allowed, in the event of his opponent not announcing at the close of the case of the party who begins, his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case, and also to sum up the evidence (if any); and the right to reply shall be the same as at present.

The reasons for, and anticipations of the effect of this alteration, are fully stated in the Commissioners' Report, under the heading "Proceedings at the Trial" (supra, p. 7.) Now, there may be always three speeches of counsel to the jury, and sometimes five. The object is to give each party the privilege of addressing the jury upon his case as proved by summing up the evidence; and to defeat the advantage too often gained by relying solely on discrepancies between the case as opened by counsel, and as proved by the evidence, aided by attacks on the character and veracity of the witnesses. For this purpose, when the defendant does not intend to call witnesses, the plaintiff's counsel is entitled to sum up his evidence, and to show that, notwithstanding any discrepancy there may be between the case as opened by him, and the case as proved by the evidence, the plaintiff still has good cause of action: and he has also the further opportunity of showing that the insinuations made on the witnesses in cross-examination ought not to prevent the plaintiff from recovering. The defendant is not bound to announce whether he will call witnesses or not: and if he should announce at the close of the plaintiff's case his intention not to call witnesses, it would scarcely be consonant to the policy of this provision that he should be bound by the announcement. The plaintiff's case cannot be said to be closed until his counsel has summed up the evidence, and it is admitted that one of the most difficult duties of an advocate, is to decide when to call witnesses for the defence and when not; and until the defendant's counsel has had the opportunity of estimating the effect, the speech in summing up of the plaintiff's case is likely to have upon the jury, he ought not to be put in the position of binding himself irrevocably not to call witnesses. If he should announce his intention not to call witnesses, and then from the power of the speech in summing up be induced to change his intention,

why should he not be at liberty to do so? The plaintiff would still have the general reply, and the only disadvantage would be the extra time consumed by the summing up at the close of the plaintiff's case. In such a case as this there would be five speeches, the two speeches of plaintiff's counsel in opening and summing up the plaintiff's case, the two speeches of defendant's counsel in opening and summing up the defence, and the general reply of the plaintiff's counsel. But this extra speech seems unavoidable, as in announcing his intention not to call witnesses, the defendant's counsel will always exercise towards the court that good faith which the bar is accustomed to do.

adjourn

19. It shall be lawful for the court or judge, Power to at the trial of any cause, where they or he may trial. deem it right for the purposes of justice, to order an adjournment for such time, and subject to such terms and conditions as to costs, and otherwise, as they or he may think fit.

This and the following sections to sect. 32 inclusive, apply to every court of civil judicature in England and Ireland: (see sect. 103.) It is discretionary with the judge at the trial to order an adjournment: and although the court will not interfere with the discretion of the judge, yet if it is plain that either party has been prejudiced in the result of the trial by the refusal of the judge to grant the adjournment, the court will probably grant a new trial: (Sainsbury v. Matthews, 4 M & W. 342; Chit. Arch. 395, 8th edit.)

oath in cer

20. If any person called as a witness, or re- Affirmation quired or desiring to make an affidavit or depo- instead of sition, shall refuse or be unwilling from alleged tain cases conscientious motives to be sworn, it shall be lawful for the court or judge or other presiding officer, or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following; videlicet,

"I A. B. do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is,

Persons making a false affir

subject to the same punishment as for perjury.

according to my religious belief, unlawful, and I do also solemnly, sincerely, and truly affirm and declare," &c.

Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form.

21. If any person making such solemn affirmation or declaration shall wilfully, falsely, and mation, be corruptly affirm or declare any matter or thing, which, if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties as by the laws and statutes of this kingdom are or may be enacted or provided against persons convicted of wilful and corrupt perjury.

How far a party may

22. A party producing a witness shall not be discredit his allowed to impeach his credit by general evidence own witness. of bad character, but he may, in case the witness

Proof of con

tradictory

shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned 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.

Upon the subject of this and the following kindred sections, the Report of the Commissioners contains a most valuable commentary of the law and its working before the passing of this Act: (see ante, p. 14, et seq.)

23. If a witness, upon cross-examination as to statements of a former statement made by him relative to the adverse wit- subject-matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be

ness.

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.

previous

in writing.

24. A witness may be cross-examined as to Cross-examprevious statements made by him in writing, or ination as to reduced into writing, relative to the subject- statements 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.

vious convic

given.

25. A witness in any cause may be questioned Proof of preas to whether he has been convicted of any felony tion of a witor misdemeanor, and, upon being so questioned, ness may be 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 (for which certificate a fee of five shillings and no more shall be demanded or taken), 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.

The evidence of the conviction will be fresh evidence in the cause, if the witness refuses to answer, or if the witness denies

Attesting witness need

except in

the fact, it will be evidence to contradict him, so that it is in the nature of evidence that properly belongs to the case of the party producing it, and cannot be given by the party until he comes to prove this part of the case. Therefore, although in many cases it may be a totally irrelevant issue as regards the general verdict, whether a particular witness was or was not convicted of a felony or misdemeanor, yet it seems one that cannot be disposed of by an interlocutory proceeding during the trial, but must be submitted to the jury at the close of the whole case. It is not difficult to see how many a witness may have his character damaged by insufficient evidence of the conviction. Who is to say that sufficient evidence of the conviction was not given? It is an issue which, undoubtedly, is to be left to the jury, but not one on which they are to return a specific finding to the court. The evidence, such as it is, of the conviction is left to them, but when there is no issue which requires them to find, whether the witness was or was not the person convicted, the party offering the evidence is in no great peril from his conduct.

The certificate of the conviction is to contain the substance and effect only of the indictment and conviction for the offence. The language of this part of the section is similar to the corresponding part of the 7 & 8 Geo. 4, c. 28, s. 11, and upon that section, it was held by Cresswell, J., that a certificate of a previous conviction must state that judgment was given: (Ackroyd's case, 1 C. & K. 158.) In Roscoe's Evidence in Criminal Cases, doubt is thrown upon this decision, but see Burgess v. Botefeur (7 M. & G. 491, Tindall, C. J.) as to the meaning of the word "conviction." The identity of the witness is generally proved by some person present at the trial, who also usually obtains the certificate from the office of the clerk of the court, and gives evidence of that fact, as it must be shown where the certificate comes from. The identity may be proved by other evidence as that of the gaoler who had the party in custody while undergoing the sentence.

26. It shall not be necessary to prove by the not be called, attesting witness, any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto.

certain cases.