have been made by the witness is in writing, the Law of rule, as laid down in the Queen's case, has hitherto Evidence. been, that the cross-examining counsel must produce the document as his evidence, and have it read, in order to found upon it any questions to the witness. That this rule might not be evaded, it was further laid down that the witness could not be asked whether he had ever made representations of the nature suggested to him, without counsel informing him whether the question referred to representations in writing or in words alone. Thus, a counsel defending a prisoner has not been permitted to ask a witness for the prosecution, whether he had not made a different statement before the magistrate, without first reading over and putting in his deposition. The effect of the rule in practice has been to exclude the former statement; and its soundness has been much questioned by judges and by authors on the Law of Evidence. Lord Brougham has 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 66 66 I a letter or other paper which he has written. "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 66 can a better means be found of sifting a person's credit, supposing his memory to be good, than "examining him to the contents of a letter "written by him, and which he believes to be "lost?" 66 66 nation as to The chief reason assigned for the rule was, that Cross-exami the adoption of a contrary course would enable previous the cross-examining counsel to put the court in statements in possession of a part only of the contents of the writing, though a knowledge of the whole might writing. Law of Proof of pre tion of a witness. be essential. But the obvious answer to this objection to an alteration in the rule is, that the witness, on re-examination, may be questioned as to any other parts of the writing which may tend to qualify, contradict, or explain the passages referred to in cross-examination. The rule has accordingly been altered; and a witness 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 being shown to him. But if it is intended to contradict the 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 contradicting him (s. 24). The judge may also, at any time during the trial, require the production of the writing for his inspection, and make such use of it for the purposes of the trial as he thinks fit (s. 24). Any abuse of the facility for cross-examination thus given will, it is anticipated, be prevented by the judge being enabled to call for and deal with the writing as he thinks fit. An important test of the veracity of a witness vious convic is to be found in his general character. If he has been guilty of offences which imply want of probity, and especially absence of veracity, such as perjury, forgery, or the like, such facts ought evidently to be considered in forming an estimate of the value of his evidence, particularly if it be in conflict with the testimony of another witness of unquestioned integrity. But because a person is in possession of a fact which is important to another in a legal proceeding, to which he individually is no party, should he, by becoming a witness to prove that fact, be made liable to be interrogated as to some delinquency of which no proof may exist, or as to some offence for which Law of he has already paid the penalty? The obvious Evidence. hardship of subjecting a witness to such an examination becomes more striking if the individual, having been really guilty of any offence, has since recovered his character and the good opinion of his neighbours. But if the witness deny the imputation? Should the party cross-examining be at liberty to prove, by other testimony, the offence or the conviction which he alleges against the witness? Such a Course would involve grievous injustice to the witness, for not only would he have no notice of the accusation about to be made, nor could he be expected to come prepared to defend every transaction of his life. The law of England accordingly protects a witness in refusing an answer to any question where the answer may tend to subject him to a criminal prosecution, a penalty, or a forfeiture. With regard to questions which do not tend to expose him to prosecution, 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 law in like manner protects him in refusing an answer, unless the misconduct imputed has reference to the cause itself. The question may be put: the witness is not bound to answer. If he does answer and denies the imputation, his denial has hitherto been conclusive. It could not be controverted. The rule has, however, been modified. A witness may be questioned, as he has hitherto been, as to whether he has been convicted of any felony or misdemeanor; but if, upon being so questioned, he either denies the fact or refuses to answer, the opposite party may prove such conviction (s. 25). The denial of the witness or his refusal to answer is no longer conclusive. On Law of Attesting witness need the contrary, it exposes his whole evidence to the imputation of being false if a conviction be proved. On the other hand, if the fact of the conviction be admitted by the witness, the examination can go no further, and the admission will afford ground for a presumption, that in other matters the witness has spoken the truth, since he has not hesitated to confess an error in his previous life. The law as to documentary evidence has also not be called. been in some respects altered and improved. Many instruments must be attested by one or more witnesses. Thus 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 an attorney. Instruments are often, attested in a particular way, from their being executed under powers where the parties creating such powers, or rather their conveyancers, from inveterate adherence to forms, have thought proper to require such attestation. It is also usual in the case of instruments under seal, and by no means uncommon in the case of ordinary written agreements, to have documents subscribed by one or more attesting witnesses. It has hitherto been the rule that before an attested document could be received in evidence, the attesting witness should be called to prove the execution. So stringent was this rule that in a recent action of ejectment by a mortgagee, in which the execution of the mortgage was admitted by the defendant in the witness-box, the plaintiff was notwithstanding nonsuited by the judge, and by the court held to have been so legally. "The principle on which the necessity for pro"ducing the attesting witness rests, is, that the "witness is supposed to be conversant with all "the circumstances under which the deed was Law of "executed. But it is notorious that, in practice, Evidence. "the attesting witness, in the majority of in66 stances, knows nothing of the transaction; the "instrument having been prepared, a clerk, a 66 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 writ"ing."-(Second Report, p. 23.) The necessity of calling the witness where the execution of the instrument was not in dispute, and where there were no concomitant circumstances to be inquired into, has often been attended with difficulty and expense, and sometimes, as in the case above referred to, led to the defeat of justice. "Cases "have occurred where, in tracing a title, nume 66 rous witnesses from distant parts have been "rendered necessary to prove the formal execu“tion 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." (Second Report, p. 23.) It has sometimes also happened at a trial, that it became necessary to give in evidence a document, which it was not supposed would be required; or a document has been produced by a witness which unexpectedly turned out to be attested. The attesting witness not being at hand, although the signature of the party might be easily proved, or the witness producing the instrument might have heard him admit the execution, the document could not be received, and the party requiring it accordingly lost his cause. When the genuineness of a document is not in |