness might give rise to different issues remote from the immediate issue on the record, which the parties have not come prepared to try, and by which both witnesses and parties might be unfairly prejudiced. On this sort of evidence the observations of the court in Att.-Gen. v. Hitchcock, supra, are very instructive and important. See also Hollingham v. Head, 4 C. B., N. Š. 388; 27 L. J., C. P. 241, cited ante, p. 80.

Evidence of character.] We have seen (ante, p. 87) that in actions unconnected with character, evidence of the character of the parties is inadmissible, as irrelevant to the issue. As, however, the veracity of the witness is always a point in issue, his character for veracity may be impugned by the party interested in discrediting him, by showing that he is unworthy of credit. If a witness's character for veracity be impeached, witnesses may be called in support of it.

Although evidence is admissible to show that a witness bears such a character and reputation that he is unworthy of credit, yet it

not allowed (with the exception of facts which go to prove that the witness is not an impartial one,

vide infra) to prove particular facts in order to discredit him. R. v. Watson, 2 Stark. 152; R. v. Layer, 14 How. St. Tr. 285. The question as to the witness's character for credibility must be put in a general form. Mawson v. Hartsink, 4 Esp. 102. The usual form of the question is as follows:-“From your knowledge of the witness do you believe him to be a person whose testimony is worthy of credit ?" See R. v. Rowton, Leigh & Cave, C. C. 520; 34 L. J., M. C. 57; and R. v. Brown, L. R., 1 C. C. 70. And although a witness's answer upon a collateral fact is usually conclusive; R. v. Watson, supra ; yet where the object of the inquiry is to prove that the witness has endeavoured to corrupt another to give false testimony in the cause, his denial of the fact or refusal to answer will not prevent the party from proving it by other evidence. The Queen's case, 2 B. & B. 311.

But this can only be done by the opposite party; the person calling a witness, having once put him forward as a person worthy of belief, though he may contradict him, cannot afterwards discredit him, if the testimony of the witness should turn out unfavourable, or even should the witness assume a position of hostility towards the party calling him. Ewer v. Ambrose, 3 B. & C. 749. This is the rule at common law, and is affirmed by the C. L. P. Act, 1854, s. 22, ante, p. 173.

By the C. L. P. Act, 1834, s. 25, 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,

. . 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.” As to the signature to the certificate, see R. v. Parsons, L. R., 1 C. C. 24.

As to a party contradicting his own witness, see ante, p. 173. As to cross-examining him, see ante, pp. 165, 166.

Evidence that a witness is not impartial.] What has been said as to not giving evidence of particular facts merely for the purpose of impeaching the credit of a witness, does not apply where the facts sought to be proved go to show that the witness does not stand indifferent between the contending parties. Best, Evidence, $ 644. Thus, in R. v. Yewing, 2 Camp. 638, the witness was asked whether he had not said that he would be avenged upon the prisoner, and would soon fix him in gaol. This he denied, and Lawrence, J., allowed him to be contradicted. So also it inay be proved that a witness has been bribed ; R. v. Langhorn, 7 How. St. Tr. 446; or that he has endeavoured to suborn others; R. v. Strafford, Ld., 1d. 400; both which cases were recognised in Att.-Gen. v. Hitchcock, 1 Exch. 93; ante, p. 181.

Recalling witness.] It is in the discretion of the judge whether he will

[ocr errors]

permit a witness to be recalled. Adams v. Bankart, 1 C. M. & R. 681 ; The Queen's case, 2 B. & B. 284; Cuttlin v. Barker, 5 C. B. 201.

Re-examination.] A re-examination, which is allowed only for the purpose of explaining any facts which may come out on cross-examination, must be confined to the subject-matter of the cross-examination. The rule with regard to re-examination is thus laid down by Abbott, C. J., in The Queen's case, 2 B. & B. 297: “I think the counsel has a right, upon re-examination, to ask all questions which may


to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; but I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit, relative to the subject-matter of the suit, are in themselves evidence against him in the suit; and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation, not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion.” This statement of the rule was, however, qualified in Prince v. Samo, 7 Ad. & E. 627, where it was held that a witness of the plaintiff cross-examined as to assertions of the plaintiff in a particular conversation, could not be re-examined as to other unconnected assertions of the plaintiff in the same conversation, although connected with the subject of the suit. In that case the other part of the conversation was attempted to be shown for the plaintiff in order to prove plaintiff's case by his own assertion; and it was observed by the court that, if such proof were admitted, it ought to go to the jury, and might thus obtain a verdict for the plaintiff on his own unsupported assertion out of the court. It must not therefore be assumed that cross-examination on part of a conversation necessarily lets in proof of the whole of it.

As to re-examination of a witness after cross-examination under C. L. P. Act, 1854, s. 24, as to previous statements in writing, vide ante, p. 178.

Where a witness of the plaintiff stated, on cross-examination, facts which were not strictly evidence, but might prejudice the plaintiff, it was held that, unless the defendant applied to strike them out of the judge's notes, the plaintiff was entitled to re-examine upon them. Blewett v. Tregonning, 3 Ad. & E. 554.

Evidence in reply.] When a party is taken by surprise he should be allowed to produce fresh evidence to meet the case against him. Bigsby v. Dickinson, 4 Ch. D. 24, C. A.

« PreviousContinue »