since been extended (o) to all courts of judicature, as well criminal as all others, and to all persons having, by law or by consent of parties, authority to hear, receive, and examine evidence, and which enacts, that "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned 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." And it has been held by the Court of Common Pleas, that the term adverse" in this section must be understood in the sense of the witness exhibiting a hostile mind towards the party calling him, and not merely in the sense that his testimony turns out to be "unfavorable" to that party (p); and by the Court of Queen's Bench, that a statement contradicting the evidence of a witness under it may be contained in a series of documents, not one of which, taken by itself, would amount to a contradiction of the witness (g).

§ 646. 7. While the indefinite, or even frequent, adjournment of its proceedings is at variance with the very nature of a judicial tribunal (r), still a power of adjournment in certain cases, exercised with due caution and discretion, is indispensable to the sound and complete administration of justice. As regards criminal cases, it is said that it is incident to a criminal trial that the court may, for sufficient reason, adjourn it (s). But this rule seems not to have been recognized in civil cases, a point as to which the commissioners for inquiring into the process, practice, and system of pleading in the Superior Courts of Common Law, express themselves as follows (t): "It occasionally happens that a party is taken by surprise by his adversary's case; that a witness or a document becomes unexpectedly necessary, and is not forthcoming; that a document turns out to be attested, and the attesting witness is not present; or requires a stamp, but no stamp, or an insufficient one, has been affixed. In these and the like cases, miscarriage of justice must

786.

(0) 28 & 29 Vict. c. 18, ss. 1, 3.
(p) Greenough v. Eccles, 5 C. B., N. S.

(q) Jackson v. Thomason, 1 B. & S. 745.

(r) Introd. pt. 2, §§ 41 et seq. (s) Per Blackburn, J., R. v. Castro, L Rep., 9 Q. B. 350, 356.

(t) Second Report, p. 10.

occur unless time is afforded to enable the deficient matter to be supplied. We think the rigorous inflexibility with which a cause once commenced is now carried on to its close, might be modified with advantage. No doubt, encouragement should not be held out to parties to be negligent in getting up their proofs or coming unprepared to trial; but, on the other hand, it is important not to allow justice to miscarry, or parties to be put to the expense of another trial, when, by a temporary adjournment, a deficiency in proof may be supplied." These views were carried into effect by 17 & 18 Vict. c. 125, s. 19, which enacts, that "It shall be lawful for the court or judge, at the trial of any cause, where they or he may deem it right for the purposes of justice to order an adjournment for such time, and subject to such terms and conditions as to costs, and otherwise, as they or he may think fit," an enactment substantially reproduced by the "Rules of the Supreme Court” (u).

§ 647. 8. 1. There were formerly two ways of questioning the ruling of a court or judge, on matters of evidence in civil cases. 1. By bill of exceptions founded on the statute West. 2 (13 Edw. I.), c. 31, stat. 1: "Cum aliquis implacitatus coram aliquibus justiciariis, proponat exceptionem, et petat quod justiciarii eam allocent, quam si allocare noluerint, si ille, qui exceptionem proponet, scribat illam exceptionem et petat quod justiciarii apponant sigilla in testimonium, justiciarii sigilla sua apponant; et si unus apponere noluerit, apponat alius de societate." And if a judge refused to seal a bill of exceptions, the party might have a compulsory writ against him, commanding him to seal it if the fact alleged were truly stated ; and if he returned that the fact was untruly stated, when the case was otherwise, an action would lie against him for making a false return (x).

But, by the "Rules of the Supreme Court" (y), bills of exceptions and proceedings in error are now abolished.

2. The improper admission or rejection of evidence was also a ground for an application to the court in banc for a new trial. And this mode of proceeding was generally adopted in preference to that by bill of exceptions, partly through an absurd notion, that the tendering a bill of exceptions was disrespectful to the judge; but principally to avoid expense and delay. But the court would often refuse a new trial, even where an undoubted error had been commit

(u) Order XXXVI. r. 21. (x) 3 Blackst. Comm. 372.

(y) Order LVIII. r. 1.

ted by the judge, if they thought that under all the circumstances justice had been done (2); and now, by the "Rules of the Supreme Court" (a), a new trial shall not be granted on the ground of inisdirection, or of the improper admission or rejection of evidence, unless, in the opinion of the court to which the application is made, some substantial wrong or miscarriage has been thereby occasioned in the trial of the action; and if it appear to such court that such wrong or miscarriage affects part only of the matter in controversy, the court may give final judgment as to part thereof, and direct a new trial as to the other part only.

§ 648. 2. As to criminal cases. It is said that bills of exceptions do not lie in such cases (b), — and they are certainly never seen in practice. But the Court of Queen's Bench will grant a new trial in certain cases of misdemeanor (c); though not in a case of felony (d). Formerly, when the judge before whom a criminal cause was tried in the Central Criminal Court, or on circuit, entertained a doubt on any point of law or evidence, he reserved the question for the consideration of the judges of the superior courts, who heard it argued, and, if they thought the accused improperly convicted, recommended a pardon. But the judges sitting in this way had no jurisdiction as a court, and were only assessors to advise the judge by whom the matter was brought before them. By 11 & 12 Vict. c. 78, however, this was altered; and a regular tribunal, consisting of at least five judges, was constituted, for the decision of all points reserved on criminal trials by any court of oyer and terminer, or jail delivery, or court of quarter sessions. But neither under the old practice nor under this statute have the parties to a criminal proceeding any compulsory means of reviewing the decision of the judge.

(z) Atkinson v. Pocock, 12 Jurist. 60, and the cases there cited; Cox v. Kitchin, 1 Bos. & P. 338; Wickes v. Clutterbuck, 2 Bingh. 483; Doe d. Welsh v. Langfield, 16 M. & W. 497; Mortimer v. M'Callan, 6 id. 58; Bessey v. Wyndham, 6 Q. B. 166; Stindt v. Roberts, 5 D. & L. 460. (a) Order XXXIX. r. 3.

(b) Ph. & Am. Ev. 947; 2 Phill. Evid. 541, 542, 10th ed.

(c) Archb. Cr. Off. Pract. 96, 97; R. v. Whitehouse, 1 Dearsl. C. C. 1; R. v. Russell, 3 E. & B. 942.

(d) R. v. Bertrand, L. Rep., 1 P. C. 520; R. v. Scaife, 2 Den. C. C. 281, in which a new trial (the question of jurisdiction not being raised) was granted, is clearly not law.

PART II.

ELEMENTARY RULES FOR CONDUCTING THE EXAMINATION AND CROSS-EXAMINATION OF WITNESSES.

§ 649. IN the preceding Part, the main object of this work was brought to a close. The final one, at which we have now arrived, will be devoted, not to law or practice, but to elementary rules for the guidance of advocates in dealing with witnesses. Much of what follows will doubtless appear very obvious to readers experienced in such affairs, but it is not for them that this Part is intended (a).

§ 650. There is a very prevalent notion, that all discussion or comment on this subject is necessarily useless, if not worse. This seems to have arisen partly from a superficial view of the matter, and partly from misapprehension of a passage in Quintilian, in which he is supposed to intimate his opinion, that the faculty of interrogating witnesses with effect must be the result either of natural acuteness or of practice. If the Roman critic meant, what he certainly does not express, his language being, "Naturali magis acumine, aut usu contingit hæc virtus," - that no rules can be laid down for the guidance of advocates in this respect, he was most inconsistent with himself; for in the very chapter from which the above passage is taken (b), he gives a series of rules for that purpose, which have been admired in every age, and are recommended by high authorities in our own law (c). The present chapter is in truth chiefly founded on them, as the constant references will show. It would indeed be strange if, while perfection in all other arts and sciences is attained by the combination of study and experience, the faculty of examining witnesses with effect—which depends so much on knowledge of human nature, and acquaintance with the resources of falsehood and evasion, and is coeval with judicature itself should be destitute of all fixed principles.

§ 651. The terms "examination in chief" and "cross-examination" are commonly applied, respectively, to the interrogation of witnesses by the party who presents them to the tribunal, and by his adversary; the legal rules of practice governing both being, as has been shown in the preceding Part (d), mainly based on the principle that every witness produced ought, in the first instance at least, to be presumed favorably disposed towards the party by whom he is called. The very opposite is, however, often the fact; and accordingly, in what follows, the term "cross-examination" will be used

modo se præclare suo functos officio existimabant, si ad singulos titulos aliquot casuum leviter enucleatorum centurias proponerent. . . . . Illi ad memoriam omnia referebant, et si qui jejuna ista præcepta edidicerant, et ad singulas quæstiones ipsa compendii verba poterant reddere, eos aliquot casuum et quæstiuncularum myriadibus suffarcinatos, et phaleris ornatos doctoralibus, ablegabant in forum, stre. pitum his armis non sine horrore judicis daturos." Heineccius, ad Inst. Præf.

(b) Quintil. Inst. Orat. lib. 5, cap. 7, De Testibus. Quintilian refers to the dialogues of the Socratic philosophers, and especially those of Plato, as affording good studies in the art of cross-examination. Among Plato's divine Dialogues, see in particular the Protagoras, Second Alcibiades, Theages, and Eutyphron.

(c) 3 Blackst. Comm. 374; Ph. & Am. Ev. 908; 1 Greenl. Evid. § 446, note (1), 7th ed.

(d) Supra, pt. 1, ch. 2, §§ 641, 642.