former. And, therefore, where, in an action for a false return to a fi. fa., the plaintiff called the sheriff's officer to prove the warrant, and he upon cross-examination, proved that there were no goods upon which the sheriff could have levied : the plaintiff offered then to prove by other witnesses that there were goods sufficient within the bailiwick; but the judge held that he could not do so without repudiating the whole of the evidence of the officer, which in that case must be struck out altogether, and the plaintiff therefore submitted to be nonsuit: the court afterwards, upon application, set aside the nonsuit, holding that the plaintiff's contradicting the witness upon one point was not a repudiation of his evidence altogether, but it was for the jury to say, under the circumstances of the case, what credit should be given to the witness on the one point and on the other (d).

At the commencement of the trial, or at any time during its progress, the judge, upon application, will order the witnesses on either or both sides out of court, in order that they may not hear the address of counsel, and that none of them may be examined in the presence or hearing of others who are to be examined or cross-examined after them. The attornies of the respective parties (e), and any witnesses who are to depose to matter of opinion, and not to facts, are never included in this order. If the witness do not withdraw when ordered, or if he afterwards come into court and be present during the examination of some other witness, in the Exchequer it seems that it is a peremptory rule that he cannot be admitted to give evidence (ƒ), but in the other courts it is discretionary with the judge whether he will allow him to be examined or not (g).

Cross-examination.] A witness attending upon a summons duces tecum, and called merely for the purpose of producing a deed or other paper writing, need not be sworn if the party by whom he is called do not wish to examine him (h); and if not sworn, the other party has no right to cross-examine him. On the other hand, if a witness be called and sworn, although the party who calls him do not examine him, yet the opposite party has a right to cross-examine him if he will (i). But where the plaintiff's counsel, intending to call Captain Francis Stewart, called Captain Stewart, and a Captain Hugh Stewart appeared and was sworn, but after a few questions

(d) Bradley v. Richards, 8 Bing. 57. 1 Arch. N. P. 37.

(e) Pomeroy v. Baddeley, Ry. & M. 430.

(f) Atty. Gen. v. Bulpit, 9 Price, 4.

(g) Parker v. M' William, 6Bing.

683, 1 Moody & M. 329. 1 Arch. N. P. 38.

(h) Perry v. Gibson, 1 Ad. & E. 48. Davis v. Dale, 1 Moody & M. 514.

(i) Phillips v. sex, 1 Esp. 357. Stark, 472.

Shf. of Middle

R. v. Brooke, 2

the mistake was found out; the defendant's counsel then claimed the right to cross-examine him; but Lord Tenterden, C. J., held, that as he had been called by mistake, he could not be cross-examined (k).

Upon cross-examination, the witness may be asked leading questions. And the questions need not be confined to the subject of the examination; the party cross-examining may question the witness, not only as to all matters relevant to the issue, but as to collateral matter also, for the purpose of trying his credit. But if a question be put to him thus upon a subject which has no relevancy to the matter in issue, you must be satisfied with the witness's answer; you cannot afterwards call any witness to contradict him (1). If the question be relevant, it is otherwise (m).

The purpose of a cross-examination is either to impugn the credit of the witness, or to get him to explain or give a colour to what he has already stated in his examination in chief; so as to render it less unfavourable to the party cross-examining. You may cross-examine him, for the purpose of showing that he has no great respect for the moral obligation of the oath he has taken; or to show that, however he may design to speak the truth, his means of knowledge upon the subject of his evidence were so limited, he may possibly have been deceived in what he has asserted in his examination in chief; or to show that he is interested in the event of the cause, which although it do not affect his competency, may detract very much from his credit; or to show that he has been punished for offences, or otherwise so degraded, that no dependence can with safety be placed upon his testimony; or to impeach his veracity, by showing that he has at other times made declarations, by parol or in writing, or done acts, inconsistent with the evidence he has given upon his examination. And in this latter case you will not be allowed to impeach the testimony of the witness, by proving his former declarations or acts to the contrary, unless you first cross-examine him particularly as to his having made such declarations or done such acts (n). And this is now the general rule (0). Even if a witness, upon his examination as to the occurrence of a fact, answer that he does not remember it, the counsel on the opposite side cannot give evidence of a former declaration by the witness of the fact having occurred, unless he have in cross-examination questioned the witness as to such declaration; for the fact may have occurred, and the witness may

(k) Clifford v. Hunter, 8 Car. & P. 16.

(1) Spencely v. De Willet, 7 East, 108. Harris v. Tippett, 2 Camp. 637; and see R. v. Clarke, 2 Stark. 243, 244.

(m) 1 Arch. N. P. 38.
(n) Queen's Case, 2 Brod. & B.

311.

(a) Carpenter v. Wall, 11 Ad. & El. 803.

have formerly declared his knowledge of it, and yet he may not recollect it at the time of his examination (p). If a witness be asked whether he made a certain representation, the opposite counsel may interpose, and ask him whether the representation in question were by parol or in writing; for if the latter, the writing should be produced (q). If the declaration were by parol, it is not sufficient, in cross-examining the witness upon the subject, to ask him whether he has ever made such a statement, but you must also ask him as to time, place, and person involved in the supposed contradiction, so as to call his attention more particularly to the circumstance(r). If he admit having made the former declaration, of course no further evidence of it is necessary, nor will it be received. Even where a witness merely said that he had no recollection, one way or the other, of having made such declaration, without expressly denying it, and a witness was afterwards called, to prove that he had made it: Tindal, C. J., refused to receive the evidence, saying that he had never heard such evidence in contradiction, except where the witness had expressly denied the declaration (s). But if he expressly deny it, the opposite counsel may afterwards, as part of his evidence, call as a witness the person to whom the former witness made the declaration, may repeat the very words used by him in his question to the former witness, and ask him whether such witness did not make use of those expressions to him (t). If however the former declaration were in writing, as for instance, in a letter, you cannot state to the witness the contents of the letter, and then ask him if he ever wrote such a letter; but you should show him the letter, ask him if it be of his handwriting, and if he admit it then give the letter in evidence. Or you may show him a part of the letter, and ask him if he wrote that part; but if he do not admit that he wrote it, you cannot then proceed to cross-examine him as to the contents of the letter (u); nor, even if he admit it to be of his handwriting, can you question him whether statements, such as you suggest to him, are contained in the letter, but the entire letter must be given in evidence (w). If upon showing him the letter, he admit it to be of his handwriting, the ordinary course is to have the letter read as part of your evidence after you have opened your case. But if it become necessary to have the letter read, in order to found certain questions with relation to the contents of the letter, to be propounded to the witness, the court upon application will

allow the letter to be read at the time of the cross-examination, subject of course to the consequences of the letter being considered as a part of your evidence (x). But where a witness was asked upon the voire dire, whether he was not liable to pay the costs of the action, and he answered in the negative, Parke, B. held that the counsel, who was examining him, might put into his hands a letter which he had written, and might then again ask him whether he was not liable to the attorney, without having the letter read, or making it any part of his evidence (y).

Besides this mode of impeaching the credit of a witness, by a cross-examination of himself, or by calling witnesses to contradict him, his character may also be impugned by calling witnesses acquainted with it, who may be asked generally whether, from what they know of his character, they would believe him upon his oath (z). And in a prosecution for a highway robbery, where in opening the case it was stated that particular facts would be proved by A. and B., Parke, J., allowed the prisoner's counsel, both before and after A. and B. were examined, to ask the other witnesses for the prosecution whether A. and B. were not persons of very bad character (a).

Re-examination.] If a witness be cross-examined, the party who called him has a right to re-examine him with respect to any statements made by him in his cross-examination, in order that he may explain them where necessary and practicable. And the questions put to the witness in re-examination, must be confined strictly to his statements in cross-examination, or to matter immediately arising out of them; no question can be put to him relative to new matter, not arising out of the cross-examination, and which ought, if at all, to have been asked during his direct examination, without the leave of the judge, and without giving the opposite counsel liberty to crossexamine upon it, if he will. In The Queen's case, the judges, in answer to a question put to them, stated that if a witness, upon his cross-examination, admit to his having used certain expressions in a conversation with a person not a party to the cause, the opposite counsel in re-examining the witness is confined to such questions as may elicit the meaning of the expressions and the motives of the witness for using them; but where a witness deposes to certain expressions being used by a party to the cause, the counsel for that party is entitled to cross-examine or re-examine the witness as to the whole of the conversation in which the expressions occurred, because

(x) 2 Brod. & B. 288.

(y) Homan v. Thompson, 6 Car. & P. 717. 1 Arch. N. P. 39, 40.

(z) 4 Esp. 102.

(a) 5 Car. & P. 600. 1 Arch. N. P. 40.

in such a case the expressions are given in evidence as an admission of the party, and the whole of the admission must be taken together (b).

Witnesses in reply.] If the defendant set up any defence, and give evidence in proof of it, the plaintiff may then call witnesses in reply. Their testimony however must be confined strictly to the defence, and the witnesses called in support of it: the plaintiff will not be allowed to wander out of it, and give any evidence in further support of his original case (c).

SECTION V.

Evidence for the Plaintiff and Defendant in the different Actions.

Before we enter upon this subject, it is necessary to premise, that no evidence shall be given by the plaintiff, on the trial of the cause, of any demand or cause of action not stated in the summons (d).

Also, in actions for sums exceeding 57., the plaintiff shall not be allowed to give evidence of any matter not stated in his particulars of demand (e); nor give evidence of any matter stated in them, which is not strictly comprised within the cause of action stated in the summons (ƒ). The judge, indeed, in his discretion, and on such terms as he may think fit, may adjourn the cause at the hearing, to enable the plaintiff to deliver a statement of particulars or further particulars (g), if the plaintiff have not delivered any, or have delivered an imperfect statement: but he cannot allow of evidence being given of any matter not mentioned in the particulars delivered.

So, if the defendant give notice of set-off, and lodge with the clerk the particulars of his set-off, as directed, ante, p. 32, he shall not be allowed at the trial to give evidence of any debt or demand not stated in his particulars; nor, it should seem, of any claim stated in his particulars, which is not legally the subject of set-off in other courts of record, as the statute makes no alteration in the law in this respect, with reference to these county courts. As to the actions in which a set-off may be pleaded, in other courts of record, and the debts or demands which may legally be set-off, see 1 Arch. N. P. 194, &c.

I shall now proceed to state shortly the nature of the different personal actions, cognizable by these county courts, the

(b) 2 Brod. & B. 294. 1 Arch.

N. P. 41.

(c) 1 Arch. N. P. 41.

(d) Stat. s. 75.

(e) 1 Arch. N. P. 14.

(f) Id. 15.

(g) Rule 2.