The Common Law Procedure Acts and Other Statutes Relating to the Practice of the Superior Courts of Common Law and the Rules of Court, with Notes

adverse wit

ness.

statements of former statement made by him relative to the subjectmatter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be 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.

Cross examination as to previous

writing.

It was never doubted that statements by witnesses on other occasions, relevant to the matter at issue, and expressly denied by them on the trial, were admissible in order to impeach the value of that testimony. As the proof allowed to be given by this section is of some affirmative statement, a question may arise, as to whether this section applies to the cross-examination of a witness, for the purpose of showing that he has made a statement, relative to the subject-matter of the cause, in which statement the particular fact or circumstance sworn to at the trial was not mentioned. It may be argued, that the refusal to admit the withholding of a fact in a former statement, is in fact a refusal to admit the making of that precise statement; and consequently that proof may be given, under this section, that he did in fact make such partial, and therefore inconsistent statement.

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

This section alters the rule laid down in the Queen's case (2 B. & B. 286, ante, p. 223), as to the cross-examination of witnesses in respect of previous statements in writing.

The effect is this: the witness, in the first instance, may be asked, whether he has made such and such a statement in writing, without its being shown to him (Sladden v. Serjeant, 1 F. & F. 322, Willes, J.). If he denies that he has made it, the opposite party cannot put in the statement, without first calling his attention to it (showing it, or at least reading it to him), and to any parts of it relied upon as a contradiction. If the witness instead of denying that he has made the statement, admits it, although the object of the cross-examining counsel has been attained, it may be very important for the party calling the witness to have the whole statement, which may not be in his pos

session, before the court and jury. If he is aware of the contents, he will, it would seem, in such case, be at liberty to re-examine the witness, as to the residue of the statement, without its being produced, on the general rule that if part of any connected conversation or statement be given, the whole may be used; or he may ask the judge, under the latter part of the section, to require the production of the writing.

It must be always borne in mind that this section is confined to written statements made by the witness, relative to the subjectmatter of the cause. This section, therefore, does not interfere with the decision in Macdonnell v. Evans (11 C. B. 930). In that case, upon the cross-examination of a witness, a letter in his own handwriting was shown to him, and he was asked-" Did you not write that letter in answer to a letter charging you with forgery?" It was held that the question was inadmissible for any purpose, inasmuch as it was an attempt to get at the contents of a written document, which, for anything that appeared, might have been produced. As the question, therefore, referred to the contents of a letter written by a third person, and not by the witness, the case is not affected by this section. It is right to notice this, as the Commissioners, in their Second Report, apparently refer to the case of Macdonnell v. Evans (ubi supra) as one of the judicial decisions proceeding on the rule, which is now superseded.

But, in Henman v. Lester (12 C. B., N. S. 776: L. J. 31, C. P. 366), where a party to the cause gave evidence himself in support of his case, it was held, by Willes. J., and Keating, J. (Byles, J., dissenting), that he might be asked, on cross-examination, with a view of testing his credit, whether an action had not been brought against him by another person in the county court, in respect of a similar claim, upon which he had given evidence, and had had notwithstanding a verdict of the jury against him; and that he might be so examined without production and proof of the record of the proceedings in such county court.

Held, also, by Willes, J., and Keating, J., that, even if the judge at the trial ruled wrongly in allowing such questions to be put and answered, the court would not on that account grant a new trial unless it could see that injustice had been occasioned by such mistaken ruling.

tion of a

25. A witness in any cause may be questioned as to Proof of prewhether he has been convicted of any felony or mis- vious convicdemeanour, and, upon being so questioned, if he either witness may denies the fact or refuses to answer, it shall be lawful be given. 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

Attesting

witness need

except in

said conviction, without proof of the signature or official character of the person appearing to have signed the

same.

The mode of proving the conviction is the same as that provided by the 7 & 8 Geo. 4, c. 28, s. 11, in the case of persons charged with committing a felony, after a previous conviction for felony. It has been held, under that statute, that the certificate must state, that judgment was given for the felony mentioned in it; so that it is not sufficient for it to state a conviction (Reg. v. Ackroyd, 1 C. & K. 158). With respect to the identity, it is sufficient to prove that the witness is the person who underwent the sentence mentioned in the certificate; and it is not absolutely necessary to call a witness, who was present at the trial to which the certificate refers (Reg. v. Crofts, 9 C. & P. 219). As to the signature to the certificate see Reg. v. Parsons (L. R. 1 C. C. 24).

This section does not interfere with the previous right, to cross-examine a witness as to the commission of offences, either for the purpose of discrediting him, or of contradicting him, if the question is so connected with the point in issue that the witness may be contradicted by the evidence if he deny the facts. Four rules on this subject may be considered as established in practice.

1. A witness may be asked any question, whether with a view to his discredit, or to contradict him (where contradictory evidence is admissible), although the answer may also tend to subject him to a criminal prosecution, a penalty or a forfeiture.

2. If the answer has such tendency, the witness is not bound to give it, whatever the object or effect of the question may be ; and it was at one time thought that he was to judge for himself whether the effect of the answer would be such as to subject him to a criminal charge (Fisher v. Ronalds, 12 C. B. 762; but see now Osborne v. London Dock Company, 10 Exch. 698; L. J. 24, Ex. 140; Reg. v. Boyes, 1 B. & S. 311; L. J. 30, Q. B. 301; Ex parte Fernander, 10 C. B., N. S. 3; L. J. 30, C. P. 321; see also notes to sect. 51, post): and when the witness assigns insufficient reason for not answering, he may certainly be compelled to answer (Re Aston's Case, 4 De G. & J. 320; 27 Beav. 474). See also Best on Evidence, Book II. Part I. Chap. I.

3. Evidence cannot be adduced to contradict the witness, if he deny the imputation, unless the fact sought to be established is material to the issue.

4. Before such evidence is given, the witness should be further questioned upon the subject, in order to afford him an opportunity for explanation.

26. It shall not be necessary to prove by the attestnot be called, ing 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.

Calling the attesting witness is only dispensed with in those cases, in which attestation is not requisite to the validity of the instrument. Where attestation is necessary to the validity of an instrument; the witness must be called, or his absence accounted for, and his signature proved (Bowman v. Hodgson, L. R. 1 P. & M. 362); unless the instrument proves itself by age and proper

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