Speeches to the jury.

Power to

missioners to recommend the alteration effected by this section, are stated in the INTRODUCTION, p. xxxix.

It will be observed, that it is only on a trial by jury that the rule has been altered. On a trial by a judge or the court, the rule of practice remains unchanged, and the "inconvenience and injustice," animadverted on by the Commissioners (Second Report, p. 9), continue as before.

If the advantage of the reply is so great as it is represented to be, it is not unlikely that many questions will arise on the interpretation to be put on this section, as the parties to an action will, as hitherto, resort to the course which will secure the right of reply, if it be possible to do so. In this view a plaintiff would seem to have an advantage, by its being open to him, either to rely on a primâ facie case, and answer the defence when it is proved, or to meet at once the defence set up by the pleadings. (Williams v. Davies, 1 C. & M. 464; Doe d. Nichol v. Bowyer, 16 Q. B. 805; Shaw v. Beck, 8 Ex. 392.)

It would be easy, but out of place here, to suppose cases in which questions may arise. The order of beginning it has been decided is a matter for the disposal of the judge at nisi prius; and an incorrect ruling as to the proper party to begin is no ground for a new trial, unless the ruling "did clear and manifest wrong.' (Brandford v. Freeman, 5 Ex. 734.) This principle would seem to be applicable to the rulings of a judge at nisi prius under this section.

A question may be raised whether this section is applicable to the trial of indictments removed by certiorari, which are tried on the civil side of the court; or in other words, whether the trial of an indictment, removed by certiorari, is the trial of a cause" within the meaning

of the section.

66

19. It shall be lawful for the court or judge, at the adjourn trial. trial of any cause, where they or he may 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.

As to the reasons which led to this enactment, see INTRODUCTION, p. xli. An adjournment will probably be ordered "where the circumstances are such that the court would afterwards grant a new trial;" as when by a temporary adjournment a deficiency in proof may be supplied; or where the judge may "deem it right for the purposes of justice, in like manner as was anciently done for the purpose of a view." (Second Report, p. 10.)

A new trial has hitherto been granted, when one party Adjournwas taken by surprise by his adversary's case. Such ment of the would seem to be a proper case for an adjournment. The trial. party must be taken wholly by surprise. (Roberts v. Holmes, 2 Com. Law Rep., 726.*) So a deficiency in proof may occur; and if it occur from other causes than the negligence of the party on whose part the failure arises, in getting up his proof, an adjournment may be allowed. The want of an attesting witness (s. 26) or a document turning out to be unstamped, or not properly stamped, (s. 28) will no longer compel a party to submit to a defeat. A postponement has hitherto been granted (Thomson v. Lewis, 2 Com. Law Rep., 707) when a necessary witness was absent, if it was applied for on proper affidavits before the trial was begun. Such " deficiency in proof," it would seem, will now be a good ground for an application for an adjournment.

a

An affidavit may be required before an adjournment will be granted; and payment of the costs of the day will in all probability form a condition precedent.

An adjournment for a view, under this revived power of the courts, will not likely be often applied for, as either party may avail himself of the other provisions of the statute, for the purpose of an inspection by the jury or the witnesses (s. 58).

This enactment, it may be added, applies to every court of civil judicature in England and Ireland (s. 103).

[ALTERATIONS IN THE LAW OF EVIDENCE.]

oath in cer

20. If any person called as a witness, or required or Affirmation desiring to make an affidavit or deposition, shall refuse instead of or be unwilling from alleged conscientious motives to tain cases. 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, according

*The cases illustrating the principles on which the courts act with respect to new trials in special circumstances, more or less partaking of the nature of surprise, are collected in a note to Lewis v. Trussler, 2 Com. Law Rep., 728.

Persons making a

false affirmation subject to the same

66

"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.

The alteration effected in the law by this section is stated in the INTRODUCTION, chap. ix. The examination under s. 48, of a person who refuses to make an affidavit, will no doubt be considered as the examination of a person" called as a witness," so as to make this provision applicable to it. The enactments of this and the twelve following sections apply to every court of civil judicature in England and Ireland (s. 103).

21. If any person making such solemn affirmation or declaration shall wilfully, falsely, and corruptly affirm or declare any matter or thing, which, if the same had been sworn in the usual form, would have amounted to punishment 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.

as for per

jury.

How far a party may discredit his own witness.

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

The general principle and object of this section have been stated in the INTRODUCTION, pp. lxii-lxv. It will be useful, however, to consider the particular effect of this and the subsequent provisions, and in the first place to state how far a party may under this new law, combined with the old practice, contradict or impeach the credit of his witness.

"A party producing a witness shall not be allowed to

impeach his credit by general evidence of bad cha- How far a racter."

This provision, not interfering with the previous law, but being only in restraint of the subsequent power, does not call for any further remark, than that it must not be inferred, from the use of the words "general evidence," that a party may give particular evidence of bad character; for such particular evidence as to the character of a witness (that is to say, particular instances of bad conduct) is not allowed to be given by either party, unless material to the issue, although a conviction for felony or misdemeanor may now be given in evidence, if a witness denies or refuses to admit such conviction (s. 25, post).

A party producing a witness will not even, it seems, be allowed to question him as to whether he has been convicted of any offence, or to give evidence in proof of it; for s. 25 only allows "the opposite party" to prove a previous conviction.

The provisions of the Act are intended to meet the case of a witness unexpectedly turning round on the party calling him; but not to enable a witness to be put forward avowedly, in the first instance, as unworthy of credit; although in certain exceptional cases, where a party is, from the nature of the inquiry obliged to call an adverse witness, he may contradict that witness as to facts.

But what a party may do," in case the witness shall in the opinion of the judge prove adverse,” is ::

I. "To contradict him by other evidence;" that is to say, to prove by other witnesses or by documents, that the statements of the witness are untrue.

This provision does not introduce any new rule of evidence. In three classes of cases a party is always permitted to contradict the statement of a witness called by him. (First.) Where he is under the necessity of calling a witness for the purpose of satisfying the formal proof which the law requires, he is not precluded from calling other witnesses who give contradictory testimony (Starkie on Evidence, 4th edit., p. 244), as where an attesting witness denies the fact of his attestation, or the signature of the party. (Secondly.) Where a witness, called to prove a particular fact, does not deny that fact, but gives evidence (generally on cross-examination) of other facts material to the same or other issues in the cause, as in the case put by Tindal, C. J., in delivering judgment in Bradley v. Ricardo, 8 Bing. 58; or where a plaintiff, for some formal proof, is obliged to make a witness of the defendant's attorney, who, on cross-examination, makes a statement adverse to the plaintiff; or where, on the question of a

party may discredit his

own witness.

How far a party may discredit his

devise of real estate, an attesting witness is called to prove and does prove the execution of the will, but entertains an adverse opinion as to the capacity of the testator, as in own witness. Lowe V. Jolliffe, 1 Wm. Bl. 365. In either of these classes of cases it is immaterial, so far as the right of the party to call contradictory evidence is concerned, whether he knew beforehand that the witness would prove adverse. (Thirdly). Where a witness by surprise gives evidence against the party who called him, that party will not be precluded from proving his case by other witnesses; for it would be contrary to justice, that the treachery of a witness should exclude a party, from establishing the truth by aid of other testimony. (Starkie, ut supra.)

Such contradictions must, on the general rules of evidence, be of facts material to the issue to be tried, for as the witness cannot be examined except as to facts material to the issue, by necessity he cannot be contradicted except on such material facts.

II. Independently of, or in addition to the contradiction as to facts, by other evidence, the party may "by leave of the judge, prove that the witness has made at other times a statement inconsistent with his present testimony." This settles what was before a moot point, rather than introduces any positive new rule of evidence. See the INTRODUCTION, ante, p. lxii.

The "statement" may be verbal or in writing. If the latter, it must be, it would seem, produced and read, before any questions can be put to the witness upon it, in accordance with the rule laid down in the Queen's case as to the cross-examination of witnesses. (INTRODUCTION, p. lxiii.) This depends, however, on the meaning to be given to the word "cross-examined" in s. 24, post. It is submitted that the word "cross-examined" in that section, and the word "cross-examination" in s. 23, are confined to their ordinary sense of an examination by the party opposed to him who has called the witness, and do not apply to any examination of a party's own witness under s. 22.

The supposed statement, in order to allow of proof being given of it, must be material to the issue, or (to use the words of the subsequent sections) it must be "relative to the subject matter of the cause."

It is to be observed, that this section does not interfere with the right of a party to put a document into a witness's hands for the purpose of refreshing his memory; and this right, although ostensibly permitted for that purpose, is sometimes used not so much with a view to assist the

ury, as to operate as a check on the mind of an adwitness, from saying anything inconsistent with the or at least with that previous statement.