One of the leading rules of evidence precludes an advocate from impeaching the credit of a witness whom he has himself put forward as a person worthy of belief. He may, as we have seen in our former article, contradict him on a specific point, if he is able to do so by other revelant evidence; but he cannot be permitted any general right to attack the credit of his own witness whose evidence turns out to be unfavourable, even though the witness assumes a position of hostility towards the party on whose behalf he is called. This was the rule at common law, and is affirmed by the sections of the Criminal Law Procedure Act, 1865, to which we have already referred, and which, it may be noted, apply to all Courts of Judicature, as well criminal and all other, and to all persons having by law or by consent of the parties. authority to hear, receive, and examine evidence, whether in England or in Ireland. The statute, it will be remembered, declares that a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but in case the witness shall, in the opinion of the Judge, prove adverse (see p. 327 ante) the party may, by leave of the Judge, prove that the witness has made at other times a statement inconsistent with his present testimony. It is probable that the statutory provision was intended to do away with the uncertainty that then prevailed as to the exact position of a party who was let down by his own witness turning upon him. The law had been discussed in a number of cases, notably in Wright v. Beckett, [1834] 1 Mood. & R. 414, where Lord Denman C.J., after examining the earlier decisions, had declared admissible (Bolland B. dissenting) evidence shewing that a witness had before the trial given to the party calling him an account of the transaction entirely different from that sworn to by him at the trial. In subsequent cases-e.g., Dunn v. Astlett [1838] 2 Mood. & R. 122, Holdsworth v. Mayor of Dartmouth, [1838] 2 Mood. & R. 153, Winter v. Butt [1841] 2 Mood. & R. 357, at nisi prius-this ruling had been bath approved and disapproved, and in the state of uncertainty so created it was very desirable that the exact rule should be stated for the guidance of both Judges and advocates. However that may have been, it is clear that under the statute the advocate has no general right, and that it is for the Judge, not for the advocate, to decide whether the witness is adverse or not; and from the Judge's statement of opinion on this point there is no appeal. In this respect the judicial discretion is absolute and final. Rice v. Howard, [1886] 16 Q. B. D. 681, followed in R. v. Williams, [1913] 77 J. P. 240. The adverse attitude may be gathered from the actual evidence of the witness, from his manner or behaviour in the box, or from his refusal to give proper answers to proper questions. "Adverse" means hostile, not merely unfavorable-Greenough v. Eccles, [1859] 5 C. B. (N. S.) 786-and hostility involves some expression of animus-that is, the Judge must be of opinion that the witness is not desirous of telling the truth to the Court. Coles v. Coles, [1866] L. R. 1 P. & D. 70. A witness who contradicted his proof has been treated as hostile-Anstell v. Alexander, [1867] 16 L. T. 830-but not one who only contradicted his informal statements to the solicitor. Reed v. King, [1858] 30 L. T. 290. In Pound v. Wilson, [1865] 4 F. & F. 301, Erle C.J. said that if a party has been induced to bring a case into Court from a statement which a witness has previously made in a Court of Bankruptcy, and the witness gives different evidence in Court, he may be examined as to his former statement as an adverse witness. Before the refuting evidence of a previous statement can be given, the hostile witness must have his attention called to the matter, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to him, and he must be asked whether or not he has made such statement. The previous statement may be contained in evidence in other proceedings, in letters, or have been made in course of conversation with other people, or in any way that is capable of proof in the present proceedings; but it is not necessary that the, two statements should be directly or absolutely at variance; the one sought to be put in proof need only have tendency to contradict or to be inconsistent with the witness's present evidence, and it is for the Court or the Jury to ultimately decide, upon having the two statements before them-Jackson v. Thomason, [1861] 31 L. J., Q. B. 11-which is to be accepted. It is important to remember that in a criminal case the contents of a previous statement put in to contradict and to discredit a witness are not evidence against the prisoner, and great care should therefore be taken to prevent the jury being adversely influenced against him by anything contained in the statement. R v. Dibble, [1908] 72 J. P. 498. Even apart from actually contradicting or proving a previous inconsistent statement by one's own witness, it is open to an advocate, where a witness on his examination in chief shews himself decidedly adverse to the party on whose behalf he was called, to request permission of the Judge to put his questions in the same way as if he were cross-examining the witness, or, in other words, to put leading questions to the witness. The mode in which the examination of a witness shall be conducted-Bastin v. Carew, [1824] Ry. & Mood. 127-is always in the discretion of the Judge, and a Judge who determines from the manner of a witness that he is really hostile to the party calling him, is quite at liberty to allow that party's advocate the greater latitude allowed to the opposing counsel. But a witness cannot be so treated without the leave of the Judge, and whether the leave be given or withheld is entirely in the discretion of the Judge, even where the witness is actually the other party in the proceedings. Price v. Manning, [1889] 42 Ch. D. 372. Without mentioning all the numerous cases on the subject, it may suffice to say that the practice is the same in both civil and criminal proceedings, and in both it is in the discretion of the Judge how far he will allow the examination-in-chief of a witness to be by leading questions or to assume the form of a cross-examination. See R. v. Murphy, [1837] 8 C. & P. 297. When the leave is given, it does not carry with it all the rights of cross-examination; the questions put must be relevant and material to the issue, and questions whose object is merely to test the credit of the witness, or to emphasize his hostility, cannot be put, nor, by virtue of the statutory provisions, can his general character be attacked by the party calling him. Where, however, a witness at the trial gives evidence contradictory to facts contained in a deposition made by such witness in a former proceeding in the same case, it is open to the Judge to read such deposition to the witness and the jury, in order to impeach the credit of the witness. R. v. Oldroyd, [1805] Russ. & Ry. 88. In such a case it is the Judge who is endeavouring to shew where the truth lies, not the advocate trying to neutralise inconvenient evidence.-Queensland Justice of the Peace. POSSESSION AS A ROOT OF TITLE. In these days when nearly every transaction connected with land is committed to writing there is a tendency to overlook the importance attached by the law to mere possession, but nevertheless possession still remains a root of title. In very early days, no doubt, possession was practically the only title to land; he was the owner who, with his retainers, was strong enough to take, and then to retain, possession. And in the more civilized of ancient communities land was transferred from one person to another by physical possession being given in the presence of witnesses. A record of what was done might be drawn up and signed, as in the case of livery of sei-in, but the writing did not constitute the title to the land; it was merely evidence in support of the title. If a person to-day enters upon and takes possession of a parcel of land, without any title or even color of title thereto, but merely as a wrongdoer, what is his position in the eyes of the law? At first no doubt he is a mere trespasser, and could be evicted by the true owner, or by any person, not being the true owner, who was in possession of the land. But this latter person may himself have originally been a mere trespasser. This raises the question, At what point of time does the original taking of possession by a stranger to the title cease to be regarded as a mere trespass, and evolve into the "possession" that is so respected by the law? The answer appears to be, When he has remained for some time in peaceable possession of the land, exercising with respect to it the ordinary rights of an occupier. In Doe d. Hughes v. Dyeball, the plaintiff in ejectment proved a lease to himself and a year's possession, and rested his case there. The defendant, who had forcibly taken possession, objected that no title was proved in the demising parties to the lease. Lord Tenterten, C.J., said: "That does not signify; there is ample proof; the plaintiff is in possession, and you come and turn him out; you must shew your title." The failure on the part of the plaintiff to prove that his lessors had title obviously made the lease worthless as 1 Moody and Malkin's Reports, 346 (1829). evidence of the plaintiff's title, and the plaintiff succeeded on the other evidence adduced by him, viz., that he had had a year's possession. Thus the case shews that possession in the plaintiff and nothing more is sufficient to enable him to maintain ejectment against a stranger. In Asher v. Whitlock,2 Cockburn, C.J., referring to the above mentioned case, said: "In Doe v. Dyeball one year's possession by the plaintiff was held good against a person who came and turned him out, and there are other authorities to the same effect," thus putting that case upon possession alone. Perhaps the most emphatic way in which the law shews its respect for possession is by its rule that "the fact of posses ion is prima facie evidence of seisin in fee." "The wrongful seisin acquired by a disseisor gave him a real, though wrongful estate, a tortious fee simple' valid as against everyone but the person truly entitled, and capable of being made right and perfect by a release from that person to the person in actual seisin."4 This is very instructive. The law insisted on livery of seisin, but when once a person had been put in possession by this means he was capable of taking a release by deed of an estate in remainder. Here we see that the real owner could perfect the title of a disseissor by giving him a release, no livery of seisin being necessary. The necessity of possession as a root of title explains the ru'e of common law which prevented a person from conveying to himself. "The ancient Common Law essayed to wield the land itself, the most ponderous and immovable of all the elements.' Hence all its rules and form regarded real property as more or less identified with actual possession. The single consideration that livery was the primitive mode of conveyance, for which other forms were but substitutes. and that a man could not deliver seisin to himself, explains many otherwise inexplicable doctrines." A person occupying land without any title has a devisable. interest therein, and if he settles it by his will for successive estates those estates take effect as against a person who enters upon the land, and ejectment may be maintained accordingly. 2 Law Reports, 1 Queens Bench 5 (1865). Per Mellor, J., in Asher v. Whitlock, 6; See also Newell on Ejectment (1892), 433. Pollock and Wright on Possession, 94, citing Co. Litt., §473. 6 Asher v. Whitlock, supra. |