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the witness to the subject of the inquiry. Per Ld. Ellenborough, Nicholls
Where a witness, examined in chief, by his conduct in the box shows himself decidedly adverse to the party calling him, it is in the discretion of the judge to allow him to be examined, as if he were on cross-examination. Bastin v. Carew, Ry. and Moo. N. P.C. 127 (f). Clarke v. Salfery, Id. 126 (8); Murphy's case, 8 C. and P. 297 (h); per Lord Abinger, C. B., Chapınan's case, 8 C. and P. 558 (i). But if he stands in a situation which, of necessity, makes him adverse to the party calling bim, it was held by Best, C. J., that the counsel may, as a matter of right, cross-examine him. Clarke v. Saffery, Ry. and Moo. N. P. C. 126 (k).
(a) Eng. Com. L. Rep. ii. 305. (b) Id. ii. 313. (c) Id. ii. 280. (d) Id. (c) Id. xiv. 145.
(1) Id. xxi. 391. (g) Id. 395. (h) Id. xxxiv. 397. (i) Id. 523. (k) Id. xxi. 395.
Somewhat similar to this, is the question whether, where a witness, called for one party, is afterwards called by the other, the latter party may give his examination the form of a cross-examination ; and it has been held that he may; for, having been originally examined as the witness of one party, the privilege of the other to cross-examine remains through every stage of the case. Dickenson v. Shee, 4 Esp. 67, 1 Stark. Ev. 162, 2d ed.
Cross-examination.] Leading questions are admitted on cross-examination, in which much larger powers are given to counsel than in the original examination. The form of a cross-examination, however, depends in some degree like that of an examination in chief, upon the bias and disposition evinced by the witness under interrogation. If he should display a zeal against the party cross-examining him, great latitude with regard to leading questions may with propriety be admitted. See Phill. Ev. 912, 8th ed. But if, on the other hand, he betrays a desire to serve the party who cross-examines him, although the court will not in general interfere to prevent the counsel from putting leading questions, yet it has been rightly observed, that evidence obtained in this manner is very unsatisfactory and open to much remark. See 1 Stark. Ev. 162, 2d ed. The rule with regard to putting leading questions on *cross-exam- [ *156 ] ination was thus laid down by Mr. Justice Buller. “ You may lead a witness upon cross-examination, to bring him directly to the point, as to the answer ; but you cannot go the length of putting into the witness's mouth the very words he is to echo back again.” Hardy's case, 24 How. St. Tr. 755.
In a recent case, where an objection was made to leading a willing witness, Alderson, B., said, “ I apprehend you may put a leading question to an unwilling witness, on the examination in chief, at the discretion of the judge, but you may always put a leading question in cross-examination, whether a witness be unwilling or not.” Parkin v. Moon, 7 C. & P. 408 (a).
Irrelevant questions will not be allowed to be put to a witness on crossexamination, although they relate to facts opened by the counsel on the other side, but not proved in evidence. Lucas v. Novosilieski, 1 Esp. 297. Nor will such questions be allowed to be put for the purpose of discrediting the witness, by calling other testimony to contradict him (1). Vide post, p. 169. Thus on a trial for usury the defendant's counsel proposed to cross-examine one of the plaintiff's witnesses, to certain transactions which he had had with third persons, but Lord Ellenborough refused to permit the question to be put, and the court held that he was right, observing, that it had been decided over and over again, that on cross-examination to try the credit of a witness, only general questions could be put, and that he could not be asked as to any collateral and independent fact, merely with a view to contradict him afterwards by calling another witness. Spenceley v. Willott, 7 East, 108.
(1) Ware v Ware, 8 Greenl. 42. Atwood o. Felton, 7 Conn. 66. State v. Alexander, 2 Rep. Const. Ct. 171. Cross-examination to irrelevant matter will not bring it into the issue. Griffith o. Eshleman, 4 Watts, 51. Page o. Hemans, 14 Maine, 478. Goodhand o. Benton, 6 Gill & J. 481. Williams o. The State, Wright, 42. Smith o. Dreer, 3 Whart. 154. Norton o. Valentine, 15 Maine, 36. See The People é. Byrd, 1 Wheeler's C. C. 242.
(a) Eng. Com. L. Rep. xxxii. 559.
Counsel cannot assume that a witness has made a statement on his examination in chief, which he has not made; Hill v. Coombe, MS. Mann. Dig. N. P. 337; or put a question which assumes a fact not in proof. Doe v. Wood, Id.
A reporter to a newspaper cannot be asked on cross-examination, whether, in articles he has written for the newspaper, he has not called the opposite party nicknames, as that is part of the contents of the articles. Murphy's case, 8 C. and P. 297 (a).
Where a witness, on being asked upon cross-examination, to repeat an answer she had previously given before the whole of it was taken down, omitted a part of it, and denied she had ever uttered such part, the judge allowed the shorthand reporter of the court, who had taken down the answer, to be examined to prove the fact. 0. B. Slater's case, 6 C. and P. 334 (b).
If the counsel, on cross-examining a witness, puts a paper into his hand, and questions him upon it, and anything comes of such questions, the counsel on the other side have a right to see the paper, and re-examine upon it, but if the cross-examination founded on the paper entirely fails, the opposite counsel have no right to see the paper. Duncombe's case, 8 C. and P. 369 (c).
Where a witness is called merely to produce a document, which can be proved by another, and he is not sworn, he is not subject to cross[ *157 ] examination. Simpson v. Smith, 1822, cor. Holroyd, J., *Phill. Ev. 909, 8th ed., and per Bayley, J., 1824, 1 Stark. Ev. 179, 2d ed.; Davis v. Dale, Moo, and Malk. 514 (d). Thus where, on an indictment for perjury, a sheriff's officer had been subpænaed to produce a warrant of the sheriff, after argument he was ordered to do so, without having been sworn. Murlis's case, Moo. and Malk. 515. But where the party producing a document is sworn, the other side is entitled to cross-examine him, although he is not examined in chief. Brooke's case, 2 Stark. 472 (e). Where, however, a person, called to produce a document, was sworn by mistake, and asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smyth, 4 Tyr. 675, 1 Cr. M. and R. 94. So where a witness has been asked only one immaterial question, and his evidence is stopped by the judge, the other party has no right to cross-examine him. Creevy v. Carr, 7 C. and P. 64 (f). Where a witness is sworn, and gives some evidence, if it be merely to prove an instrument, he is to be considered a witness for all purposes. Morgan v. Bridges, 2 Stark. 314 (8).
As already stated, it as been held at nisi prius, that if a witness has been once examined by a party, the privilege of cross-examination continues in every stage of the cause, so that the other party may call the same witness to prove his case, and in examining him may ask leading questions. Dickenson v. Shee, 4 Esp. 67; see observations on this case, Phill. Ev. 911, 8th ed. (1).
(1) Upon cross-examination, the witness cannot be asked a leading question in respect to new matter. Harrison o. Rowan, 3 Wash. C. C. Rep. 580.. “ And here" says Gibson, C. J., in Ellmaker o. Buckley, 16 S. and R. 77. “I take occasion in broad terms to dissent from the doctrine broached in Mr. Phillipps' Law of Evidence (211), that a witness, actually sworn, though not examined by the party who has called him, is subject to cross-examination by the adverse party; and that the right to cross-examine is continued through all the subsequent (a) Eng Com. L. Rep. xxxiv. 397. (b) Id. xxv. 426. (c) Id. xxxiv. 432. (d) Id. xix. 410.
(e) Id. jii. 437. (f) Id. xxxii. 438. (g) Id. iii. 361.
Re-examination.) A re-examination, which is allowed only for the purpose of explaining any facts which may come out on cross-examination, must of course be confined to the subject matter of the cross-examination. 1 Stark. Ev. 179, 2d ed. The rule with regard to re-examinations is thus laid down by Abbott, C. J., in the Queen's case, 2 Br. and Bingh. 297 (a). “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 between a conversation which a witness may have had 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 [ *158 ] the entire residue of what he said on the same occasion.” In Prince v. Samo, 3 N. and P. 139, the court of Q. B. said, they could not assent to the doctrine laid down in the above case; and they held, that when a statement made by a party to a suit in giving evidence on a former trial has been got out in cross-examination, only so much of the remainder of the evidence is allowed to be given on re-examination as tends to qualify or explain the statement made on cross-examination. See also per Alderson, B., Holland v. Reeves, 7 C. and P. 36 (b).
When one of the plaintiff's witnesses stated on cross-examination facts not strictly evidence, but which 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. Tregoning, 3 A. and E. 554 (c).
Memorandum to refresh witness's memory.] It has already been stated, that a witness may refer to an informal examination taken down by himself, in order to refresh his memory. Ante, p. 58.
Ante, p. 58. So he may refer to any entry or memorandum he has made shortly after the occurrence of the fact to which it relates, although the entry or memorandum would not of itself be evidence. Kensington v. Inglis, 8 East, 289; as an unstamped paper, Maughan v. Hubbard, 8 B. and C. 14 (d). But a witness cannot refresh his memory by extracts from a book, though made by himself; Doe v. Perkins, 3 T. R. 749; nor from a copy of a book ; for the rule requiring the best evidence makes it necessary to produce the original, though used only to refresh the memory. Per cur. Burton v. Plummer, 2 A. and E. 343-4 (1) (a).
stages of the cause, so that the adverse party may call the same witness to prove his case, and for that purpose ask him leading questions. Et seq. (a) Eng. Com. L. Rep. vi. 120. (b) Id. xxxi. 426. (©) Id. xxx. 151. (d) Id. rv. 147.
Where a witness on looking at a written paper has his memory so refreshed, that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been written by him. Phill. Ev. 895, 8th ed., and the cases there cited.
Where the witness cannot speak without referring to a book, the book must be produced in court. Per Coleridge, J., Howard v. Canfield, 5 Dowl. P. C. 417. If produced, the counsel for the other party has a right to see it, and cross-examine from it, Hardy's case, 24 How. St. Tr. 824; or he may look at it and ask when it was written, without being bound to put it in evidence. Ramsden's case, 2 C. and P. 603 (6). If he crossexamines to other entries than those referred to by the witness he makes them part of his own evidence. Per Gurney B., Gregory v. Travenor, 6 C. and P. 281 (c).
Questions subjecting witness to a civil suit. Whether a witness was bound to answer questions which might subject him to a civil actions or charge him with a debt, was formerly much doubted (2); but by statute 46 Geo. 3, c. 37, it is declared and enacted, that a witness cannot by law refuse to answer any question relevant to the matter in issue, the answering of which has no tendency to expose him to a penalty or forfeiture of [ *159 ] any nature whatsoever, by reason only or on *the sole ground that the answering such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his Majesty or any other person. The Statute does not extend to compel parties, who stand in the situation of parties to the suit (as a rated inhabitant, in case of an appeal,) to give evidence. R. v. Inhabitants of Woburn, 10 East, 395, (decided before the passing of the 54 Geo. 3, c. 170.)
Questions subjecting witness to a forfeiture.] A witness is priviledged from answering any question, the answer to which might subject him to a forfeiture of his estate. The declaratory statute (46 Geo. 3, c. 37, supru) implies that a witness may legally refuse to answer any question which has a tendency to a forfeiture of any nature whatsoever. Phill. Ev. 916, 8th ed. So it is an established rule in courts of equity, that a party is not bound to answer, so as to subject himself to any forfeiture of interest. Id. Mitford on Eq. Pl. 157–163.
Questions subjecling witness to penalties or punishment, &c.] A witness cannot be compelled to answer any question, which has a tendency to expose him to a penalty, or to any kind of punishment, or to a criminal charge. Phill. Ev. 914, Sth ed. Thus in an action for a libel,
(1) Holladay o. Marsh, 2 Wend. 142. Lawrence o. Barker, 5 Pick. 301. Feetu o. Heath, 11 Wend. 477.
(2) That a mere civil liability does not render the witness incomptent, see, Gorham o. Carrol, 5 Litt. 221. Black r. Crouch, Id. 226. State o. M'Donald, 1 Coxe, 332. Stoddart's Lessee o. Manning, 2 Har. & G. 147. Bull 0. Loveland, 10 Pick. 9. Baird o. Cochran, 4 S. & R. 397. Nass o. Van Swearingen, 7 S. & R. 192. Copp o Upham, 3 N. Hamp.
(a) Eng. Com. L. Rep. xxxix. 113. (6) Id. xii. 283. (c) Id. xiv. 397.