Judges, Jurors, &c.—Examination in Chief.

155 witness unless the competency were restored by a pardon, or by having undergone the punishment assigned to the offence. Whether the act extends to the case of outlawry for felony is, perhaps, open to question. See 3 Inst.

212.

The offence and conviction may still be proved by the admission of the witness or otherwise, as before, for the purpose of impugning his credit. R. v. Castell Careinion, 8 East, 78. Vide post, p. 173.

Judges, jurors, arbitrators, counsel, &c.] A person, whose name is in the commission of assize, may be examined as a witness; so may a juror. Bac. Abr. Evid. A. 2.

In an action to enforce his award, the arbitrator may be called as a witness to prove what passed before him, what matters were presented for his consideration, and what claims admitted; but he cannot be asked as to what passed in his own mind when exercising his discretionary power on the matters submitted to him, nor can he be asked questions to explain, aid, or contradict his award. Buccleugh, Dk. of, v. Metropolitan Board of Works, L. R., 5 H. L. 418.

Counsel and solicitors in the cause may also be witnesses in it (subject to the rule respecting privileged communications, mentioned post, p. 159, et seq.); but the practice is open to objection, and such evidence should, if possible, be dispensed with. Bac. Abr. Evid. (A. 3). See also Best on Evid., $ 184.

Inference from not calling the party.] Since parties have been made competent witnesses, it has been a common practice to comment on their absence as witnesses, and to make observations on it as a suspicious suppression of unfavourable testimony. There seems to be no legitimate objection to such comments; and where a party is present in court, and testimony has been given which he must be able, if untrue, to contradict, and is interested in doing so, great weight will naturally be given to such comments. But the mere fact of his not being offered as a witness is not, per se, evidence against him, though it may turn the scale if his absence is unexplained and there is other slight evidence or some ambiguous admission by him out of court. See M'Kewen v. Cotching, 27 L. J., Ex. 41. The case bears some resemblance to that of admissions implied from a tacit acquiescence in statements made in the party's presence. See ante, p. 62.

Examination in chief] On almost every trial a great deal of discussion arises as to putting leading questions. Leading questions are those which, from the form in which they are put, are likely to communicate to the witness a knowledge of what answer would be favourable to the person putting it; which would of course be dangerous with a dishonest witness. In some cases of critical inquiries also, it is very desirable to get the witness's own impression, which the most veracious witness might not, after another view had been once suggested to him, be able to recall.

The objections, therefore, to leading questions apply by no means with equal force to all witnesses and to all parts of an inquiry. Some witnesses will adopt anything that is put to them, whilst others scrupulously weigh every answer. Moreover, innumerable questions are put for a mere formal purpose, the facts not really being in dispute, or simply in order to lead the mind of the witness to the real point of inquiry.

As a great saving of time is effected by leading a witness, it would be extremely undesirable to stop it, where it is otherwise unobjectionable.

There is no distinction recognised by the law between questions which are and questions which are not leading. To object to a question as leading is only a mode of saying that the examination is being conducted unfairly. It is entirely a question for the presiding judge to say, in his discretion, whether or not the examination is being conducted fairly.

It is sometimes said that all questions capable of being answered by merely yes or no, are objectionable as leading. But this is a very fallacious test, even in the most critical parts of an inquiry. On the other hand, it is sometimes said that the objection that the question is leading may be got over by putting it in the alternative; but it is obvious that nothing would be easier than to suggest in this way a whole conversation to a dishonest witness.

A witness, produced to read or explain a series of ancient records brought into court, may be asked to state the result of them; and this is permitted for saving of time, and because the witness can be interrogated as to the particular entries on which he founds his general statement of their purport and effect, and may be called upon to point them out to the court. Rowe v. Brenton, 3 M. & Ry. 212.

It has been already shown (ante, pp. 1, 4, et seq.) that oral proof of a written document cannot be admitted on examination in chief, unless a proper foundation for it be laid by accounting for the non-production of the writing itself; and that where any agreement, communication or statement is the subject of inquiry, the opposite party may interpose the questionwhether it was in writing? The circumstances and conditions under which oral evidence of written documents may be admitted are also explained, p. 4, et seq., Secondary Evidence.

Where a witness for the plaintiff, cross-examined as to the contents 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, Ld. Ellenborough ruled that he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side; for 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; and this is now the common practice. But where a witness denied, on crossexamination, 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; the conversation being evidence in itself, and not proved for the mere purpose of discrediting the witness. Hallett v. Cousens, 2 M. & Rob. 238.

If a witness when called displays a determination to speak as unfavourably as possible to the party calling him, or as it is sometimes called, proves hostile, then the party calling him may conduct the examination with the same latitude as we shall hereafter see a cross-examination may be conducted (post, pp. 167, 168); see Coles v. Coles, L. R., 1 P. & M. 70; but he must confine himself to matters material to the issue. The party calling a witness cannot cross-examine him merely to test his credit, as his opponent may; vide post, p. 171. It has been ruled that if a witness stands in a situation which of necessity makes him adverse to the party calling him, the counsel may as matter of right cross-examine him. Clarke v. Saffery, Ry. & M. 126. The presiding judge has a discretion as to the

Examination in Chief-Privilege of Witnesses.

157

mode of examination in order best to answer the purposes of justice. Per Abbott, C. J., Bastin v. Carew, Id. 127.

When a question is propounded, the opposite party may object that it is one which transgresses the rules of evidence. If not objected to, or if the objection be overruled, the witness must answer it, unless he can show that he has some privilege which enables him to refuse to do so. If he refuse to answer the question, and can show no privilege, he will be liable to be fined and imprisoned by the court. Ex pte. Fernandez, 10 C. B., N. S. 11; 30 L. J., C. P. 321.

Privilege.] There are some questions which a witness is not compellable to answer, though, if he choose to answer them, his evidence is to be received. The following are such cases :

When a witness is privileged on the ground of injurious consequences of a civil kind.] A witness is privileged from answering any question, the answer to which might directly subject him to forfeiture of estate. See Pye v. Butterfield, 5 B. & S. 829; 34 L. J., Q. B. 17. But it seems that where property is granted to a person subject to a conditional limitation over, that person may be compelled to state whether the condition on which the estate goes over has not been fulfilled. Per Cur. Id. And by stat. 46 Geo. 3, c. 37, "a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature whatsoever, by reason only, or on the sole ground that the answering of 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 of any other person or persons."

It will be seen that this statute recognises the privilege, when the witness is exposed to a penalty or forfeiture. Forfeiture" in this statute does not apply to a person in possession of property and become liable to forfeit it by reason of a breach of covenant. Per Cockburn, C. J., in Pye v. Butterfield, supra. A doubt might arise whether this exception extends to penalties to be recovered by a common informer or otherwise in a civil

manner.

When a witness is privileged on the ground of injurious consequences of an ecclesiastical kind.] It has generally been considered that a witness may decline answering questions, the answering of which would expose him to ecclesiastical penalties]; as on a proceeding under the 2 & 3 Edw. 6, c. 13, s. 2, for not setting out tithes ; Jackson v. Benson, 1 Y. & J. 32; or for simony, Brownswood v. Edwards, 2 Ves. Sen. 245; or incest, Chetwynd v. Lindon, Id. 450. But a judge, in deciding whether or no the witness is entitled to the privilege, would no doubt consider how far the danger suggested by the witness was real; R. v. Boyes, post, p. 158; and the mere chance of an obsolete jurisdiction being set in motion would probably not be considered a sufficient ground for refusing to answer.

With regard to questions tending to show that a witness called in proceedings instituted in consequence of adultery has been guilty of adultery, see 32 & 33 Vict. c. 68, s. 3, ante, p. 154.

When a witness is privileged on the ground of injurious consequences of a criminal kind.] That the witness may by answering be subjected to a criminal charge, however that charge may be capable of being prosecuted, is clearly a sufficient ground for refusing to answer. Thus a person could

not be compelled to confess himself the father of a bastard child, so long as he was thereby subjected to the punishment inflicted by the 18 Eliz. c. 3, s. 2. R. v. S. Mary, Nottingham, 13 East, 57, n. So a witness could not be compelled to answer a question which subjected him to the criminal charge of usury. Cates v. Hardacre, 3 Taunt. 424. But if the time for the recovery of the penalty had expired, the witness might be compelled to answer. Roberts v. Allatt. M. & M. 192.

The witness is compellable to answer when he has received, before or at the trial, a pardon under the great seal for the offence of which he fears to criminate himself. R. v. Boyes, 1 B. & S. 311; 30 L. J., Q. B. 301. In this case the court overruled the objection that the pardon was not, by reason of stat. 12 & 13 Will. 3, c. 2. s. 3, pleadable to an impeachment by the House of Commons, because the danger to be apprehended must be real and appreciable, and an impeachment was, under the circumstances, too improbable a contingency to justify the witness in still refusing to answer on that ground.

Although the witness is not bound to answer questions of this nature, yet the question may be put, at least such appears on the whole to be the weight of authority. The Queen's case, 2 B. & B. 311; R. v. Watson, 2 Stark. 153. See contra, Cundell v. Pratt, M. & M. 108. With regard to questions tending only to criminate, it was said by Ld. Eldon, that it was the strong inclination of his mind to protect the party, not only against any question that has a direct tendency to criminate him, but against one that forms a step towards it. Paxton v. Douglas, 19 Ves. 227; Claridge v. Hore 14 Ves. 59; Swift v. Swift, 4 Hagg. Ecc. 154.

The objection is sometimes obviated by the express provision of the statute creating the offence, e.g. 24 & 25 Vict. c. 96, s. 85, as to fraudulent bailees, &c.; 38 & 39 Vict. c. 87, s. 103, as to fraudulent statements, &c., to obtain entry of land on register.

Right to decline answering-how decided.] It is now settled, after somewhat conflicting expressions of opinion, "that to entitle a party called as a witness to the privilege of silence, the court must see from the circumstances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. If the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself the effect of any particular question." R. v. Boyes, 1 B. & S. 311; 30 L. J., Q. B. 301. Accord., Ex pte. Reynolds, 20 Ch. D. 294, C. A., where the earlier cases are collected and considered.

Thus the judge is to use his discretion, whether he will grant the privilege upon the bare claim of the witness, or whether he will investigate the claim by further inquiry. Of course, the witness must always pledge his oath that he believes the answer to the question will tend to criminate him, and if he assigns a reason which in the opinion of the court will not criminate him, he is not privileged. See Scott v. Miller, John. 220; 28 L. J. Ch. 584; Ex pte. Aston, 4 De G. & J. 320; 28 L. J., Ch. 631.

Counsel interested in excluding the evidence will not be allowed to argue in support of the objection. R. v. Adey, 1 M. & Rob. 94. A witness is not compellable to answer questions put for the mere purpose of degrading his character; Cook's case, 13 How. St. Tr. 334; Freind's case, Id. 17; Layer's case, 16 How. St. Tr. 161; though such questions may legally be asked. R. v. Edwards, 4 T. R. 440; R. v. Holding, Arch. Cr. Law, 102; Cundell v. Pratt, M. & M. 108. See the cases collected, 1 Phill. Ev. 269. If the witness choose to answer, his answer is generally conclusive. R. v.

Watson, 2 Stark. 149.

Vide Evidence of character, post, pp. 172, 173, for those cases in which it is not conclusive.

Privilege of husband and wife.] In civil proceedings a question is sometimes put to a husband the answering of which would tend to criminate his wife, or to a wife the answering of which would tend to criminate her husband. There has been some confusion here between incompetency and privilege, and it was at one time thought that a husband or wife was in every case an incompetent witness with respect to any fact which might have a tendency to criminate the other; R. v. Cliviger, 2 T. R. 268; but that decision is no longer law; all the subsequent cases, with one exception, treating the husband and wife, except on an indictment against either, as competent witnesses. R. v. All Saints, Worcester, 6 M. & S. 194; R. v. Bathwick, 2 B. & Ad. 647; R. v. Williams, 8 C. & P. 284. The case the other way is that of R. v. Gleed, 3 Russ. on Crimes, 4th ed. 631, in which, on a charge of stealing wheat, Taunton, J., after consulting Littledale, J., refused to allow a wife to be asked whether her husband was not present when the wheat was stolen by the prisoner, although it does not appear that she claimed any privilege. That opinion would, however, hardly prevail against the decisions above referred to.

But though the husband and wife are, in such a case, competent, it seems to accord with principles of law and of humanity, that they should not be compelled to give evidence which tends to criminate each other; and in R. v. All Saints, Worcester, supra, Bayley, J., said that, if in that case the witness had thrown herself upon the protection of the court, on the ground that her answer might tend to criminate her husband, he thought she would have been entitled to it. See 1 Phill. & Arn. Ev., 10th ed. 73; accord.

Communications made by the husband to the wife, or by the wife to the husband during marriage, are expressly privileged by the 16 & 17 Vict. c. 83, s. 3, ante, p. 153. The communication must have been made durante matrimonio; O'Connor v. Majoribanks, 4 M. & Gr. 435, overruling Beveridge v. Minter, 1 C. & P. 364; the privilege lasts after dissolution of the marriage, or the death of one of the parties. Monroe v. Twistelton, Peake, Add. Ca. 221; Aveson v. Kinnaird, Ld., 6 East, 192; Doker v. Hasler, Ry. & M. 198. See, however, the remarks in 1 Taylor, Evid. § 831.

When a witness is privileged on the ground of confidence.] Counsel, Curry v. Walter, 1 Esp. 456; and solicitors, R. v. Kingston, Ds. of, 20 How. St. Tr. 613; cannot be compelled to reveal communications made to them in confidence, as such. A person who acts as interpreter, Du Barré v. Livette, Peake, 78; S. C. 4 T. R. 756; or as agent, Parkins v. Hawkshaw, 2 Stark. 239; see also Goodall v. Little, 20 L. J., Ch. 132; between the solicitor and his client; or the solicitor's clerk, Taylor v. Forster, 2 C. & P. 195; R. v. Upper Boddington, 8 D. & Ry. 732; cannot be called upon to reveal such communications. So, a barrister's clerk cannot be called to prove his retainer. Foote v. Hayne, Ry. & M. 165. But Parke, B., is said to have held in Forshaw v. Lewis, 1 Jurist, N. S. 263, H. T. 1855, Ex., that the mere fact of retainer is not privileged from disclosure. See also Levy v. Pope, M. & M. 410, cited post, p. 161. Cases and the opinions of counsel thereon are privileged. Reece v. Trye, 9 Beav. 316; Penruddock v. Hammond, 11 Beav. 59; and see R. v. Woodley, 1 M. & Rob. 390.

A solicitor professionally employed to prepare an assignment of goods, which he declines to draw, will not be allowed to disclose the instructions given him; Cromack v. Heathcote, 2 B. & B. 4; nor to prove the contents of deeds or abstracts deposited with him as solicitor; R. v. Upper Boddington,