transaction was, as far as he knew honest and correct. On re-examination he denied having told the defendant's attorney that it was a shameful transaction, whereupon the defendant's counsel proposed to call the attorney to prove that he had said so, but this being objected to, Parke, B. rejected the evidence, observing, that he never had any doubt that Bolland, B. was right in the case above cited, and added, that a party has no right to put a witness into the box as a witness of credit, and when he gives unfavorable evidence to call evidence to contradict him, and that it made no difference whether the fact was elicited on the examination in chief or on cross-examination. In Allay v. Hutchings, also, Wightman, J., rejected similar evidence; and in Winter v. Butt, Erskine, J., ruled in the same way, observing that he had previously done so on one occasion with the approbation of Patteson, J., and that he had since talked with several of the other Judges, and found that in their opinion the above-mentioned decision of Parke, B. was right.

"It is observable, that the case of a witness thus giving evidence of a fact tending to negative the claim made by his party is distinguishable from that of a witness who denies all knowledge of the fact, or simply fails in proving the fact which he is called to prove. In the former, it may be essential to justice that the jury, who might otherwise attribute too much credit to the testimony of the witness, should be supplied with the means to enable them to judge of the degree of credit which they ought to give ; but in the latter, the witness proving nothing, his credit is immaterial, and what he stated upon any former occasion cannot be received as substantive evidence. Upon the trial of Warren Hastings, the Judges delivered the following answer, by the Lord Chief Baron, to a question proposed by the House of Lords.—“That where a witness, produced and examined in a criminal proceeding by the prosecutor, disclaimed all knowledge of any matter so interrogated, it is not competent for such prosecutor to pursue such examination by proposing a question containing the particulars of an answer supposed to have been made by such witness before a Committee of the House of Commons, or in any other place, and by demanding of him whether the particulars so suggested were not the answers he had so made.' In the case of Ewer v. Ambrose, a witness, called by the defendant to prove a partnership between himself and the defendant having denied the fact, an answer of the witness in Chancery was offered in evidence by the defendant's counsel, and admitted. It was left to the jury to find for the plaintiff or defendant, according to the credit given to the witness' answer in Chancery or in Court. After a verdict for the defendant, the Court granted a new trial, on the ground that the answer was not substantive evidence of the fact."

FOUNDATION FOR CONTRADICTION.

In Ewer v. Ambrose,(y) it was said as follows:

213

"In Bull. N. P. 297, the rule as to the right of a party to contradict his own witness is thus laid down. A party never shall be permitted to produce general evidence to discredit his own witness;' and the reason of the rule follows, for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him.' The expression general evidence' in the rule itself, seems to imply that a party may discredit his own witness by evidence of particular facts, ex. gr. as in the present case, by showing that he has on a former occasion given on oath a different account of the transaction. But the reason of the rule extends to the exclusion of all evidence which is offered, merely for the purpose of discrediting the witness, and which would not have been other wise admissible, because not tending to prove or disprove the issue joined. And this construction is fortified by the passage in Bull. N. P. which next. follows, and explains the rule above cited. But if a witness prove facts in a cause which make against the party who called him, yet the party may call other witnesses to prove that those facts were otherwise; for such facts are evidence in the cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental and consequential only."

§ 435. Now, however, by Act II. of 1855, Section XXX. a party may always discredit his own witness by other evidence of the parti

cular facts.

"The party at whose instance a witness is examined may, with the permission of such Court or person, cross-examine such witness, to test his veracity, in the same manner as if he had not been called at his instance, and may be allowed to show that the witness has varied from a previous statement made by him."

§ 436. Where it is intended to rebut the testimony of a witness, by contradicting anything that he has said or done in relation to the cause, it is necessary to put the very words, &c. into his mouth, and ask him, did you ever say so and so. Time and place must also be specified; or otherwise the contradiction established by the witness subsequently to be called will not be complete. On this topic Starkie writes as follows :—(2)

"It is a general rule, that whenever the credit of a witness is to be im

(y) B. and Cr. p. 751.

(x) Page 238.

peached by proof of any thing that he has said, or declared, or done in relation to the cause, he is first to be asked, upon cross-examination, whether he has said or declared, or done that which is intended to be proved. For in every such case there are two questions: first, whether the witness ever did the act or used the expressions alleged; secondly, whether his having done so impeaches his credit, or is capable of explanation. It would be manifestly unjust to receive the testimony of the adversary's witness to prove the fact, without also admitting the party's witness to deny it; and assuming the act to have been done, or expression used, it would be also unjust to deny to the party, or the witness who admits the act or expression, the best, or it may be, the only means of explanation.

"If the witness admit the words, declaration, or act, proof on the other side becomes unnecessary, and an opportunity is afforded to the witness of giving such reasons, explanations, or exculpations of his conduct, if any there be, as the circumstances may furnish; and thus the whole matter is brought before the Court at once, which is the most convenient course.

"If the witness deny the words, declaration, or act imputed to him, then if it be not a matter collateral to the cause, witnesses may be called to contradict him. But it is not enough to ask a witness (in order to found a contradiction) the general question whether he has ever said so and so; he must be asked as to the time, place, and person involved in the supposed contradiction, or some other circumstance sufficient to point out the particular occasion."

§ 437. The testimony of a witness whose character has been impeached on cross-examination, may be confirmed by general evidence of good character.

§ 438. By Act II. of 1855, Section XXXI. a witness may be confirmed by his own former statement, &c.

§ 439. A witness may be examined for both parties in chief: that is to say, after he has been examined on behalf of the plaintiff, crossexamined, &c. he may be called by the defendant as an independent witness but it stands to reason that the defendant's pleader should avoid this necessity, as he will have to treat his witness as a witness in chief, if he has missed the opportunity afforded of eliciting all he wished to know from his adversary's witness on cross-examination. Sometimes such a course may be unavoidable, for instance where it comes to the knowledge of the defendant's pleader after the plaintiff's witness has left the box, that he is acquainted with a fact important or necessary to the defence.

WRITTEN INSTRUMENTS-NOT JUDICIAL.

215

CHAPTER XXV.

II. WRITTEN INSTRUMENTS.

§ 440. These we may divide into three classes.

I. Public.

II. Quasi public.

III. Private.

§ 441. Public Instruments again are divided into

1st. Not judicial.

2nd. Judicial.

Of Public Instruments: 1st. Not Judicial.

§ 442. This class consists of Acts of Parliament, Acts of the Legislature, Regulations, Proclamations, &c.

§ 443. We must now consider how these documents are proved. § 444. Under Act II. of 1855, Section II. to VI. inclusive, provision is made for Courts taking judicial notice of certain documents and facts. The Act itself must be referred to for particulars. By judicial notice is understood the legal necessity which a Court lies under of acknowledging as true, a fact or document referred to, without requiring any formal proof of it. Section II. of the Act refers to Acts and Regulations. Section III. to public and private Acts of Parliament. Section IV. to the officers of the Court. Section V. to the names, titles, &c. of particular specified persons. Section VI. to the divisions of time, place, &c.

§ 445. By Section VII. Government Gazettes are proved by their production. Section VIII. provides that Proclamatians, &c. may be proved by production of a Gazette.

§ 446. The effect of any recital in an Act in a matter of a public nature is (by Section IX.) that the truth of the fact recited is thereby prima facie established. Of course its truth may be rebutted by evidence.

§ 447. Section X. provides that proof of the authority by which certain advertisements are published in a Gazette or Newspaper, shall primâ facie be established by the production of the Gazette or Newspaper.

§ 448. Section XI. confers on Courts a power of referring to public books, maps, &c., on subjects of public history, &c.

§ 449. Section XII. provides for the proof of foreign laws, &c. § 450. By Section XIII. maps made by authority of Government, or a municipal body, and not made for any purpose of any litigated question, require no further proof than their production. Under this Section the necessity of sworn testimony as to the accuracy of cantonment maps, Police maps, and the like, is obviated.

§ 451. We may usefully conclude this list by a reference to Starkie(a) where will be found stated the matters which Courts are bound to notice judicially, and what they are not.

"No evidence is requisite to prove the existence of a fact which must have happened according to the constant and invariable course of nature or to prove any general law: nor is it necessary to prove any general customs of the realm, or any artificial regulation prescribed by public and competent authority; such as the ordinary computation of time by the calendar; or the known divisions of the kingdom; or any public matters recited in Acts of Parliament, royal proclamations, or other public documents, published by competent authority: nor is evidence necessary to prove the time of the accession of the sovereign; or his death; the privileges of the royal palaces; or the great and privy seals. So, the Courts will take judicial notice of the seals of the superior Courts, including the Courts of the counties palatine; of the Ecclesiastical Courts; of the High Court of Admiralty; of the Court of Bankruptcy; of the Insolvent Court; of the new County Courts; of the Court of the Vice-Warden of the Stannaries; of the Board of Poor Law Commissioners; of the Record Office; of the General Register Office; of the Registrar of Designs' Office; of the seal of the Apothecaries' Company to a certificate of the qualification of an apothecary; and of the corporate seal of the City of London. And it seems that where particular seals are given by Act of Parliament, the Courts must take judicial notice of them.

"But the Courts will not take notice without proof of the seals of infe_ rior courts, unless made cognizable by particular statutes; nor of the Irish, colonial, or foreign courts. But now documents which in Ireland are admissible in evidence without proof of seal or signature, shall be received in the Courts of England without such proof; and so likewise, documents which are admissible in England without proof of the seal shall be received in Ireland without such proof, and both of these classes are also to be admitted in like manner in the colonies. And by the same statute all judicial proceedings of any foreign or colonial court, and all legal documents filed or deposited therein, may be proved by a copy purporting to be seal

(a) Page 735.