any sums for the charge or maintenance of such bastards; or the election or appointment of any officer or officers; or the allowance of accounts of any officer of such district. On an indictment against private persons or corporate Inhabitants of bodies for the non-repair of bridges, inhabitants of the counties. county are made competent witnesses for the prosecution. by statute; (i) and before the statute it seems to be thought that they were admissible. (j) But in prosecutions against a parish or a county, the inhabitants of either are not competent witnesses for the defendants, being, in fact, themselves indicted. (k) § 12. OF CALLING AND EXAMINING WITNESSES. draw. In cases of importance it is frequently requested by Witnesses deone party at the commencement of the trial, that the sired to withwitnesses may withdraw, in order that they may not hear the examination of each other, or the speeches of counsel. This request is always complied with; and is generally accompanied by an intimation from the Court, that if any witnesses remain, in disobedience of its order, they will not be admitted to give evidence. It seems, however, very questionable whether the Court could so far act on this order as to refuse to examine a witness who should remain; for it is difficult to show by what authority a Court can introduce a new kind of disability to the prejudice of a party who may not be implicated in the conduct which is made to deprive him of testimony to which he is otherwise by law entitled; and the consequence of holding such disability absolute would be to enable reluctant witnesses to avoid the necessity of giving evidence, by disobeying the order of the Court, and causing that disobedience to be intimated to the party against whom they are necessarily called, but whom they wish to favour. At all events, the refusal must be a mere act of discretion in the Court, and cannot be required as matter of right by the opposing counsel. By the uniform practice of all courts, the attornies on both sides, whose presence is necessary to the conduct of the case, are excepted from the general order; and it is usual and reasonable to extend the same indulgence to witnesses who are merely to prove matters of form, to medical witnesses, and to witnesses to character. (i) 1 Ann. stat. 1. c. 18. s. 13. (j) The King v. Carpenter, 2 Shaw, 47. Calling wit recognizance. If witnesses, when called, do not appear, they may be nesses on their called on their recognizance if bound over to give evidence, or on their subpoena if subpoenaed to attend, with a view to ulterior proceedings. The means of securing their attendance has been considered already; (7) the expences of their attendance will be included in the consideration of costs. (m) In civil cases, a witness, who has come from a distance, may refuse to be sworn till his expences are paid or secured; but no witness has a right to make this demand in criminal cases. (n) Witnesses who have been regularly subpoenaed or bound over, ought to attend, although they may have reason to think that they will be prevented from giving evidence by a valid objection to their competency; and if subpoenaed to produce documents, ought to bring them, though they may be committed to their care under circumstances which may ultimately excuse them from producing them; for it would be dangerous if witnesses were encouraged to take upon themselves to decide on the admissibility of the proofs required of them. And, therefore, in a case before Lord Ellenborough, at Chelmsford, in 1817, where a prisoner was indicted for stealing certain clover seed, the property of a woman who had been bound over by recognizance to give evidence, and, before the trial, she became the wife of the prisoner, on her failing to appear, Lord Ellenborough refused to discharge her recognizance, although he admitted that, if she had appeared, she could not have been examined against her husband. (0) How called by counsel. The witnesses are called by the counsel on either side in the order which they deem proper. Where there is more than one counsel on a side, they usually examine in turn; but this is mere matter of arrangement among themselves, not subject to any interference from the adversary or the Court; and a leading counsel may not only take the examination of such witnesses as he thinks fit on himself, but may take a witness out of the hands of his junior after an examination has begun. (p) When the case for the prosecution has closed, if there are any witnesses on the back of the indictment whom the counsel has omitted to call, the Court may, and generally will, in case of felony, require them to be called into the box, that the prisoner may have the opportunity of crossexamining them. In cases of misdemeanor, it is not usual to allow this privilege, but to leave the defendant to take (1) Ante, p. 76. (m) Post, chapter 13. (n) The King v. Cooke, 1 Carr. and P. 321. (0) 3 Dick. Pract. Expos. 935. (p) Doe v. Roe, 2 Campb. 280. the responsibility of calling such persons as his own witnesses if he thinks they can depose any thing in his favour. be examined. In general, a witness may be examined as to all matters Matters to which which are not privileged from disclosure for the sake of a witness may others, or which tend to shew that he has himself been guilty of an indictable offence, or of some conduct which will render him infamous. The privilege which prevents the disclosing communications made to him, is strictly confined to such as have been made by, or on behalf of, a client to him as counsel, solicitor, or attorney. (q) And, therefore, physicians, clergymen, and friends to whom communications have been made in the strictest confidence, have been compelled on their oaths to disclose such communications. (r) And even a clerk to the commissioners of the income tax may be compelled in a court of justice to state facts with which he has become acquainted in his official character, and which he is bound by his oath of office to conceal. (s) But the privilege by which legal advisers are privileged, or rather precluded from disclosing what has been confidentially imparted to them, extends to the clerk of an attorney; (t) to an agent of an attorney; (u) to an interpreter between an attorney and client; (v) and to a barrister's clerk, who cannot even be examined as to the time when a particular retainer was delivered for his master. (w) But if a person, who is not an attorney, has been consulted under the erroneous impression that he is one, he will be obliged to disclose all that was told him by a party under the error. (x) To what matters this privilege extends is still, to a certain degree, unsettled; but there are some rules respecting it which are free from doubt. Thus, it is clear that an attorney may be required to speak to any matter which he knew before he was retained, or the knowledge of which he has obtained from facts independent of any confidence; as to prove his client's handwriting; to prove the execution of a deed which he has attested; (y) or to prove matters which he has learned since his employment ceased.(z) The King v. the Duchess of Kingston, 20 How. St. Tr. 612. (2) The King v. Sparkes, cited in Du Barre v. Levette, Peake, N. P. C. 78. (s) Lee v. Birrell, 3 Campb. 337. (t) Taylor v. Forster, 2 Car. and P., N. P. C. 195. (w) Foote v. Hayne, 1 Ry. and Mo. N. P. C. 165. Doe v. Andrews, Cowp. 846. Cuts v. Pickey, 1 Ventr. 197; Coleden v. Kenrick, 4 T. R. 431. What question Examination in chief. Whether the privilege is confined to matters communicated in reference to a suit or prosecution anticipated or pending, or extended to all matters communicated to him as an attorney, is not yet settled. (a) In all cases, the privilege is not that of the witness, but of his client; and he may be stopped, though he should make no objection to answer. (b) But if the client himself examine his attorney as to a matter which has been the subject of confidential communication, he waives the privilege, and opens all communications on that subject to the cross-examining counsel. (c) A witness is privileged from answering all questions, the answers to which would tend to expose him to punishment; and, therefore, a surgeon has been holden privileged to refuse giving evidence of a duel at which he attended professionally to assist one of the parties in case of a wound, by which he became implicated in the transaction. (d) And a witness is further privileged from answering any questions which may produce answers degrading to his character. (e) But such questions may be asked if they do not include matter which must be evidenced by a record, (ƒ) though the inquiry ought not to be pursued after the witness has once objected; and Lord Tenterden has recently refused to permit counsel to comment on the refusal of a witness to answer as if it implied an admission of the charge. (g) If the witness chooses to answer, unless the matter directly relates to the subject of the trial, the party asking the question is bound by his answer, and cannot give evidence to contradict him on the collateral issue, which he or those who call him may not be prepared to determine. A witness is never privileged from answering any question because it will tend to establish that he owes a debt, or subject him to a civil action. (h) But this rule does not compel a person who is a party in a case, as a rated inhabitant of an appellant or respondent parish, to give evidence against a body of which he is a member. (i) On the examination in chief, counsel are not in general (a) In favour of the extension; see Cromark v. Heathcote, 2 Brod. and Bing. 4; Brand v. Ackermann, 5 Esp. R. 120; Robson v. Kemp, id. 52; Walker v. Wildman, 6 Mod. 47; for the restriction, see Williams v. Mundie, 1 Ry. and Mo. N. P. C. 34. (b) Wilson v. Rastal, 4 T.R. 759. (c) Vaillant v. Dodemead, 2 Atk. 524. (e) Roscoe on Ev. 77. ƒ) The King v. Edwards, 4 T. R. 440. (g) MS. and see 2 Stark. 157. (h) 46 Geo. 3. c. 37. (i) The King v. Woburn, 10 East, R. 398. permitted to ask leading questions, that is, questions which, in their terms, suggest the answers. But where a witness is obviously hostile, the Court may, in their discretion, allow the examination in chief to assume the form of a cross-examination, and permit the witness to be severely pressed with direct questions on points upon which he seems inclined to palter. (j) It is usual also, for convenience sake, to allow introductory questions in all cases to be put in a leading form; and where the matter is really not essential, or disputable, an objection to such questions ought to be discouraged as vexatious. A counsel should also, except in peculiar cases, be permitted to lead to the matter as to which he is instructed to examine, though not to the answer; or otherwise the time of the Court may be occupied with hearing wholly irrevelant facts and conversations. On this subject, it is impossible to lay down any general rule; on the one hand, any attempt to suggest the answer, where that answer is material, ought to be vigilantly repressed; but, on the other hand, objections to questions which merely tend to confine the witness to the subject matter of inquiry, or which even lead him as to introductory matters, should be repressed by the Court as tending to introduce perpetual discussions, to waste the time of the public, and distract the attention of the jury. A witness may refresh his memory by looking at any memorandum made by himself, or under his direction, at or near the time of the transaction; but not by looking at a copy of such entry made by himself at a subsequent period. On cross-examination, a much greater latitude is al- Cross-examinalowed; leading questions may be asked; but the witness tion. must not, even when cross-examined, be supplied with the very words he is desired to echo. (k) Where it is proposed to contradict a witness by something which he has written, he may not be cross-examined as to the contents of the paper, but the paper itself must be shown to him, and, on his admitting the handwriting, read as the evidence of the cross-examining party, either at that time, or when he calls his witnesses-a rule laid down in the case of the late Queen, which has greatly narrowed the use of this means of shaking a witness's credit. () To whatever point a witness may be called, (j) Clarke v. Jeffery, 1 Ry. and Mo. N. P. C. 126. |