for, even if a contradiction between the two statements existed, the prisoner's counsel would rarely, if ever, resort to such evidence, as it would give the counsel for the prosecution the reply. Yet the inconvenience of the rule has not unfrequently been felt by judges, where striking discrepancies between the evidence and the deposition of a witness have been brought to their attention; and more than one learned judge has held that the judges are not bound by the rule, and may, if the justice of the case requires it, look at the depositions while a witness is giving his evidence, and question him as to any discrepancy between them and his evidence as given in court. Mr. Justice Patteson, however, declined to adopt this practice, saying to the prisoner's counsel, "I shall not break the law, and you must not."

The inconvenience of the rule is fairly illustrated by its working in the instance of the depositions above referred to. Its soundness has been much questioned by able thinkers and authors on the subject of evidence. It is obvious that one of the best tests of the memory or veracity of a witness, the trial of his recollection or candour as to what he himself has written on the subject on which he has just been deposing, is entirely destroyed by his being made aware of the existence and contents of the document. Lord Brougham has with much force observed, "If I wish to put a person's memory to the test, I am not allowed to examine him as to the contents of a letter or other paper which he has written. I must put the document into his hands before I ask him any questions upon it; though, by so doing, he at once becomes acquainted with its contents, and so defeats the object of my inquiry. Neither am I, in like manner, allowed to apply the test to his veracity; and yet how can a better means be found of sifting a person's credit, supposing his memory to be good, than examing him to the contents of a letter written by him, and which he believes to be lost?"

The chief reason assigned for the rule is, that the adoption of a contrary course would enable the cross-examining counsel to put the court in possession of only a part of the contents of a paper, though a knowledge of the whole might be essential to a right judgment.

The answer, however, is, that on re-examination the witness may be asked as to any other parts of the writing which may tend to qualify, contradict, or explain the passages referred to in cross-examination. And if the objection were a valid one, it would equally hold as to verbal statements, forming part of an entire conversation, as to which there is no doubt that a witness may be now cross-examined.

The judicial decisions to which we have referred have proceeded rather upon the rule as established than on its reasonableness. (See Macdonnell v. Evans, 21 L. J. 141, C. P.) The arguments against the rule as established appear to us to prevail; and we recommend that a witness should be open to cross-examination as to previous written statements he may have made, without the writing being first 'put in. To such a rule, we would, however, annex this limitation, that if it is intended to contradict the witness by the writing, his attention should, before doing so, be called to those parts which are to be used for that purpose. And we further think that, in order to prevent any abuse of the facility thus given, it should be competent to the judge, if he deem right, to require the writing to be produced for his inspection, and to be dealt with by him as he thinks fit.

Impeachment of Character.

Another test of the veracity of the witness is to be found in his general character. If he has been guilty of offences which imply turpitude and want of probity, and more especially absence of veracity, as, for instance, perjury, forgery, obtaining money or goods under false pretences, or the like, there can be no doubt that this is matter very proper to be taken into consideration in forming a due estimate of the value of his evidence, particularly if such evidence should be in conflict with that of another witness of unquestioned integrity. But, important as the knowledge of the antecedents of the witness may in this respect be, it cannot always be acquired without inconveniences which may outweigh its advantages. First, as regards the witness himself, the question arises whether, because a person in possession of some fact which becomes important to another in a legal proceeding, to which he, the witness, is no party, he should be liable to be interrogated as to some alleged delinquency, of which no sufficient proof, independently of his own admission, may exist, or as to some offence of which he may have been convicted, and of which he has already suffered the penalty; the obvious hardship of which becomes the more striking, if the transaction is one of remote date, and the individual by an altered life has succeeded in recovering his character and the good opinion of his neighbours.

Next, assuming that such an inquiry might be addressed to the witness himself, what if he deny the imputation? Should the party cross-examining be at liberty to prove if he can, by other testimony, the offence or the conviction which he alleges against the witness? It is obvious that such a course would involve a grievous injustice to the witness, inasmuch as he would have had no notice of the attack about to be made upon him, and could not reasonably be expected to come prepared to defend every transaction of his past life. Secondly, the consequence might be the creation of collateral issues, which would lead to delay, confusion, and expense.

The law of England protects a witness from answering any question where the answer will tend to subject him to a criminal prosecution, a penalty, or a forfeiture. That such a question may, however, be put to the witness, subject to his privilege of refusing to answer, seems established by the weight of authority and by the every-day practice of the courts, though decisions to the contrary are not wanting in the books.

The propriety of the rule which thus protects the witness has been questioned, and it has been proposed to make it obligatory on the witness to answer, with a proviso that no answer to any such question shall be admissible in evidence in any proceeding against him, or shall subject him to any punishment. But this proviso does not meet the whole difficulty; for though it might prevent the admission of an offence by the witness from being made the means of convicting him on a future charge, it would not prevent a series of questions from being put, the answers to which might afford the means of procuring evidence whereupon afterwards to convict him.

Now to the latter course there are two very grave objections: the one, founded on the fundamental rule of our criminal jurisprudence, that a person accused shall not be subjected to interrogation with a view to his conviction; which rule, so long as it obtains in the penal law, obviously ought not to be violated in a civil proceeding: the other,

that the dread of being exposed to such an ordeal might deter the witness from coming forward, and induce him to conceal his knowledge on the subject of the suit, or make him prefer incurring the penalties of a contempt of court to giving evidence. It will readily be seen how effectual a means of intimidation the threat of such an examination would be in the hands of a party against whom such a witness was about to be called. We are therefore averse to the proposed alteration of the law, and recommend that it should be left as it now stands.

With regard to questions which do not tend to expose the witness to prosecution or punishment, but which tend to degrade his character by imputing to him misconduct not amounting to legal criminality, or the having been convicted of a crime the punishment of which has been undergone, the law of England, according to the better authorities, in like manner protects the witness from answering, unless the misconduct imputed has reference to the cause itself. Should this rule be maintained? On the one hand, the witness may have been recently convicted of perjury, or some other form of the crimen falsi; he may have become infamous by his offences against the law or against society; he may have, to his own knowledge, acquired a bad repute for habitual mendacity; and it may be highly important that the jury who are to weigh his testimony should be made aware of the drawbacks which thus attach to it. On the other hand, it cannot be denied that it would be an extreme grievance to a witness to be obliged to disclose past transactions of his life which may have been long forgotten, and to expose his character afresh to evil report and obloquy, when by subsequent conduct he may have recovered the good opinion of the world. As the law now stands, the question may be put, but the witness is not bound to answer; but if he does answer and denies the imputation, his denial is conclusive, and cannot be controverted. It has been proposed to take away the privilege of the witness, and to compel him to answer. We cannot bring ourselves entirely to concur in this view. We have already pointed out the effect which the dread of an inquiry of this nature may have in deterring a witness from appearing in court. To this may be added that, while under the present system the refusal of the witness to answer has practically the effect of an admission, the consequence of compelling the witness to answer would not improbably be to induce him to give an absolute denial, which would not be open to contradiction.

On a balance, then, of these opposing considerations, we recommend that the existing law should be maintained, except that, where the question relates to the conviction of the witness of perjury, or any other form of the crimen falsi, and the witness either denies the fact or refuses to answer, the conviction should be allowed to be proved.

Documentary Evidence.

The great improvements which have been made by recent legislation in the matter of documentary evidence, leave us but little to suggest in this respect. In a few particulars, however, which we will now proceed to point out, this branch of the law of evidence seems to us still susceptible of amendment.

Attesting Witnesses.

In many instances the Legislature has provided, with a view to the protection of parties concerned, that particular instruments shall be

attested by one or more witnesses. Thus, e. g., a will, to be valid, must be attested by two witnesses; an agreement between a master of a ship and a merchant-seaman by one; a warrant of attorney or cognovit must be attested by the attorney of the party executing. It also frequently happens that instruments are attested in consequence of their being executed under powers, where the parties creating such powers have thought proper for greater security to require such attestation. Besides this, it is usual in the case of instruments under seal, and not uncommon in the case of ordinary written agreements, to have such documents subscribed by one or more attesting witnesses.

Now, it is a rule of law, subject to certain exceptions which need not here be noticed, that, before an attested document can be received in evidence, the attesting witness must be called to prove the execution; and this, although the execution of the instrument is admitted by the party to it in an answer to a bill of discovery, or perhaps even in the witness-box during the progress of the cause.

We do not purpose to meddle with the preappointed evidence of execution required either by the Legislature or by persons creating powers; but we think it deserving of serious consideration whether this formal proof of the execution of written documents may not in other cases be dispensed with, where the execution is either admitted or capable of other proof. The principle on which the necessity for producing the attesting witness rests, is that the witness is supposed to be conversant with all the circumstances under which the deed was executed. But it is notorious that in practice the attesting witness, in the majority of instances, knows nothing of the transaction; the instrument having been prepared, a clerk, a servant, or a neighbour, is called in to attest it. Added to which, as parol testimony is not admitted to contradict or vary the terms of a written instrument, the occasions are few indeed where the evidence of the attesting witness goes further than to prove the execution of the writing. On the other hand, the necessity of calling the attesting witness where the execution of the document is not the real matter in dispute, and where there are no concomitant circumstances to be inquired into, is often attended with difficulty and expense, and sometimes leads to the defeat of justice. Cases have occurred where in tracing a title, numerous witnesses from distant parts have been rendered necessary to prove the formal execution of deeds, though their execution was not really in dispute, and the handwriting to all might have been proved by a single witness, and doubtless would have been admitted, but for the difficulty which it was thought would by the existing rule be thrown in the way of the party alleging title. It also sometimes happens, in the course of a cause, that the adversary's case renders it necessary to give in evidence a document which it was not supposed would be required; or a document is produced by a witness on his subpoena, which turns out, contrary to the expectation of the party requiring it, to be attested. The attesting witness is not at hand, yet the signature of the party might be easily proved, or the witness producing the instrument may have heard him admit the execution. Nevertheless, the document cannot be received, and the party requiring it loses his cause.

When the genuineness of the document is not really in dispute, it is clear that the parties ought not to be limited to any particular witness to prove the execution. When the genuineness is in dispute, the party producing it will be sure to call the attesting witness, as the absence of the latter would tend to throw the greatest discredit on the

instrument. We therefore recommend that, except in cases where the evidence of attestation is requisite to the validity of the instrument, an attesting witness need not be called.

Proof of Handwriting.

In the production of documentary evidence, the genuineness of handwriting frequently becomes matter of dispute.

According to existing rules, the handwriting of a party may be proved by a witness who professes to have acquired a knowledge of his writing by having seen him write even in a single instance; as also by one who has never seen him write at all, but who, by correspondence which has been acted on, has acquired a knowledge of his hand. But while the law thus allows a comparison of the handwriting in dispute with the ideal standard which the witness has in his mind, it prohibits a witness to handwriting from instituting a comparison with documents the genuineness of which is not disputed, and prevents even the jury from doing so, unless, indeed, such documents are in evidence in the

cause.

Doubts have, however, arisen as to the extent to which this rule is to be carried. In a case in which the law on the subject was fully reviewed (Doe dem. Mudd v. Suckermore, 5 A. & E. 703), a difference of opinion existed among the judges. In that case, which was an action of ejectment, the defendant produced a will; and on one day of the trial (which lasted seven days) called an attesting witness, who swore that the attestation was his. On the cross-examination of this witness, eighteen other signatures were shown him, none of which were evidence for any other purpose of the cause; and he acknowledged them to be his. On a subsequent day the plaintiff tendered a witness to prove the attestation not to be genuine. This witness was an inspector of the Bank of England, whose business it was to compare the signatures to powers of attorney with former signatures made by the parties, in order to ascertain their genuineness. He had no knowledge of the handwriting of the supposed attesting witness, except from having, previously to the trial, and again between the two days, examined the signatures admitted by the attesting witness. The question which was much discussed, and on which the judges differed, was whether the witness, who had, by seeing the signatures of the writings admitted to be genuine, acquired as he affirmed a knowledge of the character of the handwriting, might be asked whether he believed the signature to the attestation to the will to be the handwriting of the person who wrote the other signatures. Lord Denman and Mr. Justice Williams were of opinion that the evidence ought to have been received; Mr. Justice Patteson and Mr. Justice Coleridge were of opinion that it ought not.

The latter view has received confirmation by the decision of the Committee of Privileges in the subsequent case of the Fitzwalter peerage (10 Cl. & Fin. 193.) It there became necessary to show that a family pedigree, purporting to have been made some ninety years before by an ancestor of the claimant, was in fact written by him. To prove this, a person who had been for many years an inspector of franks and official correspondence was called, who stated that he had examined the signatures attached to other documents which were admitted to have been executed by the ancestor, that they were written in a remarkable character, and that his mind was so impressed with