tents of a lost letter, swore that it did not contain a certain passage; and a witness was called by the defendant to contradict this statement, Lord Ellenborough ruled that, after exhausting the memory of the latter witness as to the contents of the letter, he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side; for that otherwise it would be impossible ever to come to a direct contradiction. Courteen v. Touse, 1 Camp. 43. And where, in cross-examination, a witness, being asked as to some expressions which he had used, denied them, and the counsel on the other side called a person to prove that the witness had used such expressions, and read to him the particular words from his brief, Abbott C. J. held that he was entitled to do so. Edmonds v. Walter, 3 Stark. 7. But where a witness denied, on cross-examination, the use of certain expressions by him in a conversation at which both plaintiff and defendant were present, it was held that a witness, called to prove that such expressions were used, could not have the very words suggested to him; for the conversation was evidence in itself, and was not merely proved for the purpose of discrediting the witness. Hallett v. Cousens, 2 M. & Rob. 238.

Cross-examination.] Upon cross-examination, counsel may lead a witness so as to bring him directly to the point as to the answer; but he cannot, if the witness shows a leaning in his favour, go the length of putting into the witness's mouth the very words which he is to echo back again. Hardy's case, 24 How. St. Tr. 755. It is not competent to counsel, on cross-examination, to question a witness concerning a fact wholly irrelevant to the matter in issue, for the mere purpose of discrediting him by calling other witnesses to disprove what he says; Spenceley v. De Willott, 7 East, 109.; and should the witness answer such a question, evidence cannot be given to contradict him. Harris v. Tippett, 2 Camp. 637.; R. v. Watson, 2 Stark. 157. Where a witness is brought into court merely for the purpose of producing a written instrument to be proved by another witness, he need not be sworn ; and, unless sworn, the other party will not be entitled to cross-examine him. Antè, p. 103. And where a person called to produce a document was sworn by mistake and was asked a question which he did not answer, it was held that the opposite party was not entitled to crossexamine him. Rush v. Smith, i C. M. & R. 94.

A witness cannot properly be asked, on cross-examination, whether he has written such a thing; the right course is to put the writing into his hands, and ask him whether it is his writing. Queen's case, 2 B. & B. 293. Nor can he be asked as to the contents of his own affidavit, without putting the original into his hands; per Tindal C. J., recognised in Bastard v. Smith, 10 A. & E. 213. If, on cross-examination, a witness admits a letter to be in his handwriting, he cannot be questioned by counsel whether statements, such as they may suggest, are contained in it; but the whole of the letter must be read in evidence. Queen's case, 2 B. & B. 288. According to the ordinary rule of proceeding, the letter is to be read as part of the evidence of the cross-examining counsel, after he shall have opened his case; but if the cross-examining counsel suggest to the court that he wishes to have the letter read immediately, in order that he may found certain questions on the contents of that letter which could not be well or

effectually done without reading the letter itself, it may be so read, subject to all the consequences of having it received as part of his evidence. Id. 290. A witness on cross-examination may, if he pleases, admit not having mentioned a fact on a former examination, though that examination is in writing and not produced. Ridley v. Gyde, 1 M. & Rob. 197.

So

If a wrong witness is called in consequence of a mistake in his name, and is dismissed on the discovery of the mistake, the other side has no right to cross-examine him. Clifford v. Hunter, 3 C. & P. 16. if he is called by error of the counsel and actually sworn, yet, if dismissed before examination, he is not liable to be cross-examined. Wood v. Mackinson, 2 M. & Rob. 273.

It is in the discretion of the judge whether he will permit a witness to be recalled. Adams v. Bankart, 1 C. M. & R. 681.; Acc. Queen's case, 2 B. & B. 301.

Re-examination.] A re-examination, which is allowed only for the. purpose of explaining any facts which may come out on cross-examination, must be confined to the subject-matter of the cross-examination. The rule with regard to re-examinations is thus laid down by Abbott C. J. in the Queen's case, 2 B. & B. 297.: "I think the counsel has a right, on re-examination, to ask all questions which may be proper to draw out an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; but he has no right to go further, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness."-"I distinguish be tween a conversation with a party to a suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit, relative to the subject-matter of the suit, are in themselves evidence against him in the suit; and if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court all that was said by his client in the same conversation, not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against the party, without giving the party at the same time the benefit of the entire residue of what he said on the same occasion." The language of Abbott C. J., in the Queen's case has however, been qualified by the Court of Q. B. in Prince v. Samo, 7 A. & E. 627. which decides that a witness, cross-examined as to assertions of the plaintiff in a particular conversation, cannot be re-examined as to other unconnected assertions of the plaintiff in the same conversation, although connected with the subject of the suit. Such partial cross-examination does not necessarily let in the whole conversation. Where a witness of the plaintiff stated, on cross-examination, facts which were not strictly evidence, but might prejudice the plaintiff, it was held that, unless the defendant applied to strike them out of the judge's notes, the plaintiff was entitled to re-examine upon them, Blewett v. Tregonning, 3 A. & E. 554.

Credit of witness, how impeached and supported.] In order to impeach the credit of a witness, evidence may be given of statements made by him at variance with his testimony on the trial; but to lay a foundation for the evidence of such contradictory declaration or conversation, the witness must be asked, on cross-examination, whether he has made such declaration, or held such conversation. Queen's case, 2 B. & B. 301. Before you can contradict a witness by showing that he has, at some other time, said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradictions. It is not enough to ask him the general question, whether he has ever said so and so. Per Tindal C. J., Angus v. Smith, M. & M. 474. Where the witness merely says that he does not recollect making the statement, evidence to prove that he made the statement has been held inadmissible; there must be an express denial. Pain v. Beeston, 1 M. & Rob. 20. Where the object in proving the statements of a witness is not merely to contradict him, but to impeach his moral character by proof of loose and unbecoming language, the evidence seems admissible without previous inquiry of himself. Carpenter v. Wall, 11 A. & E. 803. It has been doubted whether, to corroborate the testimony of the witness whose credit has been impeached, evidence is admissible that the witness affirmed the same thing before on other occasions; Gilb. Ev. 150.; B. N. P. 294.; Lutterell v. Reynell, 1 Mod. 283.; but the better opinion is, that such evidence is inadmissible. R. v. Parker, 3 Doug. 242. It has been observed that the rule is subject to this exception, that where the counsel on the other side impute a design to misrepresent from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts. 1 Phill. Ev. 293. So, it is said by Sir W. D. Evans, " If a witness speaks to facts negativing the existence of a contract, and insinuations are thrown out that he has a near connexion with the party on whose behalf he appears; or that a change of circumstances has excited an inducement to recede from a deliberate engagement, the proof by unsuspicious testimony that a similar account was given when the contract alleged had every prospect of advantage removes the imputation resulting from the opposite circumstances. Upon an accusation for rape, the disclosure of the fact upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material, and the evidence of them is constantly admitted without objection." Notes to Pothier on Oblig. vol. ii. p. 251.

......

If a witness gives evidence contrary to that which the party calling him expects, that party cannot give general evidence to show that the witness is not to be believed on his oath. Ewer v. Ambrose, 3 B. & C. 749. And it has been questioned whether it is competent to him to prove that the witness has previously given a different account of the transaction. Id. ibid. The point arose in a late case where the plaintiff, having called a witness who gave adverse evidence, showed that he had made a different statement to his attorney previously to the trial. Denman C. J., and Bolland B. (justices of the C. P. at Lancaster,) differed in opinion as to the reception of this evidence. Wright v. Beckett,

1 M. & Rob. 414. See R. v. Oldroyd, R. & R. C. C. 88. In Dunn v. Aslett, 2 M. & Rob. 122., Denman C. J. adhered to his opinion of its admissibility. In Holdsworth v. Mayor of Dartmouth, Exeter, Sum. A. 1838, MSS., where defendant pleaded fraud to an action on a bond, and called an adverse witness who denied he had ever said the transaction was fraudulent, Parke B. refused to let defendant call other witnesses to prove previous contradictory declarations of the former witness, and said he agreed with Bolland B. in the above case. S. C. 2 M. & Rob. 153. And this latter ruling has been followed by several other judges. Winter v. Butt, Id. 357. Allay v. Hutchings, Id. 358. note (a). At all events, the party may prove the facts denied by other witnesses. Lowe v. Jolliffe, 1 W. Bl. 365. Alexander v. Gibson, 2 Camp. 555. Richardson v. Allan, 2 Stark. 334. In an action upon a policy of insurance against fire, one issue was, "whether or not goods of the plaintiff had been destroyed by fire as alleged in the declaration:" a witness was called for the plaintiff to prove that part of the goods were supplied to the plaintiff by him before the fire; but, on being shown an invoice and letter relating to such goods, he stated that, though they were written by him, he had never delivered such goods to the plaintiff'; 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 who persuaded him to state that the goods had been sent according to the invoice and letter. It was held, that the son and shopman, who had already been examined for the plaintiff, might be called back to contradict all these statements. Friedlander v. London Assurance Company, 4 B. & Ad. 193. Where a party calls other witnesses to contradict his own witness as to a particular fact, the whole of the testimony of the contradicted witness is not therefore to be necessarily repudiated. Bradley v. Ricardo, 8 Bing. 57.

Opinion of witness when admissible.] In general the opinion of a witness as to any of the facts in issue is inadmissible as evidence, unless upon questions of science. Thus in an action where the question is whether a bank, erected to prevent the overflowing of the sea, has caused the choking up of a harbour, the opinions of scientific men as to the effect of such an embankment upon the harbour are admissible. Folkes v. Chadd, 3 Doug. 157. And where the question is, whether a seal has been forged, seal engravers may be called to show a difference between a genuine impression and that supposed to be false. S. C. ibid. per Lord Mansfield. So a physician, who has not seen the particular patient, may, after hearing the evidence of others at the trial, be called to prove on oath the general effects of the disease described by them, and its probable consequences in the particular case; Peake Ev. 208.; or whether the facts proved are symptoms of insanity. R. v. Searle, 1 M. & Rob. 75. The opinion of a person conversant with the business of insurance, as to whether the communication of particular facts would have varied the terms of insurance, has been admitted in evidence on several occasions both in actions on the policy, and against insurance brokers for negligence; Berthon v. Loughman, 2 Stark. 258. ; Rickards v. Murdock, 10 B. & C. 527.; Chapman v. Walton, 10 Bing. 57.; but in Campbell v. Rickards, 5 B. & Åd. 840., a new trial was granted, because such evidence had been admitted, and it was held that

the materiality of a fact concealed was a question for the jury alone, and that "witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced if the parties had acted in one way rather than another." The evidence of a ship-builder has been admitted on a question of sea-worthiness, though he was not present at the survey. Thornton v. Royal Exchange Ass. Co. Peake, 25. A person versed in the laws of a foreign country may give evidence as to what, in his opinion, would be the effect of certain facts, according to the law of that country. R. v. Wakefield, printed report, (Murray's ed.) p. 238. Chaurand v. Angerstein, Peake, 44.

As to calling persons skilled in handwriting to prove forgery or to establish the genuineness of ancient documents, see antè, p. 92.

Memorandum to refresh witness's memory.] A witness will be allowed to refer to an entry, or memorandum, made by himself at the time or shortly after the occurrence of the fact to which it relates, in order to refresh his memory; and this though the entry or memorandum would not of itself be evidence; Kensington v. Inglis, 8 East, 289.; as a' receipt on unstamped paper. Maugham v. Hubbard, 8 B. & C. 14. But he cannot refresh his memory by extracts from a book, though made by himself. Doe v. Perkins, 3 T. R. 749. Nor by a copy of a book; unless the witness himself saw the copy made and checked it at the time by personal examination, while the subject was fresh in his recollection; for then the copy is, in effect, an original entry by himself. Burton v. Plummer, 2 A. & E. 341. So a witness may refresh his memory by reference to entries in a book, which he did not write with his own hand, but which he examined from time to time shortly after the events recorded. Burrough v. Martin, 2 Camp. 112. Where a witness, on seeing his initials affixed to an entry of payment, said, “I have no recollection that I received the money; I know nothing but by the book, but seeing my initials I have no doubt that I received the money;" this was held sufficient evidence. Maugham v. Hubbard, suprà. Acc. R. v. St. Martin's, Leicester, 2 A. & E. 210. A printed form of lease, read over to a tenant as the terms of his tenancy but not signed according to Statute of Frauds, may be used to refresh the memory of the witness who read it to him. Bolton v. Tomlin, 5 A. & E. 856. If the witness be blind, the paper may be read over to him. Catt v. Howard, 3 Stark. 4. A witness will not be permitted to refresh his memory from an affidavit, made by him shortly after the fact to be proved, on examination before commissioners of bankrupts. Smith v. Morgan, 2 M. & Rob. 257. In that case, Tindal C. J. permitted it to be so far used as to refresh the memory of the witness as to the date of a single transaction, on the authority of Vaughan v. Martin, 1 Esp. 440. ; but it is observable that in Vaughan v. Martin, the whole account of the act of bankruptcy seems to have been read to the witness, a very aged person, who was then asked, "whether the matters there stated were true?"

Where the witness cannot speak without having referred to a book, that book must be produced in court; Howard v. Canfield, 5 Dowl. P. C. 417., per Coleridge, J.; and the counsel on the other side has a right to inspect it, without being bound to read it in evidence. Sinclair v. Stevenson, 1 C. & P. 582. R. v. Ramsden, 2 C. & P. 603. He may