proof of the identity of the person of the offender, be sufficient evidence of such conviction without proof of the signature or official character of the person appearing to have signed the same. R. S. C. c. 174, s. 230.

See ss. 628 & 676 ante, to which this s. 694 is intended to apply: see 34 & 35 V. c. 112, s. 18 (Imp.). The enactment does not extend to proof of a previous acquittal.

PREVIOUS CONVICTION OF WITNESS.

695. A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction; and a certi. ficate, as provided in the next preceding section, shall, upon proof of the identity of the witness as such convict, be sufficient evidence of his conviction, without proof of the signature or the official character of the person appearing to have signed the certificate. R. S. C. c. 174, s. 231.

This enactment is taken from the 28 V. c. 18, s. 6, of the Imperial statutes, An Act for Amending the Law of Evidence and Practice on Criminal Trials.

Questions tending to expose the witness to criminal accusation, punishment or penalty need not be answered; no one can be forced to criminate himself. But this privilege can be invoked only by the witness himself. Nor is the judge bound to warn the witness of his right, though he may deem it proper to do so: 2 Taylor Ev. par. 1319; R. v. Coote, L. R. 4 P. C. 599, 12 Cox, 557. Whether the answer may tend to criminate the witness, or expose him to a penalty or forfeiture, is a point which the court will determine, under all the circumstances of the case, as soon as the protection is claimed, but without requiring the witness fully to explain how the effect would be produced; for, if this were necessary, the protection which the rule is designed to afford to the witness would at once be annihilated.

It is now decided, contrary to an opinion formerly entertained by several of the judges, that the mere declaration of a witness on oath that he believes that the answer will tend to criminate him will not suffice to protect him from answering, when the other circumstances of the case are such as to induce the judge to believe that the answer

would not really have that tendency. In all cases of this kind the court must see from the surrounding circumstances, and the nature of the evidence which the witness is called to give, that reasonable ground exists for apprehending danger to the witness from his being compelled to answer. When, however, the fact of such danger is once made to appear, considerable latitude should be allowed to the witness in judging for himself of the effect of a particular question; for it is obvious that a question, though at first sight apparently innocent, may, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering. On the whole, as Lord Hardwicke once observed, "these objections to answering should be held to very strict rules," and, in some way or other, the court should have the sanction of an oath for the facts on which the objection is founded: 2 Taylor Ev. par. 1311.

If the prosecution to which the witness might be exposed, or his liability to a penalty or forfeiture, is barred by lapse of time, the privilege has ceased and the witness must answer: 2 Taylor Ev. par. 1312.

Whether a witness is bound to answer any question, the direct and immediate effect of answering which might be to degrade his character, seems doubtful, although where the transaction as to which the witness is interrogated forms. any material part of the issue he will be obliged to answer, however strongly his evidence may reflect on his character.

Where, however, the question is not directly material to the issue, but is only put for the purpose of testing the character and consequent credit of the witness, there is much more room for doubt. Several of the older dicta and authorities tend to show that in such case the witness is not bound to answer; but the privilege, if it still exists, is certainly much discountenanced in the practice of modern times. Even Lord Ellenborough, who is reported to have held on one occasion that a witness was not bound to state

whether he had not been sentenced to imprisonment in a house of correction, and on another, that the question could not so much as be put to him, seems in a later case to have disregarded the rules thus enunciated by himself; for, on a witness declining to say whether or not he had been confined for theft in gaol, his Lordship harshly observed: “If you do not answer the question I will send you there."

No doubt cases may arise where the judge, in the exercise of his discretion, would very properly interpose to protect the witness from unnecessary and unbecoming annoyance. For instance, all inquiries into discreditable transactions of a remote date might, in general, be rightly suppressed; for the interests of justice can seldom require that the errors of a man's life, long since repented of, and forgiven by the community, should be recalled to remembrance at the pleasure of any future litigant. So questions respecting alleged improprieties of conduct, which furnish no real ground for assuming that a witness who could be guilty of them would not be a man of veracity, might very fairly be checked. But the rule of protection should not be further extended; for if the inquiry relates to transactions comparatively recent, bearing directly upon the moral principles of the witness, and his present character for veracity, it is not easy to perceive why he should be privileged from answering, notwithstanding the answer may disgrace him. It has, indeed, been termed a harsh alternative to compel a witness either to commit perjury or to destroy his own reputation; but, on the other hand, it is obviously most important that the jury should have the means of ascertaining the character of the witness, and of thus forming something like a correct estimate of the value of his evidence. Moreover, it seems absurd to place the mere feelings of a profligate witness in competition with the substantial interests of the parties in the cause: 2 Taylor Ev. pars. 1313, 1314, 1315; 3 Russ. 543, 547.

By the words "or refuses to answer" in the said section (and these words are also in the Imperial statute), it would,

at first sight, seem that the witness questioned as to a previous conviction is not bound to answer; but it is obvious that this is not so; and the above quotation from Taylor goes to show clearly that the question, if insisted upon by the court, must be answered. Indeed, in a great many cases, the party putting the question could not be expected to be ready, on the spot, to prove the conviction of the witness otherwise than by himself.

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By the Canada Evidence Act, 1893, 56 V. c. 31, s. 5, one is now excused from answering any question upon the ground that the answer may tend to criminate him.

PROOF OF ATTESTED INSTRUMENTS.

696. It shall not be necessary to prove by the 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. R. S. C. c. 174, s. 232.

This is, verbatim, s. 7 of 28 V. c. 18 of the Imperial statutes. Formerly the rule was that if an instrument, on being produced, appeared to be signed by subscribing witnesses, one of them, at least, should be called to prove its execution. The above clause abrogates this rule. It applies only to instruments to the validity of which attestation is not requisite.

EVIDENCE AT TRIAL FOR CHILD MURDER.

697. The trial of any woman charged with the murder of any issue of her body, male or female, which being born alive would, by law, be bastard, shall proceed and be governed by such and the like rules of evidence and presumption as are by law used and allowed to take place in respect to other trials for murder. R. S. C. c. 174, s. 227.

If the mother of an illegitimate child endeavoured privately to conceal his birth and death she was presumed to have murdered it, unless she could prove that the child was born dead. Taylor, on Ev., note 7, p. 128, justly says that this rule was barbarous and unreasonable.

COMPARISON OF WRITINGS.

698. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the

same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. R. S. C. c. 174, s. 233.

This enactment is taken from the 28 V. c. 18 of the Imperial statutes, and is, verbatim, s. 8 thereof. Before this enactment, it was an established rule that, in a criminal case, handwriting could not be proved by comparing a paper with any other papers acknowledged to be genuine; neither the witness nor the jury were allowed to compare two writings with each other, in order to ascer tain whether both were written by the same person: 2 Taylor Ev. par. 1667.

PARTY DISCREDITING HIS OWN WITNESS.

699. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, such party may contradict him by other evidence, or, by leave of the court, may prove that the witness 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, shall be mentioned to the witness, and he shall be asked whether or not he did make such statement. R. S. C. c. 174, s. 234.

This is s. 3 of the 28 & 29 V. c. 18 of the Imperial statutes, An Act for Amending the Law of Evidence and Practice on Criminal Trials.

In the Province of Quebec a similar enactment is contained in Article 269 of the Code of Civil Procedure.

The word adverse in the above clause does not mean merely unfavourable but hostile; 2 Taylor Ev. par. 1282. However, in Dear v. Knight, 1 F. & F. 433, Erle, J., appears to have regarded a witness as "adverse," simply because he made a statement contrary to what he was called to prove.

The first part of the clause seems to have always been the law. It was decided in Ewer v. Ambrose, 3 B. & C. 746, that if a witness called to prove a fact prove the contrary his credit could not be impeached by general evidence, but, in R. v. Ball, 8 C. & P. 745, that the party is at liberty to make out his case by other and contradictory evidence. The portion of the clause allowing a party to