should be carefully considered and scrutinized. Satisfactory demeanor, intrinsic probability of their statements, and the absence of any direct contradiction, should unquestionably entitle them to belief. Testimony is not to be disbelieved merely because the witnesses are servants of the party for whom they testify; for example, employees of a defendant railroad company in an action to recover damages for personal injuries. "The personal interest which such a relation might possibly create is not to be overlooked in weighing their evidence, but that their statements are to be utterly discredited or disregarded because of that fact is a conclusion which jurors are much too ready to adopt, and which neither reason nor experience warrants." Testimony of a servant attempting to exonerate himself from a charge of negligence should not be disbelieved upon a mere assumption that he is committing perjury. But if a court concluded there was perjury somewhere, it would rather impute the offense to a servant making an improbable statement in exoneration of himself from heavy responsibility for negligence, than charge with intentional falsehood a considerable number of opposing witnesses not obsessed by so strong an influence. In a collision case between vessels Mr. Justice Grier said: "It is vain to expect the truth from the steersman or pilot of the colliding boat. He will not admit that he was drunk or asleep, or paying no attention, and not keeping a proper lookout." . . . In a case in Vermont against a railroad company where it was a question whether the bell on the defendant's locomotive was rung just before the plaintiff was injured, servants of the defendant testified that it was rung, and the plaintiff's counsel (now a member of the United States Commerce Commission) made the following sarcastic comments in his argument to the jury: "I don't know how many suits in which railroad companies were involved you may have heard tried, but it is a general rule that the bell always rings. There is no case on record in which the bell did not ring. . . . One of the stock questions which a railroad manager asks an applicant for employment is, 'Does the bell ring?""... The fact that a witness is a defendant in a criminal case does not condemn him unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility. If the punishment prescribed for the offense or the disgrace of guilt is severe, the defendant would be under the strongest possible temptation to give evidence favorable to himself. The jury properly consider his manner of testifying, the inherent probabilities of his story, the amount and character of the contradictory testimony, the nature and extent of his interest in the result of the trial, and the impeaching evidence, in determining the measure of credence to which he is entitled.

210. JOHN C. REED. Conduct of Lawsuits. (1912. 2d. ed. § 50.) . . We now add a quotation from Quintilian, which is more detailed in its directions, and which reads as if it were written by an experienced counsel of our time: "Let us allow plenty of time . . . and a place of interview free from interruption to the clients who shall have occasion to consult us. . . . Nor should the counsel be content with hearing only once: the client should be required to repeat the same things again and again; not only because some things might have escaped his memory at the first recital, especially if he be, as is often the case, an illiterate person; but also that we may see whether

he tells exactly the same story; for many state what is false, and, as if they were not stating their case, but pleading it, address themselves not as to an advocate, but as to a judge. We must never, therefore, place too much reliance on a client; but he must be sifted and cross-examined, and obliged to tell the truth; for as by physicians, not only apparent ailments are to be cured, but even such as are latent are to be discovered, even though the. persons who require to be healed conceal them, so an advocate must look for more than is laid before him. . . . A client is often ready to promise everything, offering a cloud of witnesses and sealed documents quite ready, and averring that the adversary himself will not even offer opposition on certain points. If it is therefore necessary to examine all the writings relating to the case, it is not sufficient to inspect them; they must be read through; for very frequently they are either not at all such as they were asserted to be, or they contain less than was stated, or they are mixed with matters that may injure the client's cause, or they say too much and lose all credit from appearing to be exaggerated."

This passage, both in its exhortation to look with a skeptical spirit into every part of the case and its warnings against the biased representations of the party, deserves the meditation of every lawyer. If the advice of the celebrated author was wise in his day, it is more valuable now.

211. AMOS C. MILLER. Examination of Witnesses. (Illinois Law Review. 1907. Vol. II, p. 244.) . . . How to find out who are available witnesses to support your Client. To successfully accomplish this involves, in the start, what is to my mind the most important part of a proper preparation of any case for trial, and that is to ascertain the exact truth and the whole truth regarding the case and the strongest features on your side of the controversy. To the novice in the trial of cases, this task seems very easy. All he has to do is to listen to his client's tale, swallow it whole, and tell him to bring as many witnesses as he can to swear to the same thing. He then goes into the trial confident and happy. But before the trial has progressed very far, he learns to his dismay that there is another story. He is surprised, chagrined, and angered to find that witnesses, apparently disinterested, are willing to come into court and boldly commit perjury. He cross-examines angrily, and to no purpose, except to gain the ill-will of the court and jury and to bring out corroborative circumstances against him which opposing counsel had failed to elicit. His own apparent discomfiture adds to his heavy burden, and he is defeated. He goes home reflecting on the degeneracy of mankind, the ignorance of the court and the evils of our jury system. But when time has cooled his ardor and especially after he has had one or two more such experiences — he begins to wonder if his client did really tell the truth. That doubt, upon further reflection, gradually ripens into a conviction that his client did not tell him the truth; and his pessimistic state of mind as to courts, jury, human nature, and things in general is thereby relieved.

After a few such experiences the young practitioner finds that getting at the truth, and all of the truth, far from being an easy matter, is a most difficult one; and especially is this so in cases involving complicated facts, or where the matters in dispute have occurred some years before (as is quite commonly the case here in this county when cases are reached for trial).

In all men the memory is more or less subject to the will and to the wish. The farther away the events, the more active and potent are these influences. Many persons deliberately conceal from their lawyers unfavorable facts and deliberately misrepresent others. We should expect to find this disposition only among the ignorant; but the fact is we frequently find it among successful business men accustomed to deal with matters of importance. Sometimes so strong is this disposition of clients, to cover up pitfalls even when talking to their own counsel, and to color the facts, if not to misrepresent, that often it will be found necessary to tell the client that if he concealed anything or misrepresented or colored anything, his lawyer cannot be of the slightest help to him; whereas, if he would be careful to state all of the facts, especially all the unfavorable facts, he might still disclose a good case and a winning case.

Not only must the trial lawyer be careful in talking to his client, but also in talking to his client's witnesses, even those who are wholly disinterested. When a disinterested person is enlisted as a witness on one side of the case, his sympathies and desires naturally become involved with the person calling him; and when he discovers what things the litigant desires to prove, a witness, especially if the events are distant in time, is apt to unconsciously give a strong coloring to the facts and sometimes to remember things he did. not see; and more often to innocently misrepresent things he did see. It is no uncommon thing at all for a lawyer to discover that a witness, who, while waiting for the trial, has been fraternizing with other witnesses in the same case, finally remembers that he saw things which the other witnesses saw, but which he did not and could not have seen, and did not claim to have seen when first talked to. That fact arises, not from an intention to deliberately falsify, but from the desire to be an important element in the case. This fact, I have no doubt, accounts for a large part of the false testimony that we find in our courts in so many of the important cases that are tried, and especially in the personal injury cases.

212. RICHARD HARRIS. Hints on Advocacy. (Amer. ed. 1892. p. 45.) Besides determining whether the witness be false or true, or an artful twister of facts, you will also ascertain whether he has a strong bias in one direction, or a prejudice in the other. If he have a strong leaning to the side of your opponent, you will have the less difficulty in disposing of him, because it will be easy to lead him on until his bias becomes so manifest and overpowering that the jury will discount his evidence, and to such an extent that, if the case depend upon him, they will throw it over altogether. A strong interest weakens the side on which it lies. It will therefore be clear that in crossexamining a witness of this kind it will be proper to elicit this at the earliest opportunity. If it comes last, it will be far weaker, because it will not altogether undo the effect which his evidence may have made upon the minds of the jury. The interest a witness has in a case should therefore be shown early in the cross-examination, if it has not been made manifest before.

But it may be the witness has no interest. He may nevertheless be a partisan; and partisanship is often stronger than self-interest, although the latter has somewhat erroneously, as it seems to me, been described as the most powerful principle influencing human actions. In a great number of cases there is something of partisanship, and you may take it as a rule

that an absolutely unbiased witness is rare. The strong partisan, however, is only produced by public matters, parochial disputes, boundary questions, quasi-political inquiries, medical cases, rating matters, running-down causes, and other investigations, where the witnesses seem naturally to take sides. You should remember that though a man may go into the witness-box under compulsion, he never gives his evidence without a motive. It may be a strong or a weak one, but it exists; find that out, and you will be able to do so if you watch and listen attentively. The man whose motive is simply to speak what he knows, manifests it in every tone, look, and word. You will not have much difficulty in dealing with him. If you believe in your own case, you may believe in this witness not to injure it if you are discreet in examining him; that is, if you examine in such a manner that his answers cannot be misunderstood. But what are you to ask him? Listen to his evidence if it agrees with your case, nothing; if not, note the points that are against you. And in dealing with the modes of cross-examining the different kinds of witnesses further on, I will endeavor to point out the manner of dealing with a witness who has a pure motive, but whose evidence conflicts with your case.

But suppose the witness has some other motive in giving his evidence. You will endeavor to ascertain what it is. If you watch carefully, you will find a difference in tone and manner when he is speaking more directly from the particular motive. Suppose it's revenge? Any point which seems more particularly to damage his adversary will be laid stress upon. Any answer that he makes which he thinks will damage him will be uttered in a more ready tone and with evident satisfaction. It will manifest itself in his voice, in his look, and his whole demeanor. That, therefore, must be stamped upon the mind of the jury by your cross-examination. . . .

The truthful witness has been said to be the most difficult of all to crossexamine. I cannot help differing so much from that opinion as to say that I have always regarded him as the easiest of any. When I say truthful, I do not intend to imply that his evidence is necessarily true. If it were so, it would be idle to cross-examine at all. What I mean by a truthful witness is one who believes and intends his evidence to be true. He is the easiest to deal with, because he does not equivocate or prevaricate. He has no secret meaning, and gives his answers readily and without mental reserve. He desires to tell you all he knows, and his credibility, I will assume, is unimpeachable.

The first thing to ascertain in cross-examining a witness of this class, is whether he has any strong bias or prejudice in the matter under inquiry. One or two carefully worded questions will discover this, if you have not already learnt it from his answers-in-chief. Suppose, for example, he is a clergyman, and the question is as to a certain place of entertainment being a nuisance either as being badly conducted or conducing to immorality. He tells you truthfully enough what he has seen, and speaks with indignant or pathetic tones of the vicious example to the inhabitants of the neighborhood. . . . If he has not referred to particular instances, you may safely proceed to lead him to condemn all places of public amusement of a similar kind. If you lead him gently, he will follow with remarkable docility. I have seen this course pursued by eminent leaders with great success. A man who condemns all alike is not the witness to impress a jury with the

value of his evidence in the particular instance, especially where it is far more a matter of opinion than fact. Even fact itself may be represented as so shocking by a witness of this kind as to create laughter instead of indignation. I once heard... a clergyman describe the conduct of two individuals as debased and disgusting; when questioned as to what they were doing, he said, with great solemnity, "he saw the man kiss the girl and hold her hand." On being asked if he had never been guilty of similar conduct in his earlier days, he declined to answer, and amid an outburst of laughter said, "But the girl was a Sunday school teacher." This not being enough to produce the effect he innocently anticipated, he threw into the scale, as a final circumstance of depravity, the fact that, at the time, he believed the young man was paying his addresses to another young woman.

213. A. G. W. CARTER. The Old Court House [in Cincinnati]. (1880. p. 412.) It is a solemn truth -regret it as we may- that preachers make bad, very bad, witnesses in court. It would seem that in the efforts of their life, they deal with so much of uncontradicted fancy, instead of fact, that they cannot tell how a fact transpired when they are called upon the witness stand. I remember more than one case in the old court and courthouse, where preachers were called to testify, and they invariably spoiled the broth. On one occasion in a murder trial, which created in the community the most intense interest, and the greatest excitement, a certain distinguished Methodist preacher was called upon to testify for the State, and he did do so "with a whereas." He in his testimony, as was very plainly to be seen, was for hanging the poor prisoner, and upon this point (he by no means wished to hang the jury), therefore, he was most absolute and positive in his declarations, and became so dogmatic, that the Court upon the call of the attorney for the defense stopped the witness and finally made him take his seat in the witness box. Now this witness colored everything he said with the fancies of his profession. . . . At one time he said, "the deceased trusted the defendant, and had all confidence in him, but the prisoner was a Judas to him, and stabbed him to the heart, and set his house on fire," and this was said as the truth and the fact by the preacher witness, and yet he did not see it, or know it. He only knew of some surrounding circumstances, and he testified to these so lamely and unfashionably, that the dogs would have barked at him if they could have understood how he was giving in his testimony. In the same case another preacher testified, as he happened to know some important items, and he being the preacher of my own church, I expected something better than he gave. He, too, could not testify to the plain facts which he saw before him, however, but he continually colored them with his peculiar and particular views as a preacher over a congregation. . . . Avoid preachers, then, as witnesses, we somewhat serio-comically say to lawyers - they are not good witnesses — they are bad, very bad, witnesses almost as bad, good brethren, as doctors, and lawyers, and we all well know that they, the doctors and the lawyers, make the very worst of witnesses in any case in any court.

214. N. W. SIBLEY. Criminal Appeal and Evidence. (1908. p. 202.) . . . One very remarkable feature of Courvoisier's trial [ante, No. 144] is the discredit that attached to the police. From the moment they were called in