the other side have no right to cross-examine him. Clifford v. Hunter, 3 C. and P. 16.

Credit of witness, how impeached and supported.] In order to impeach the credit of a witness, evidence may be given of statements made by him, at variance with his testimony on the trial; De Sailly v. Morgan, 2 Esp. 691; but in order to lay a foundation for the evidence of such contradictory declaration or conversation, the witness must be asked, on cross-examination, whether he has made such declaration, or held such conversation. Queen's case, 2 B. and B. 301. Before you can contradict a witness by 'showing he has, at some other time, said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so. Per Tindal, C.J. Angus v. Smith, 1 M. and M. 474. The witness may be reexamined as to these contradictory statements; and the counsel has a right, upon re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions; but he has no right to go farther, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. Queen's case, 2 B. and B. 297. There is a distinction, however, between conversations which a witness may have had with a party to the suit and a conversation with a third person. The conversations of a party to the suit, relative to the subject matter of the suit, are in themselves evidence against him in the suit; and if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject matter of the suit. Ibid. It has been doubted, whether, to corroborate the testimony of the witness whose credit has been impeached, evidence is admissible that the witness affirmed the same thing before on other occasions; Gilb. Ev. 150, B. N. P. 294; but such evidence has been held inadmissible, on the ground of its not being given on oath. R. v. Parker, 3 Dougl. 242; but see Luttrel v. Reynell, 1 Mod. 283. See also 2 Evans's Pothier, 251, 1 Stark. Ev. 149, 2 Russ. on Crimes, 635, 2d edit.

If a witness gives evidence contrary to that which the party calling him expects, the party cannot give general evidence ta

show that the witness is not to be believed on his oath. Ewer v. Ambrose, 3 B. and C.749. Nor, as it seems, is it competent to him to prove that the witness has previously given a different account of the transaction. Id. But he may prove the facts denied, by other witnesses. Lowe v. Joliffe, 1 W. B. 365. Alexander v. Gibson, 2 Campb. 555. Richardson v. Allan, 2 Stark. 334.

Privilege of not answering questions.] Where a question is asked, the answer to which would tend to expose the witness to punishment, or to a criminal charge, as to convict him of the offence of usury, Cates v. Hardacre, 3 Taunt. 424, he cannot be compelled to answer; see the cases collected, 1 Phill. Ev. 262; and therefore such questions ought not to be put. Cundell v. Pratt, 1 M. and M. 108. But if the time limited for the recovery of the penalty has expired, the witness may be compelled to answer. Roberts v. Allutt, 1 M. and M. 192. And if à witness answers any questions on a matter rendering him liable to forfeiture or punishment, he cannot afterwards claim his privilege, but must answer throughout. East v. Chapman, 1 M. and M. 47. The objection to such questions must come from the witness and not from the counsel in the cause. Thomas v. Newton, Ibid. 48. So he cannot be compelled to answer questions which might subject him to a forfeiture of his estate. Ibid. 264. And see stat. 46 Geo. III. c.37. But a witness cannot legally 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 kind or nature whatsoever), on the 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. 46 Geo. III. c. 37. A witness is not compellable to answer questions which are degrading to his character; Cooke's case, 13 How. St. Tr. 334; Friend's case, 13 How. St. Tr. 17; Layer's case, 16 How. St. Tr. 161; though it seems that such questions may legally be asked. R. v. Edwards, 4 T. R. 440; R. v. Holding, Archb. Cr. Law, 102; Cundell v. Pratt, 1 M. and M. 108; and see the cases collected, 1 Phill. Ev. 269. If the witness chooses to answer the question, his answer is conclusive. 2 Watson's Trial, by Gurney, 288; see also Rose v. Blakemore, R. and M. 383.

A witness also is not compellable, or indeed allowed to reveal communications, the disclosure of which might be injurious to the interests of the state. Thus, questions tending to the discovery of the channels by which a disclosure of treasonable transactions was made to the officers of justice, are not permitted to be asked. Hardy's case, 24 How. St. Tr. 814. R.v. Watson, 2 Stark. 136. So communications between the governor of a colony and his attorney-general are confidential, and cannot be disclosed. Wyatt v. Gore, Holt, 299; and see Cooke v.

F

Maxwell, 2 Stark. 184. So also a letter written by an agent of government to one of the secretaries of state. Anderson v. Hamilton, 2 B. and B. 156 (n).

Opinion of witness when admissible.] In general the opinion of a witness as to any of the facts in issue is inadmissible as evidence, unless upon questions of skill and judgment. Thus, in an action of trespass for cutting a bank, where the question is whether the bank, which bad been erected for the purpose of preventing the overflowing of the sea, had caused the choking up of a harbour, the opinions of scientific men as to the effect of such an embankment upon the harbour are admissible. Folkes v. Chadd, 3 Dougl. 157. 1 Phill. Ev. 276, S. C. 4 T.R. 498, S. C. cited. And where the question is, whether a seal has been forged, seal-engravers may be called to show a difference between a genuine impression and that supposed to be false. Ibid. per Lord Mansfield. So a physician who has not seen the particular patient, may, after hearing the evidence of others, be called to prove, on oath, the general effects of the disease described by them, and its probable consequences in the particular case. Peake, Ev. 208. The opinion of a person conversant with the business of insurance may be asked, as to whether the communication of particular facts would have varied the terms of insurance, but not as to what his conduct would have been in the particular case. Berthon v. Loughman, 2 Stark. 258. Camden v. Cowley, 1 W. Blacks. 417. R. v. Wright, Russ. and Ry. C. C. R. 456. But see Durrell v. Bederley, Holt, 286; and see unte, p. 70, as to the evidence of persons skilled in forgeries. So the evidence of a ship-builder has been admitted on a question of sea-worthiness, though he was not present at the survey. Thornton v. Royal Exchange Ass. Co. Peake, 25. So a person versed in the laws of a foreign country may give evidence as to what, in his opinion, would, according to the law of that country, be the effect of certain facts. R. v. Wakefield, Murray's ed. p. 238. Chaurand v. Angerstein, Peake, 44.

Memorandum to refresh witness's memory.] A witness will be allowed to refer to an entry, or memorandum, made by himself shortly after the occurrence of the fact to which it relates, in order to refresh his memory, and this though the entry or me. morandum would not of itself be evidence; Kensington v. Inglis, 8 East, 289; as a receipt on unstamped paper. Rambert v. Cohen, 4 Esp. 213. If the witness cannot speak to the fact from recollection, any farther than as finding it entered in a book or paper, such book or paper ought to be produced, and if not evidence, the testimony of the witness amounts to nothing. Doe v. Perkins, 3 T. R. 749. But where a witness, on seeing his initials affixed to an entry of payment, said, “I have no recollection that I received the money; I know nothing

but by the book, but seeing my initials, I have no doubt that 1 received the money," this was held sufficient evidence. Maugham v. Hubbard, 8 B. and C. 14. A witness may refresh his memory by reference to entries in a book, which he did not write with his own hand, but which he examined from time to time while the events recorded were fresh in his recollection Burrough v. Martin, 2 Campb. 112; but he will not be allowed to refresh his memory with a copy of a paper made by himself six months after he wrote the original, though the original is proved to be so covered with figures as to be unintelligible. Jones v. Stroud, 2 C. and P. 196. However, in one case where a witness refreshed his memory from a paper not written by himself, Lord Ellenborough said, that it was sufficient if a man could positively swear that he recollected the fact, though he had totally forgotten the circumstance before he came into court; and if, upon looking at any document, he can so far refresh his memory as to recollect a circumstance, it is sufficient. Henry v. Lee, 2 Chitty, 124. If the witness be blind, the paper may be read over to him. Cutt v. Howard, 3 Stark. 4. Where a paper is put into the hands of a witness to refresh his memory, the counsel on the other side has a right to inspect it, without being bound to read it in evidence. Sinclair v. Stevenson, 1 C. and P. 582. R. v. Ramsden, 2 C. und P. 603.

EFFECT OF EVIDENCE.

Under the present head will be collected the most material cases relative to the effect of judgments, verdicts, and other judicial proceedings, of instruments of state, of public books and registers, and lastly of awards.

First, with regard to the effect of judgments and verdicts in the superior courts of this country.

Effect of Judgments and Verdicts.

Effect of judgments and verdicts in the superior courts with regard to the parties.] It is a general principle that a transaction between two parties in judicial proceedings ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. And therefore the depositions of witnesses in another cause, in proof of a fact, the verdict of a jury finding. a fact, and the judgment of the court on facts found, although evidence against the parties, and all claiming under them, are not in general to be used to the prejudice of strangers. Per De

Grey, C.J., Duch. of Kingston's case, 20 How. St. Tr. 538. In order to bind the party he must have sued, or been sued, in the same character in both suits. Thus in an action by an executor on a bond, he will not be estopped by a judgment in an action brought by him as administrator on the same bond, but he may show the letters of administration repealed. Robinson's case, 5 Rep. 32 b. In considering the effect of judgments the court will look to the real parties to the suit. Thus a verdict in trespass against a person who justified as servant of J. S., was allowed to be given in evidence against the defendant, who also acted under J. S., J. S. being considered the real defendant in both causes. Kinnersley v. Orpe, Dougl. 517. But such evidence is not conclusive. Outram v. Morewood, 3 East, 366. So a verdict against one defendant is evidence in a second action against the same, and other defendants, if the latter claim under the first defendant. Strutt v. Bovingdon, 5 Esp. 58, Gilb. Ev. 32.

Effect of judgments and verdicts in the superior courts with regard to privies.] Privies stand in the same situation as those to whom they are privy. Thus a privy in blood, as an heir, may give in evidence a verdict for, and is bound by a verdict against his ancestor. Locke v. Norborne, 3 Mod. 141; see Outram v. Morewood, 3 East, 346. So of privies in estate. Therefore, if there be several remainders limited by the same deed, a verdict for one in remainder may be given in evidence for one next in remainder. Pyke v. Crouch, 1 Ld. Raym. 730. B. N. P. 232. See Doe v. Tyler, 6 Bingh. 390. So a verdict for or against a lessee, is evidence for or against him in reversion. Com. Dig. Ev. (A.5), Gilb. Ev. 35, 1 Phill. Ev. 308; but see B. N. P. 232, 1 Stark. Ev. 192. So of privies in law; thus a verdict against an intestate, or testator, binds his representatives. R. v. Hebden, And. 389. In the same manner a judgment against the schoolmaster of a hospital, concerning the rights of his office, is evidence against his successor. Travis v. Chaloner, 3 Gwill. 1237. Upon the same principle a judgment of ouster against a mayor was allowed to be given in evidence to prove the ouster is a quo warranto against a third person, admitted by him. R. v. Hebden, 2 Str. 1109, B. N. P. 231, 2 Selw. N. P. 1089, S. C.; but such evidence is not conclusive. R. v. Grimes, 5 Burr. 2598.

Effect of judgments or verdicts in the superior courts with regard to strangers.] There are several exceptions to the general rule, that no one shall be bound by a judgment to which he is not party or privy. In the case of customs, or tolls, verdicts, whether recent or ancient, respecting the same custom or toll, are evidence between other parties. City of London v. Clerke, Carth. 181, B. N. P. 233. So in the case of customary com