issue.' Therefore, in an action upon a marine policy, where the broker, who had effected the policy for the plaintiff, stated as a witness for the defendant that he had omitted to disclose a certain fact, now contended to be material to the risk, and on being cross-examined, as to whether he had not expressed his opinion that the defendant had not a leg to stand upon, denied that he had said so; this was deemed conclusive, and evidence to contradict him in this particular was rejected.' § 1301. When the contradictory statement alleged to have been made by the witness was contained in a letter or other writing, the rule, as laid down by the judges in the Queen's case,' was that the cross-examining counsel must produce the document as his evidence, and have it read, in order to found any questions to the witness upon it. This rule, however,-excluding, as it did, one of the best tests by which the memory and integrity of a witness can be tried, has recently been abrogated by the Legislature; and a witness examined in any court of civil judicature, in England, or in any court of judicature, whether civil or criminal, in Ireland, may now "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 having been 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.” “ 1 Daniels v. Conrad, 4 Leigh's R. 401, 405. 2 Elton v. Larkins, 5 C. & P. 385, 390, 391, per Tindal, C. J. 3 2 B. & B. 286-290, 292-294; Macdonnell v. Evans, 11 Com. B. 930. See per Lord Brougham, in Ed. Rev., vol. 69, p. 22; and Speech on Law Reform, vol. 2, Lord Brougham's Speeches, p. 447. * See §§ 24 & 103 of the "Common Law Procedure Act, 1854," 17 & 18 Vict., c. 125, and §§ 27 & 98 of the "Common Law Procedure Amendment Act (Ireland), 1856," 19 & 20 Vict., c. 102. • The reasons for this change in the law are ably stated by the Common § 1302. If it should appear from the cross-examination of the witness, or from any antecedent evidence, that the writing in question has been lost or destroyed, the proviso just cited, empowering the judge to require its production, will of course become inoperative. In such a case, therefore, it is apprehended that the witness might be cross-examined as to the contents of the paper, notwithstanding its non-production; and that, if it were material to the issue, he might be afterwards contradicted by secondary evidence. Still the question remains, as to whether the cross-examining party might first interpose evidence out of his turn, to prove the loss or destruction of the document, or to show that it was in the hands of the opponent, that he had had notice to produce it, and that he refused to do so; and might then crossexamine the witness as to its contents. In former times this course was deemed irregular,' but modern authorities are not wanting to show that it would now be generally allowed. Thus, if the paper in question be not in the actual possession of the cross-examining party, he may, before commencing his crossexamination, or during its progress, direct any person, whom he has served with a subpoena duces tecum, to produce the writing, or call upon the adversary to do so, if the paper is in his hands, and he has had notice to produce it.' The counsel for a prisoner has also been allowed to interpose proof of the loss of the original depositions, and of the correctness of a copy, and then to crossexamine the witness, the copy being first duly read. In another case, a witness was permitted to be cross-examined upon an office copy of an affidavit made by her, the affidavit itself being filed, and the cross-examining counsel having put in an order to admit the document to be a true copy.' If in any particular case, this Law Commiss. in their 2nd Report, pp. 19-21. See also the 1st Ed. of this work, § 1057. 1 Gr. Ev., § 464, slightly as to first eight lines. 2 See 1 St. Ev. 205, n. d. Graham v. Dyster, 2 Stark. R. 23, per Lord Ellenborough; Sideways v. Dyson, id. 49, per id. 4 Att.-Gen. v. Bond, 9 C. & P. 189, per Lord Abinger. * Calvert v. Flower, 7 C. & P. 386, per Lord Denman, R. v. Shellard, 9 C. & P. 279, per Patteson, J. 7 Davies v. Davies, 9 C. & P. 252. * Gr. Ev., § 464, in part as to four lines. course of proceeding would be likely to occasion inconvenience, by disturbing the regular progress of the cause and distracting the attention, the judge would be empowered to postpone the examination as to this point to a later stage in the cause.' § 1303. Another point on which a doubt may be entertained respecting the true meaning of the proviso, is this. Let it be assumed that the object of the cross-examining counsel is to discredit a witness, by showing that he has previously told a different tale in some affidavit, deposition, or answer in Chancery, which has been duly filed of record. The question then will be, whether, in the event of the judge requiring "the production of the document for his inspection," it will be necessary that the original should be forthcoming, or whether an examined copy,— or if the document be filed in the same cause and court, an office copy, will suffice. The doubt arises from the case of Bastard v. Smith, in which Chief Justice Tindal is reported to have held at Nisi Prius, that a plaintiff's counsel had no right under the old law to cross-examine one of the defendant's witnesses on the contents of his own affidavit without putting the original into his hands to refresh his memory. The grounds for this decision are not stated in the report; and as the case is certainly opposed to a variety of decisions, and, moreover, contravenes the very salutary rule, which protects from removal the records of courts of justice, it is submitted that little, if any, weight should be attached to it. When an examined copy is used, some difficulty may doubtless arise in identifying the witness with the person who swore to the truth of the original document, and in order to obviate this inconvenience, it may occasionally be prudent to produce the record itself; but this is a very different matter from holding that the record must be produced. § 1304. As the enactment under discussion does not at present 1 2 Ph. Ev. 439, 440. 2 10 A. & E. 214. 3 Ewer v. Ambrose, 4 B. & C. 24; Highfield v. Peake, M. & M. 109; Davies v. Davies, 9 C. & P. 252, per Gurney, B.; Sainthill v. Bound, 4 Esp. 74; Garvin v. Carroll, 10 Ir. Law R. 323. 4 See Garvin v. Carroll, 10 Ir. Law R. 330, per Crampton, J., while commenting on Rees v. Bowen, McClel, & Y. 383, apply to courts of criminal jurisdiction, it would seem that the rules laid down by the judges, as to the mode of cross-examining witnesses for the Crown, with respect to what they have previously sworn before the magistrate, are still in force. The rules in question are as follows: "1. Where a witness for the Crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and such deposition must be read as part of the evidence of the cross-examining counsel. "2. After such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness as to any supposed contradiction or variance between the testimony of the witness in court and his former deposition; after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has addressed the jury, will be entitled to the reply. And in case the counsel for the prisoner comments upon any supposed variance or contradiction, without having read the deposition, the Court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it. "3. The witness cannot, in cross-examination, be compelled to answer, whether he did or did not make such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event the counsel for the prisoner may proceed with his crossexamination: and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of his testimony; or if the witness denies that he made such statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply." §1305. In accordance with these rules,-which, although in terms 27 C. & P. 676. 1 1 R. v. Curtis, 2 C. & Kir. 763. confined to depositions taken before a magistrate, are equally applicable to those which are returned by a coroner,'-it has been held that a witness for the prosecution cannot be directed by the prisoner's counsel to look at his deposition and then say whether he still adheres to the statement he has just made, but the deposition must be first read as evidence for the prisoner, and the witness may afterwards be cross-examined respecting its contents.' Neither can a witness for the Crown be asked generally, on cross-examination, whether he has always told the same story, but the question must be qualified by adding, "except when you were before the magistrates or coroner." The rules, however, are confined to those cases in which the depositions have been duly taken and returned, and when, consequently, they would furnish the best evidence of what took place at the prior examination. Neither do they protect a witness from cross-examination as to what he said prior to his giving his testimony before the magistrate in the presence of the prisoner, although his words may have been taken down officiously by the magistrate's clerk, and may have been afterwards verified on oath by himself when examined by the justice, so that they actually appear in the deposition as formally returned. It seems, too, that the rules are merely intended to check the license of the bar, and are not binding on the judges themselves, who have still a discretionary power of questioning the witness as to any discrepancy between his evidence in court and his former statement, without first putting in the depositions; but it may be questionable whether, in such a case, if new facts were introduced in evidence, the counsel for the prosecution would not be entitled to reply." 1 § 1306. The rule which requires the attention of the witness to R. v. Barnet, 4 Cox, C. C. 269. There Platt, B., appears to have allowed the witness to refresh his memory with the deposition, but this was obviously a mistake. See cases cited in next note. R. v. Ford, 2 Den. C. C. 245; 2 C. & Kir. 113; 5 Cox, C. C. 184, S. C.; R. v. Palmer, 5 Cox, C. C. 236; R. v. Stokes, 4 Cox, C. C. 451. 3 R. v. Holden, 8 C. & P. 609, per Patteson, J.; R. v. Shellard, 9 id. 280, per id. See R. v. Price, 7 Cox, C. C. 405. R. v. Griffiths, 9 C. & P. 746, per Coleridge, J., and Gurney, B. R. v. Christopher, 4 Cox, C. C. 76; 1 Den. 536; 2 C. & Kir. 994, S. C. 6 R. v. |