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statements of

23. If a witness, upon cross-examination as to a Proof of conformer statement made by him relative to the subject tradictory matter of the cause, and inconsistent with his present adverse wittestimony, does not distinctly admit that he has made ness. 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.

This section removes the doubt hitherto entertained, whether when a witness on being asked as to a contradictory verbal statement, neither admits nor denies it, evidence of the statement is admissible. INTRODUCTION, p. Ixvi. 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 not improbably 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, and which statement does not mention the particular fact or circumstance sworn to at the trial. It may be argued, on the other hand, that the refusal to admit the withholding of a fact in a former statement, is in fact a refusal to admit the making of such particular statement, and consequently that proof may be given, under this section, that he did in fact make such omitting statement.

to previous

24. A witness may be cross-examined as to previous Cross-exastatements made by him in writing, or reduced into mination as writing, relative to the subject matter of the cause, statements without such writing being shown to him; but if it is in writing. 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.

For the reasons stated in the INTRODUCTION, this section alters the rule laid down in the Queen's case, as to the cross-examination of witnesses in respect of previous statements in writing. (INTRODUCTION, pp. lxvii., lxviii.)

Cross-examination as to previous statements in writing.

The effect of the section appears to be 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. If he denies that he has made it, the opposite party cannot put in the statement, without first putting it in the witness's hands and calling his attention to it, and to any parts of it relied upon as a contradiction. So far, no difficulty is likely to arise; but suppose 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 possession, 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.

This section appears to be free from the doubt, suggested with reference to the previous section, as to its application 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 he omitted to mention or refer to the fact or circumstance now deposed to.

It must be always borne in mind that the section is confined to written statements made by the witness, relative to the subject matter of the cause. This section, therefore, does not interfere with the decision of the court 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?" And 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 necessary to notice this, as the Commissioners in their Report apparently refer to the case of Macdonnell v. Evans, as one of the judicial decisions proceeding on the rule, which is now superseded.

25. A witness in any cause may be questioned as to whether he has been convicted of any felony or mis

viction of a

demeanor, and, upon being so questioned, if he either Proof of denies the fact, or refuses to answer, it shall be lawful previous confor the opposite party to prove such conviction; and a witness may certificate containing the substance and effect only be given. (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 said conviction, without proof of the signature or official character of the person appearing to have signed the


INTRODUCTION, pp. lxviii.-lxx. The mode of proving the conviction is the same as that provided by the 7 & 8 Geo. IV., 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 essential to call a witness, who was present at the trial to which the certificate refers. (Reg. v. Crofts, 9 C. & P., 219.)

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 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 he is to judge for himself whether the effect of the answer would be such as to subject him to a criminal charge (Fisher v. Ronalds, 22 L. J. R. 62 C.P.). 3. Evidence cannot be adduced to contradict the


witness, unless the fact sought to be established is material to the issue.

4. Before such evidence is given, the question must be put to the witness, in order to afford him an opportunity for explanation.

26. It shall not be necessary to prove by the attestwitness need ing witness any instrument to the validity of which not be called, attestation is not requisite; and such instrument may certain cases. be proved by admission, or otherwise, as if there had been no attesting witness thereto.

except in

For the reasons for this enactment, see INTRODUCTION, p. lxx. The recent decision, there referred to, was in the case of Whyman v. Garth, 8 Ex., 803.

As to calling upon a party to admit a document, by notice to admit, and the proof by affidavit of such admission when made, see The Common Law Procedure Act, 1852, ss. 117, 118; and as to the form of a notice to admit, R. G. H. T., 1853, 29.

Calling the attesting witness is only dispensed with in those cases in which an 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.

The instruments to the validity of which attestation is requisite may be divided into two classes; first, instruments which the parties themselves, or those under whom they claim or act, have stipulated, shall require one or more attesting witnesses; and, secondly, instruments which require attestation under some statutable provision. Of the former class, the most usual are deeds and instruments executed under powers contained in and reserved by other instruments. Powers of appointment under marriage settlements afford a familiar illustration. Among the other class of instruments requiring attestation may be enumerated :

Wills and codicils (1 Vic., c. 26).

Warrants of attorney, and cognovits (1 & 2 Vic. c. 110).

Agreements between the master of a ship and a merchant seaman (The Merchant Shipping Act, 1854, Part III.)

Even in these cases the necessity for calling the attesting witness only arises where it is necessary to prove the instrument at all. For the parties against whom any of these instruments requiring attestation are sought to be used, may waive the necessity for calling the attesting witness by admissions. Thus, if in the course of the

proceedings in the cause, the party voluntarily admits the execution, or if by his pleadings he does not require the execution to be proved, there is no necessity for calling the attesting witness. But where proof is required, the necessity for calling the attesting witness cannot be avoided by putting the party to the deed, and against whom it is sought to be used, in the witness-box, and forcing an admission of the execution from him (Whyman v. Garth, 8 Ex. 803).


27. Comparison of a disputed writing with any Comparison writing proved to the satisfaction of the judge to be of disputed 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.

The nature of the alteration of the previous rule of law effected by this section has been fully stated in the INTRODUCTION, pp. lxxii-lxxv.

documents at

28. Upon the production of any document as Provision for evidence at the trial of any cause, it shall be the duty stamping of the officer of the court, whose duty it is to read such the trial. document, to call the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole, or (as the case may be) the deficiency of the stamp-duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid.

The importance of this section to suitors has been already pointed out [INTRODUCTION, p. lxxv]; and if the duty cast upon the officer of the court be exercised with vigilance, it is not improbable that the revenue will be a considerable gainer, as it is no longer in the power of parties, by mutual agreement, to waive objections to the admissibility of instruments. Hitherto if the parties did not call the attention of the court to the stamp, judges were not vigilant to discover defects, but would even allow objections to be withdrawn-no reliance can now be placed on the forbearance of an adversary; and, on the other hand, the cases are very rare, in which the opposite party will not avail himself of the right, which of course is not taken away, of himself objecting at the trial to the admissibility of instruments. It is true the objection is no longer fatal if well founded, nor if overruled is it a ground of moving for a new trial; but as the remedy

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