1820. The QUEEN'S Sept. 5. If, on crossexamination, The following question was proposed to the Judges: Whether, according to the established practice in the courts below, counsel cross-examining are entitled, if the counsel on the other side object to it, to ask a witness whether he has made representations of a partito ascertain of cular nature, not specifying in his question whether the question refers to representations in writing or in words? it is proposed a witness whe. ther he has made representations of any particular nature, imme diately after being asked whether he made any representation he must be asked whether he made the representation by parol or in writing. The Judges, after having retired for a short time, returned the following answer : ABBOTT C. J. My Lords, the Judges have conferred upon the question proposed to them by your Lordships. My Lords, the Judges find a difficulty to give a distinct answer to the question thus proposed by your Lordships, either in the affirmative or negative, inasmuch as we are not aware that there is, in the courts below, any established practice which we can state to your Lordships as distinctly referring to such a question propounded by counsel on cross-examination, as is here contained; that is, whether the counsel cross-examining are entitled to ask the witness whether he has made such representation; for it is not in the recollection of any one of us that such a question, in those words, namely, "whether a witness has made such and such representation," has at any time been asked of a witness. Questions, however, of a similar nature are frequently asked at nisi prius, referring rather to contracts and agreements, or to supposed contracts and agreements, than to declarations of the witness; as, for instance, a witness is often asked, whether there is an agreement for a certain price for a certain article, — an agreement for a certain definite time, a warranty, or other matter of that kind, being a matter of contract; and, when a question of that kind has been asked at nisi prius, the ordinary course has been for the counsel on the other side, not to object to the question as a question that could not properly be put, but to interpose, on his own behalf, another intermediate question; namely, to ask the witness whether the agreement referred to in the question originally proposed by the counsel on the other side, was or was not in writing; and, if the witness answers that it was in writing, then the enquiry is stopped, because the writing must be itself produced. My Lords, therefore, although we cannot answer your Lordships' question distinctly in the affirmative or the negative, for the reason I have given, namely, the want of an established practice referring to such a question by counsel; yet, as we are all of opinion that the witness cannot properly be asked, on cross-examination, whether he has written such a thing, (the proper course being to put the writing into his hands, and ask him whether it be his writing,) considering the question proposed to us by your Lordships, with reference to that principle of law which requires the writing itself to be produced, and with reference to the course that ordinarily takes place on questions relating to contracts or agreements, we, each of us, think, that if such a question were propounded before us at nisi prius, and objected to, we should direct the counsel to separate the question into its parts. My Lords, I find I have not expressed myself with the clearness I had wished, as to dividing the question into parts. I beg, therefore, to inform the House, that, by dividing the question into parts, I mean, that the counsel would be directed to ask whether the representation had been made in writing or by words. If he should ask, whether it had been made in writing, the counsel on the other side would object to the question; if he should ask whether it had been made by words, that is, whether the witness had said so and so, the 1820. The QUEEN's Case. 1820. The QUEEN'S the counsel would undoubtedly have a right to put that question, and probably no objection would be made to it. The counsel were called in, and were informed, that if, on cross-examination, they enquired of a witness whether he had made representations of any particular nature, stating the nature of those representations, they must, in their enquiries, ask the witness, first, "whether he made the representations by parol or in writing." The Attorney-General of the Queen enquired, whether he was to understand, before he had asked whether the witness made any representations, he was to ask whether it was in writing. The counsel was informed that he might put the question, referring, in the mode of putting it, to a representation by parol; or, that where a question of that kind was put, the counsel on the other side was justified by the practice in breaking in upon the course of the cross-examination so far as to put the question, whether the declaration, if made, was by parol or in writing. Sept. 6. If, on the trial of an action or indictment, a witness examined on the The following questions were proposed to the judges: First, If, upon the trial of an action brought by A. (Plaintiff) against B. (Defendant), a witness examined on the part of the Plaintiff, upon cross-examination by part of the Plaintiff or prosecutor, upon cross-examination by Defendant's counsel, states that at a time specified he told A. that he was one of the witnesses against the Defendant, and being re-examined by the Plaintiff's or prosecutor's counsel, states what induced him to mention this to A., the Plaintiff's or prosecutor's counsel cannot further re-examine the witness as to such conversation, even as far only as it related to his being one of the witnesses: by eight Judges against one, (Best J. dissentiente,) and confirmed by the House. the the Defendant's counsel, had stated, in answer to a question addressed to him by such counsel, that, at a time specified in his answer, he had told a person named C.D. that he was one of the witnesses against the Defendant, and, being re-examined by the Plaintiff's counsel, had stated what induced him to mention to C. D. what he had so told him, and the counsel of the Plaintiff should propose further to re-examine him as to the conversation between him and C. D. which passed at the time specified in his former answer, as far only as such conversation related to his being one of the witnesses; would such counsel, according to the rules and practice observed in the courts below, with respect to crossexamination and re-examination, be entitled so further to re-examine such witness; and, if so, would he be entitled so further to re-examine, as well with respect to such conversation relating to his being one of the witnesses against B. as passed between him and C. D. at the time specified after he had told him that he was to be one of the witnesses, as with respect to such conversation as passed before he had so told him? Second, If, upon the trial of an indictment against A., a witness examined upon the part of the crown had stated upon cross-examination by the counsel of A., in answer to a question addressed to him by such counsel, that, at a time specified in his answer, he had told a person named C. D. that he was one of the witnesses against A., and being re-examined by the counsel for the crown, had stated what induced him to mention to C. D. what he had so told him, and the counsel for the crown should propose further to re-examine him as to the conversation which passed between him and C. D. at the time specified in his former answer, as far only as such conversation related to his being one of the witnesses, would such counsel be entitled so further to re-examine him; and, if so, would he be entitled so further 1820. The QUEEN'S Case. 1820. The QUEEN'S Case. further to re-examine as well with respect to such conversation, relating to his being one of the witnesses against A., which passed between him and C. D. at the time specified after he had told him that he was to be one of the witnesses, as with respect to such conversation as passed before he had so told him? The Judges having retired, returned, after some time, when, the House being informed that the Judges differed in their opinion as to the answer to be given to the questions proposed to them, they proceeded to deliver their opinions seriatim. RICHARDSON J. delivered his opinion upon both questions in the negative, and referred to the reasons to be delivered by the Lord Chief Justice of the King's Bench. BEST J. delivered his opinion upon both questions in the affirmative, and gave his reasons. GARROW B. BURROUGH J. HOLROYD J. GRAHAM B. RICHARDS C. B. and DALLAS C. J. severally delivered their opinion on both questions in the negative, and referred to the reasons to be delivered by the Lord Chief Justice of the King's Bench. Then the Lord Chief Justice of the King's Bench delivered his opinion upon both questions in the negative, and gave his reasons, in which he stated he was desired by the other Judges, except Mr. Justice Best, to say that they concurred. ABBOTT C. J. My Lords, I agree with the other Judges in considering the two questions proposed to us by your Lordships to be, with reference to the point on which our opinion has been asked, substantially one, and |