making

be subject

as for per

party may

not so. If the witness declare falsely his belief, he is liable to the penalty of perjury; but it is no ground for a trial (Sells v. Hodd, 3 B. & B. 232). (a) Although a party cannot call evidence directly to discredit his own witness, yet, if the witness unexpectedly state facts against the interests of the party calling him, other witnesses may be called by the same party to disprove those facts (Hardwill v. Jarman and Hasting's Case, Bull. N. P. 297). Where the first witness called for a defendant disproved the fact relied on in defence: held, that the defendant was not thereby concluded, but might prove the fact by other witnesses (Ewer v. Ambrose, 5 D. & R. 629; 3 B. & C. 746). And see S. C., 6 D. & R. 127; 4 B. & C. 25. Where a witness called on to prove a particular fact states, on crossexamination, or otherwise, another fact militating against the party calling him, other witnesses may be called on the same side to disprove such other fact, but the whole of his testimony is not necessarily to be rejected (Bradley v. Ricards, 1 M. & Sc. 133; 8 Bing. 57). The other witnesses called are not to

ness.

discredit him generally, but to contradict him on the fact to which he has deposed, if it be material to the issue, not if merely collateral (Friedlander v. London Assurance Company, 4 B. & Ad. 193). Therefore, where in an action upon a policy of insurance against fire, one issue was, whether the goods of the plaintiff had been destroyed by fire, as alleged in the declaration; and a witness was called for the plaintiff, to prove that part of the goods were supplied by him before the fire; but on being shown an invoice and letter relating to such goods, he stated that they were written by him, but that he never delivered such goods to the plaintiff; and he deposed that the letter (supposed to have been sent from Edinburgh) was written by him in London, at the desire of the plaintiff; that the invoice was drawn up by him (the witness) after the fire, in the presence of the plaintiff's son and shopman; and that the son and shopman persuaded him to state that the goods had been sent according to the invoice and letter: held, that the son and shopman, who had already been examined for the plain.

tiff, might have been called back to contradict all these statements (Ib.). A witness, who upon trial of a cause gives evidence adverse to the party calling him, may be asked whether he had not given a different account of the same matter before the trial. But, per Patterson, J., and Coleridge, J., in the event of a denial by the witness, another witness cannot be called to contradict him in that respect. The party calling a witness may afterwards examine other witnesses as to the truth of statements made by such witness, tending to throw discredit upon them, for the purpose of setting up their credit. The plaintiff in an action for assault, being under age, sued by her father as her next friend. A witness on behalf of the plaintiff gave evidence which went to disprove the cause of action, and stated that the plaintiff's father had tampered with her before the trial as to the evidence she was to give; and on her cross-examination, that the plaintiff had told her that her brother and she went to romp in the cellar, and she fell over a barrel, and so hurt herself. Held, that the father of the plaintiff might be called to contradict the statement as to his having tampered with the witness, and the plaintiff's brother to contradict his ever having romped with the plaintiff, such statements being relevant to the matter in issue. The plaintiff's next friend on a record is a competent witness, and not within the exception in sect. 1 of

the 6 & 7 Vict. c. 85 (Melhuish v. Collier, 19 Law J., Q. B. 493). The defendant being sued as executor of A. in respect of a promissory note purporting to be signed by A. and B., but alleged by the defendant to be forged, stated in cross-examination that he had not heard B. admit having signed the note. Held, that the plaintiff was not at liberty to contradict the defendant by showing that the latter had heard B. make the admission (Palmer v. Trower, 22 Law J., Ex. 32).

(a) That is relevant to the issue; and this must be borne in mind as to all the sections on this subject. See the next, which expressly refers to the "subject matter of the cause.' Except for the purpose of discrediting a witness, no questions can be asked, or evidence offered irrelevant to the subject matter of the cause. Thus, in an action by indorsee against indorser, the evidence offered by the defendants was that of two letters purporting to be written by the defendants to Stevens, the bill-broker, one dated the 2nd, the other the 14th of July, 1830, and purporting to state that Johnson had authority to indorse bills for the defendants. These letters the defendants offered in evidence, for the purpose of showing that they were forgeries. The evidence, when offered, was rejected on the ground that it related to a different transaction with Stevens, prior in point of time to the discounting of the two bills on which the action is

brought. And we are of opinion the evidence was properly rejected on that ground. The plaintiffs are to stand or fall as to their right to recover upon the proof they are able to produce of the conduct of the defendants, amounting in other instances to an authority to their clerk to indorse bills in their names. If the case prove to the satisfaction of the jury that the defendants authorized the clerk to indorse, how is that authority diminished or contradicted by proof, that in two instances in the preceding month, of which they had notice, Johnson, the clerk, forged an authority to indorse? Such evidence appears to us wholly irrelevant to the point of dispute, whether the clerk had or had not authority to indorse these bills in the following month of August (Prescott v. Glynn, 9 Bing. 19; 2 M. & Sc. 78). The principle appears equally applicable whether the contradiction is under this section in examination of a party's own witness, or in cross-examination of an opponent's witness, and whether it be mere contradiction, or contradiction by showing inconsistency of present with previous statements. A recent case very much illustrates the subject. On the trial of an issue, "whether (during a certain period) there arose from the works of the defenders certain noisome, offensive, noxious, or unwholesome smoke, and other vapours, to the nuisance of the pursuer, whereby the produce of his garden was deteriorated," evidence was adduced for the pursuer

66

to show that the smoke and other vapours from the defenders' works had injured the produce of other grounds in the neighbourhood; and also for the defenders to show that their works did not injure the produce of any other grounds; and one of the defenders' witnesses having, on his examination-in-chief, described several gardens in the neighbourhood of the works as in utmost health, was asked, in cross-examination by the pursuer's counsel, if he knew Glasgow field (grounds in the neighbourhood), and having answered that he knew Glasgow field, and never knew of any damage done there," he was then asked whether he had known of any sum having been paid by the "defenders to the proprietors of Glasgow field, for alleged damage there, occasioned by their works." Held, by the House of Lords (overruling the judgment of the Court of Session), that the question was incompetent, as leading to a new collateral inquiry, which, answered either way, could not affect the issue or test the credit of the witness (Tenant v. Hamilton, 7 Cl. & Fin. 122).

(a) Before the act, where an adverse witness, upon cross-examination, voluntarily gave evidence which would have been inadmissible as evidence in chief, and the counsel cross-examining did not object to the evidence being returned on the notes, it was held, the opposite counsel had a right to re-examine as to that evidence (Blewett v. Tregenning, 5 N. & M. 308).

Proof of contradictory statements of

(a) He may be one of the parties; and vide next note.

(b) Sometimes statements made by another may bind the party to a cause, when the clause may apply. See as to the principle on which letters written by an agent may commit the employer (Langhorn v. Allmett, 4 Taunt. 511). As to letters between the agent and his principal, conclusive on the latter, Coates v. Bainbridge, 5 Bing. 58. As to authority to make an admission, Morel v. Harborough, 1 Gale, 146.

(c) Vide suprà. This principle overrides all these sections except as to evidence as to character. The cases as to what evidence is admissible as "relevant to the subject matter of the cause," i. e., the issue, rest rather on different principles from those which determine whether evidence of acts or facts are admissible against a particular party; as where it was held that the fact that, after a fiat had been sued out, certain creditors of the bankrupt had delivered up to the assignees goods which they had received from the bankrupt before the fiat, and before the delivery of certain goods by the bankrupt to defendant held, not admissible evidence against defendant to an action of trover brought against him by the assignees (Backhouse v. Jones, 6 Bing. N. C. 65). The question what is the " subject matter of the cause depends on the issues, as to which see act of 1852, s. 79, and notes. Issue having been taken as to the existence of an agreement between a lessor and his late tenant in satisfaction of all demands: held, that consideration of the proof of

:

the agreement could not be required (Hey v. Moorhouse, 6 Bing. N. C. 52; 8 Scott, 156). See also Rome v. Brenton, 8 B. & C. 758; Evans v. Ogilvie, 2 Y. & Y. 79; Tyrwhitt v. Wynne, 2 B. & A. 554; Culder v. Rutherford, 3 B. & B. 302). In an action for goods sold, the question being whether credit had been given to the defendants, or to a third party, a letter relating to the sale, written by the plaintiff to his agent who made the contract, and not communicated to the defendants, was held to be inadmissible for the plaintiff (Smethurst v. Taylor,14 Law J., N. S., Ex. 86). In an action brought by a contributor to a newspaper against one who was registered as the sole proprietor, the defendant's counsel, for the mere purpose of proving an admission by one S., that he was the real proprietor, proposed on cross-examination to ask the editor whether he had not agreed with S. that the whole expense of editing the paper should not exceed a certain sum. The judge ruled the question to be irrelevant, and refused to allow it to be put. Held. that it was properly disallowed (Watts v. Lyons, 7 Sc. N. R. 1000; 6 Man. & G. 1047). The contest in a cause was as to whether the order which formed the subject matter of the action was given by A. as a principal, or as an agent for the defendant. A. was called as a witness by the defendant, and he stated that he gave the order as principal. He was then asked the following question:-"At the time of your bankruptcy, how was the balance of account between you and

witness.

the defendant?" and he answered, "The balance was against me to a considerable amount." Held, that this was admissible evidence (Gerish v. Chartier, 14 Law J., N. S., C. P. 84; 9 Jur. 69). See a case in which an action for wages, a statement by the plaintiff that the claim which formed the subject matter of the action had been referred, and that the arbitrator had made an award against him was received on behalf of the defendant under the issue of non assumpsit (Murray v. Gregory, 19 Law J., Ex. 355).

(a) Relevant to the subject matter of the cause and inconsistent with his present testimony. Both things must concur. See preceding note. In an action upon a policy of insurance, as for a total loss, the captain having abandoned the vessel, the defence was that there had not been a total loss. The captain was called for the plaintiff, and was cross-examined as to alleged habits of intoxication, and as to his state at the time of the abandonment. A witness for the defendants was asked "whether, from what he saw of the captain's habits in A. before the voyage, he could form any judgment as to his general habits of sobriety or intoxication?" Held, that the question was admissible, the inquiry whether the captain formed a correct judgment under the circumstances being relevant to the issue (Alcock v. Royal Exchange Assurance (Corporation), 13 Jur. 445; 18 Law J., Q. B. 121). In an action for words spoken or written, the ordinary sense of those words is to be taken as to the meaning of the speaker or

writer, unless something be shown to have taken place which may give a peculiar character to the expressions used. In the absence of any such evidence, a witness cannot be asked the question, "What did you understand by the words?" The proper course to be adopted is, first, to lay the foundation by giving such evidence, and then the question becomes admissible (Davies v. Hartly, 3 Ex. 200).

(b) If, on cross-examination, it is proposed to ascertain of a witness, whether he has made representations of any particular nature, immediately after being asked if he made any representation, he must be asked whether he made the representation by parol, or in writing (Queen's Case, 2 B. & B. 292). See next clause as to statements in writing. If a witness, examined in chief on the part of the plaintiff, being asked whether he remembered a quarrel taking place between A. and B., answers that he has heard of a quarrel between them, but does not know the cause of it, and such witness is not asked upon his cross-examination whether he has or has not made a declaration touching the cause of the quarrel, the counsel for the defendant cannot, in order to prove such witness's knowledge of the cause of the quarrel, afterwards examine a witness to prove that the other witness has made such declaration to him touching the cause of such quarrel (Queen's Case, 2 B. & B. 299). So, where he answers that he does not remember it, and such witness is not asked on his cross-examination whether he has or