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dwelling-house, to the intent or whereby bis creditors shall or may be defeated or delayed for the recovery of their past debts, &c., shall be accounted and adjudged a bankrupt.
Ifi the case of Thompson and wife against Trevanion (1), which was an action of trespass and assault, Lord C. J. Holt allowed what the wife said, immediately upon the hurt received, and before she had time to devise or contrive any thing for her own advantage, to be given in evidence. So, on an indictment for a rape, what the girl said recently after the fact, (so that it excluded a possibility of practising on her,) has been held to be admissible in evidence, as a part of the transaction (2). So in the case of Aveson v. Lord Kinnaird (3), where, (in order to ascertain whether the deceased was in a good state of health on the day of the insurance, it became material to consider what the state of health was both before and after that day,) the account, which the deceased gave some days after obtaining the certificate of good health, respecting her state on the former day, was admitted at the trial, and the Court of King's Bench were of opinion, that it had been properly admitted. And it is in every day's experience, said Mr. Justice Lawrence in this case, that what a man has said of himself to his surgeon is evidence, in an action of assault, to shew what he has suffered by reason of the assault. So, it should seem, in an action for criminal conversation, the declarations of a wife at the time of her elopement, stating the reason of her eloping, (as, that she fled from an immediate fear of personal violence,) would be evidence against the husband (4); but a collateral declaration, respecting a matter which happened at another time, would not be admissible. And where, in an action for criminal conversation, the defence was, that the plaintiff had connived at his wife's elopement, evidence was received, on the part of the
(i) Skin. 40a, cited by the Court, (3) 6 East, 188,198; inn, p. 181.
(i) Bruin's cast, I East, Pl . Cr.
plaintiff, plaintiff, of the wife's declarations as to her intention and purpose in going (i); for the question, in effect, was, whether the husband knew, that she was about to elope, or whether he believed, that her intention was as she represented.
(i) Hoare v. Alien, 3 Esp. N. I*. C. the motion for a new trial, were of 176, before Lo;d Kenyon, on id trial, opinion, that this evidence ought to be who said, that some of the Judges, on admitted.
On the Examination of Witnesses.
\ FTER considering, in the last chapter, what kind of evidence ought to be produced for ascertaining the points in issue, the next subject of inquiry relates to the manner, in which witnesses are to be examined.
The ordinary mode of proceeding in the courts of common law, preparatory to the examination of a witness, is to swear him in chief, unless an objection should be made to his competency; in which case, the practice formerly was to examine him on the voire dire, and this was so strictly observed, that, if a witness were once examined in chief, he could not afterwards be objected to on the ground of interest. But, in later times, the rule has been to a certain extent relaxed, and now, if it should be discovered in any stage of the trial, that a witness is interested, his evidence will be rejected. This is as well for the convenience of the Court, as for the purposes of justice. The examination of a witness, to discover whether he has any interest in the cause, is frequently to the same effect as his examination in chief; it therefore saves time and is more convenient, that the witness should be sworn in chief in the first instance; and if it should afterwards appear that he is interested, it will then be time to take the objection (1). This relaxation, however, of the ancient rule, doe6 not extend so far, as to allow the counsel on the cross-examination to ask the witness every sort of question, which might be proper on the voire dire. For example, after an examination in chief, a witness is not to be cross-examined as to the contents of a will not produced in court, under which it is suggested that he takes some interest, although such questions might be properly asked in an examination on the voire dire. (2)
When the witness has been regularly sworn, he is first examined by the party which produces him; after which, the other party is at liberty to cross-examine. The examination is in open court, in the presence of the parties, their attornies and counsel, and before the judge and jury, who have thus an opportunity of observing the understanding, demeanor, and inclination of the witnesses.
Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed on the examination in chief; for, to direct witnesses in their evidence would only serve to strengthen that bias, which they are generally too much disposed to feel, in favour of the party that calls them. But, if a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the Court will in its discretion allow the examination in chief to assume the form of a cross-examination. And, in examining a witness for the purpose of directly contradicting another witness, on the opposite side, as to some particular parts of his evidence, which no general examination in chief would be able to touch, leading questions may be properly asked. Thus, for example, after exhausting the witness's memory as to the contents of a written instrument, he may be asked whether it contained a parti
(1) Turner v.Pearte, I T. R. 717. (1) Howell v. Lock, i Ctmyb. 14. Perigil v. Nicholson, 1 Wightw. 64.
cular cular passage, which has been sworn to on the other side; otherwise it would be scarcely possible ever to come to a direct contradiction. (i)
A witness cannot be compelled to answer any question, which has a tendency to expose him to penalties, or to a criminal charge (2). Thus, on an indictment for a rape, the woman is not obliged to answer, whether on some former occasion she had not a criminal connection with other men or with particular individuals (3); nor is evidence of such criminal intercourse admissible (4). So, on an appeal against an order of bastardy, a person cannot be compelled to acknowledge himself the father of a bastard child; but there is no objection to his being sworn, and, if he chooses, he may confess the fact (5). So, it has been held, in an action for a libel (6), (which was published by the defendant in a voluntary affidavit sworn extrajudicially before a magistrate,) that the magistrate's clerk is not bound to answer, whether he wrote the affidavit and delivered it to the magistrate, because the bare copying out of a libel is criminal.
Further, there are some authorities in support of the position, that a witness is not compellable to declare his own infamy, nor to confess what has a direct tendency to degrade his character (7). In Cooke's case, reported in the State Trials, where a question arose, whether a juryman, who had been challenged, might be examined as to his having asserted the guilt of the prisoner before the trial, C. J. Treby
(1) Courteen v. Touse, i Cirapb. 43.
(1) R.v.Ld.G.Gordon,aDoug.593. Title v. Gievet, 2 l.d. Raym. 1088. 16 Ves. jus). 142. Preamb. Si. 46 G. 3.
c37- . . ,
(3) Hodgson's case, by a majority of the Judges on a case reserved, 1812, MS. Dodd v. Noiris, 3 Campb.519.
(4) By the opinion of all the Judges in Hodgson's rase, MS.
(5) R. v. St. Mary's, Nottingham, 13 East, 58. n.
(6) Maloney v. Bartley, before
Wood B. 3 Campb. 110. A bill of exceptions was tendered, but afterwards dropped.
(7) Vid. dictum by Treby C. J. in Cooke's case, 4 St. Tr. 748, and by Pratt C. J. Sayer's case, 6 St, Tr. 259. R. v. Lewis, 4 Esp. N. V. C. 2l5. Macbridev.Macbride,do. 242.— In R. v. Edwards, 4 T. R 440, on an application to bail the prisoner, the Court allowed the counsel to ask one of the bail, whether he had stood in the pillory for perjury.
said, "You may ask upon the voire dire, whether he has any interest in the cause, nor shall we deny you liberty to ask, whether he is qualified according to law by having a freehold of sufficient value: but that you may ask a juror (i) or witness every question that will not make him criminous, that is too large. Men have been asked whether they have been convicted and pardonedfor felony, or whether they have been whipped for petty larceny, but they have not been obliged to answer; for although their answer in the affirmative will not make them criminal, nor subject them to punishment, yet they are matters of infamy, and, if it be an infamous thing, that is enough to preserve a man from being bound to answer. A pardoned man is not guilty: his crime is purged. But merely for the reproach of it, it shall not be put upon him to answer a question, whereon he will be forced to forswear or disgrace himself. So, persons have been excused from answering, whether they have been committed to bridewell, as pilferers or vagrants, &c.; yet to be suspected is only a misfortune and shame, no crime. The like has been observed in other cases of odious and infamous matters, which are not crimes indictable." (2)
In Layer's case (3), on an indictment for high treason, the prisoner insisted that a witness should be examined on the voire dire, whether he had a promise of pardon, or some other reward, for swearing against him; the point was argued by his counsel, and over-ruled by the Court. The Lord Ch. J. Pratt said, "You see, the most you can make of it, is, that it is an objection to his credit; and if it goes to his credit, must he not be sworn, and his credit left to the jury? He must be examined as a legal witness. But if this man, under expectation or promise of a pardon, comes here to swear that which is not true, and you would ask him to that, he is not obliged to answer it. No body it to discredit himself, but always to be taken to be innocent, till it appear
(1) See alto Go. Lit. 158. b. (3) 6 St. Tr. 359.
(a) Cook«'« cis«, 4 St. Tr. 748.