my purpose to take up the different questions which have arisen in the application of this important principle of evidence, and state what I consider to be by the weight of authority the proper rule. In the first place, it is a well settled principle, notwithstanding the general rule, that a party is not bound by the testimony of his own witness, and is not precluded from proving any fact, relevant to the question at issue, by any other competent testimony, even though that testimony is directly contradictory to the testimony of a former witness of the same party; and this is true, not only where the witness is innocently mistaken, but even where it may have the effect collaterally of impeaching his credibility. In a Georgia case, Lumpkin, J., said: "A party is not to be sacrificed and he ought not to be entrapped by the arts of a designing man, perhaps in the interest of his adversary. He ought, therefore, be permitted to relieve himself from the effect of testimony which has taken him by surprise, not by showing that a witness from his general character is not entitled to credit, but by showing that the facts are different." The authorities go further and hold that where a witness is hostile, unwilling to give testimony, or is apparently in the interest of the party adverse to the party calling him, the court may allow the direct examination to assume the form and character of a crossexamination, and leading questions may be put to him, and he may even be asked whether he has not at a former time made statements inconsistent with his testimony on the trial. 10 Cassoday, J., said in this connection in a Wisconsin case: "The time and circumstances under which leading questions may be put to a witness (meaning an unwilling witness) is a matter necessarily resting in the discretion of the trial court, and judgment will not be reversed on that ground." Elliott, J., who, according to

Lawrence v. Barker, 5 Wendall, 301; Winslow v. Mosely, 2 Stewart, 137; Spencer v. White, I Iredell, 236; Brown v. Osgood, 25 Me. 505; 1 Greenleaf on Ev. Sec. 443; Hunter v. Wetsell, 46 N. Y. 481: Chester y.

Rice, has best stated the American rule on the subject, says, in a leading case:12 "Where a party is really taken by surprise, it is in the discretion and even the duty of the court to allow him to put leading questions to his own witness, and in extreme cases, where it is apparent that a witness is giving testimony contrary to the reasonable expectations of the party calling him, such party should be allowed to cross-examine such witness, for the purpose of refreshing his recollection with a view of modifying his testimony and of revealing his real animus in the case. But in the exercise of this, sound discretion should be used, lest the privilege be abused."

A more difficult question arises when we consider whether or not it is competent for a party producing a witness whose testimony is unfavorable to show by other proof that he testified differently on a former occasion. I apprehend that it is upon this point that most of the confusion of text-writers in regard to this rule of evidence arises, and this for two reasons,-first, because they fail to recognize the fact that several States, as I have before mentioned, have special statutes on the subject, and second, because they do not always distinguish an ordinary witness from one whom the party is in reality bound to call, such as subscribing witnesses to wills, deeds, and other instruments. In the last edition of Greenleaf13 the following statement is made: "But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial or to what the party had reason to believe he would testify." It may be well to say that this statement is criticised by Mr. Redfield in his edition of Greenleaf, but is left unquestioned in the last edition of that work. Bradner, in his work on Evidence, published in 1895, and which is the latest work on the subject which I have been able to procure, says: "Although a party calling a witness should not be allowed to impeach his general character,

14

15

very few courts in either the United States or England, and are certainly not in accordance with the weight of authority. I have in the course of my research found two cases which appear to support these writers in their statements. One is a North Carolina case,16 which holds that the State may discredit its own witness by proving that the witness on a former occasion had given a different account of the transaction. The report in that case cites the court as saying: "The rule is so in civil cases. Let authorities be produced to show how it is in criminal ones." (The gentlemen on both

With

sides searched for authorities but could find none). "I think the solicitor should be allowed to discredit the witness if she has varied from the relation she now gives." Witnesses were allowed. The other case I referred to is a late Kansas case,17 and holds that a hostile witness may be examined as to whether he had not previously made contradictory statements; and they may in the discretion of the court be permitted to show what such contrary statements were. these notable exceptions, the courts of the United States appear to be unanimous in holding, in the absence of statute, that a party calling a witness of his own accord cannot impeach his testimony by proving that he made prior contradictory statements.18 The question in England is now settled by statute, but undoubtedly the weight of authority in that country prior to the statute of 1853 was that a party could not prove prior contradictory statements of his own witness.19 Many cases are given in the books as upholding the doctrine as laid down by Greenleaf and Bradner, but the cases are either not in point at all or are the reports of the decisions of courts which are governed by statute. The rule as to the right of a party to prove prior contradictory statements of his witness is, however, modified, in the case of subscribing witnesses to wills and other instruments. The relation of the witness to the party call

party from impeaching his own witness, viz: because he vouches for his credibility, fails in the case of a subscribing witness, for no matter how much one may doubt the credibility of such a witness, it is always very convenient, and in most cases absolutely necessary, that such witness be produced. So in the case of subscribing witnesses, or those whom the law compels a party to call, it is laid down and sanctioned by the best of authorities, that statements of such witnesses prior to their statements on the trial may be proven. But I do not think that the courts go any further than to hold that you can impeach the credit of such witnesses by proving prior contradictory statements. Impeachment of their character for truth and veracity is not admissible.

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The question as to the right of a party to impeach his own witness by proving prior contradictory statements long occupied the attention of the English courts, and opposite views were maintained. Lord Denman held in favor of the proposition, while Buller J., opposed it, as did Erskine, J., and others. While the weight of authority was probably against Lord Denman, it was not fully settled until the passage of the English statute on the subject.22 This statute provides 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 statements sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statements." The statute of Massachusetts23 very closely resembles the statute of England in its construction, but in Massa20 Shorey v. Hussay, 32 Me. 579; Whitaker v. Salis

chusetts the power of a rarty to impeach his witness rests entirely with himself and is uncontrolled by the trial court, while in England the whole matter rests in the discretion of the judge to allow it or not. For this reason it has been held in Massachusetts that their statute must be strictly construed.24 The statutes of England and Massachusetts seem to draw no distinction between an ordinary witness and one whom the law compels a party to call. Some of the State statutes are, however, different in this respect. The statute of Indiana25 provides that "a party producing a witness will not be allowed to impeach his bad character unless it was indispensable that the party should produce him or in case of manifest surprise, when the party shall have that right; but he may in all cases contradict him by other evidence and by showing that he has made statements different from his present testimony." An indispensable witness within this statute is one whom a party is compelled to produce to satisfy the requirements of the law. 26 The statute of Kentucky" is very similar to that of Indiana. So it would seem that in at least two States you can impeach a subscribing witness by evidence of bad character. Under the statute of Massachusetts it is not necessary that a party be surprised at the testimony of his witness, in order to impeach his credibility by showing that he has made at other times statements inconsistent with his testimony.28 In Georgia it has been held otherwise under its statute, and contradictory statements of a party's witness cannot be shown unless the witness has deceived or entrapped the party calling him.29 Thus it is that the old rule of the common law has in the course of time been greatly relaxed either by the drift of judicial decision or by the more effective instrumentality of statutes. The change, upon the whole, has probably been beneficial. It is true that rules of evidence are the result of an extended experience in determining truth and should not be changed for any light or frivolous cause. They should be so constructed as to favor the finding of truth in general, even though

24 Ryerson v. Abington, 102 Mass. 526.

25 R. S. of ind. 507 (1881).

26 Defender v. Scott, 32 N. E. Rep. 87.

27 Ky. Code, 596.

Brooks v. Weeks, 121 Mass. 433 20 Dixon v. State, 86 Ga. 754.

they may seem to fail in some particular. Yet even rules of evidence should not be unchangeable. With the advance in our progress, changes in our laws and ever-changing conditions, the rules for determining truth must likewise change. The exclusion of interested parties from the witness stand may have been at one time a mark of wisdom on the part of those who compelled it; to-day it would be considered the greatest folly. Whether or not a strict adherence to the rule prohibiting a party from impeaching his own witness was ever just, in the light of present conditions it would appear safe to say that the States, which by statute have allowed such impeachment to a limited extent, have taken a wise and conservative step in the search after truth. JOHN F. DOHERTY.

EXPERT WITNESS-FEES-CONTRACT.

BARRUS v. PHANEUF.

Supreme Judicial Court of Massachusetts, May 21, 1896.

1. An agreement by one to go into court at a future day and testify as an expert in regard to a matter which he had examined as a civil engineer, is sufficient consideration for a promise to pay a reasonable compensation in addition to the statutory fees.

2. Where an agreement is made by one to go into court at a future day and testify as an expert as to a matter which he had examined as a civil engineer, he is entitled to recover the reasonable compensation (in addition to the statutory fees) promised him therefor, though he is afterwards summoned and pays the reg ular statutory fees, and does not then claim extra compensation, or give notice that he will make such claim. and, though testifying, and advising counsel as to questions to be asked him and other witnesses, he is not asked any question as an expert.

neer.

ALLEN, J.: The jury must have found, upon the evidence, that the defendant engaged the plaintiff to go into court at a future day and testify for him as an expert in regard to a matter which the plaintiff had examined as a civil engiFrom the dates given it would seem that this engagement was six weeks before the trial. The plaintiff agreed to do this, and talked over the matter, and went into court and testified, and during the progress of the trial advised the defendant's attorney in regard to the questions to be asked of himself and of the other witnesses. At some time after he had so agreed to appear and testify the plaintiff was regularly summoned by the defendant as a witness, and was paid the statutory fees, and made no objection thereto, and made no claim for extra compensation, and it would seem that, during his testimony, he was

faith, attends upon court and testifies in a cause, is entitled to all the legitimately necessary expenses of the whole journey, both going and returning, as well as a proper allowance while remaining to testify. Tremain v. Barrett, 6 Taunt. 88. Nor is it necessary in order to sustain such allowance that the foreign witness be in reach of a subpoena from the court in which he is to testify. Lonegran v. The Royal Exchange, 7 Bing. 725. Indeed such a rule is manifestly necessary under the statutes of England on the subject, because no witness is bound to honor a subpoena served upon him beyond the jurisdiction of the country whose laws lend validity to the instru ment. But if he is disposed to waive this privilege of immunity from the process of the foreign courts, good sense and natural justice alike require that he receive his legitimate compensation. But whatever be the reasonable costs and charges under the English practice, the compensation of witnesses in this country is usually regulated by statute without reference to the vocation or profession to which the witness belongs. 1 Greenl. Ev. Sec. 310. Nor can a witness in this country claim compensation for travel without the State whose laws authorize the issuing of the subpoena. Howland v. Lenox, 4 Johns. 311; Melvin v. Whiting, 13 Pick. (Mass.) 190; White v. Judd, 1 Met. (Mass.) 293. Whatever may be the result of some scattering cases holding a contrary rule, the trend of decisions in this country under the statutes which provide for a certain per diem and, in some instances, mileage, going and returning, without reference to the vocation of the witness, is that an expert, like every other citizen, must do his part of duty to the State and her citizens for the common good, and that while he may not be compelled to do any service, such, for instance, as the making of an examination of a dead body to ascertain if death had been brought about by poison, or to examine a wound the character of which would require some special study or preparation in order to testify intelligently concerning same, or, in case of a lawyer, where he would be compelled to take time and make a study before he could correctly answer questions pro pounded to him, or in cases of any other branch of learning where such preparation would have to be made, yet where this is not necessary to enable the witness to answer any proper questions put to him, though the answer to the question would be the result of his learning and past experience in his calling, and regarded by him as worth an extra sum in addition to the statutory allowance, it is but just to the court and litigants as well, and the latter more especially, that the witness make answer to all questions coming within the range of a legitimate and in telligent examination. Ex parte Dement, 53 Ala. 389; State v. Tiepner, 36 Minn. 535; Northampton Co. v. Innes, 26 Pa. St. 156; Flinn v. Prairie Co., 60 Ark. 204, 29 S. W. Rep. 459; St. Francis Co. v. Cummings, 55 Ark. 421, 18 S. W. Rep. 461; Israel v. State, 8 Ind. 467. But an expert witness cannot be compelled to attend the trial and hear all the evidence in order to be able to testify the more intelligently as such expert. This would be requiring a species of preparation which the law does not exact. Flinn v. Prairie Co., 60 Ark. 204, 29 S. W. Rep. 459. But as said by the court in this case: "It is the duty of every citizen to assist, within reasonable limits, in enforcing the criminal laws of the State; and it is not unreasonable that he should be required, on behalf of the State, to give such information as he may possess toward the elucidation of any question arising in a criminal trial, whether that information be in the nature of expert

evidence or not. All persons who, by study or prac tice in an occupation or profession, have become skilled therein, and possessed of knowledge peculiar to the same, are, in law, called experts. There is not an art, trade, profession, or vocation that does not have them. It is evident, therefore, that if all such witnesses are entitled to extra compensation when they testify as experts, the cost of the criminal trials, in cases where such testimony is needed, would be much increased." This decision is under a statute which allows a certain amount for all witnesses who testify without regard to calling or vocation, as is the case in most, or perhaps all, or nearly all of the States. In the case of Webb v. Page, 1 C. & F. 23, the court of common pleas, say: "There is a distinction between the case of a man who saw a fact and is called to prove it in a court of justice, and that of a man who is selected by a party to give his opinion on a matter with which he is peculiarly conversant from the nature of his employment in life. The former is bound, as a matter of public duty, to speak to a fact which happens to have fallen within his knowledge. Without such testimony the course of justice must be stopped. There is no such necessity as to the latter for his evidence, and the party who selects him must pay him." There is some force in this reasoning, and were it not for the fact that the due and orderly administration of justice is paramount to the convenience of any one citizen, and the implied duty the law enjoins upon every good citizen to attend the courts and testify when necessary and proper, to the end that ample justice may be done the humblest citi. izen, it might be conclusive. A case may as easily hinge on expert as any other testimony. Ordinarily, it could not be more to the detriment of an expert witness to attend court to testify as to a fact which he may know from ocular observation than one of which he can testify of by reason of his professional training or skill in any branches of the arts and sciences. In most any case the expert can make more money at his calling than attending court as a witness to testify to the most common-place fact; but this argument may not be had to preclude a party fairly entitled to have the testimony of such a witness as it might in many cases result in a practical denial of justice. This reasoning seems to have impressed the court of King's Bench in the case of Calino v. Godfrey, 1 B. & Ad. 950, where it was held squarely that an attorney who had been subpoenæd as a witness and testified in a case in obedience thereto could not claim compensation for the value of his time while so attending, and that such compensation was not within the statute of Elizabeth entitling a witness to reasonable compensation for attending court. The court in this case even went so far as to lay down the proposition that as the attorney was bound to attend and testify for the compensation provided by law, a contract by the party calling him to pay an additional amount to compensate for loss of time was without consideration, and could not be enforced. The Indiana court in one case has held that an expert may not be compelled to testify as such without extra compensation. But the learned court rests its conclusions partly upon the fact that the constitution of Indiana provided that "no man's services shall be demanded without just compensation." Buchman v. State, 59 Ind. 1. The rule even in this State would probably have been laid down otherwise but for this provision of the constitu tion, which the court seems to have felt impelled to thus regard. Besides, with this constitutional provision, two of the judges dissented, thus weakening the case as an authority. In the Case of Roelker, 2