"Also (m) the deed ought not only, as hath been said, to approve itself, but it ought to be proved by others, sc. by witnesses, that it was sealed and delivered; for otherwise although the fabric and composition of the deed be legal, yet without the other it is of no effect."

§ 460. Although one object of profert may have been to enable the court to judge by inspection of the sufficiency of the deed relied on, yet Serjeant Stephen, no mean authority on such matters, questions whether the practice originated in this view, and thinks that the producing the deed was only a compliance with the general rule of pleading which requires all affirmative pleadings to be supported by an offer of some mode of proof (n). In ancient times, when a cause turned on a deed, the witnesses to the deed acted in some degree as a jury, and were brought in by a process analogous to a jury process (o); and the object of laying the deed before the court was to enable them to see whether it was sufficient in law if proved, and if so, to issue process to bring in the witnesses. In confirmation of this it is to be observed that, at least in general, no profert was required of a document not falling within the technical definition of a deed (p); however completely an action or defence might rest on it, as an agreement not under seal (q); or however indispensable its production at the trial, as a bill of exchange (r). And even of a deed no profert was required unless the party pleading claimed or justified under it, nor even then unless he relied on its direct and intrinsic operation(s).

§ 461. But whatever value may be attributed to the

(m) 10 Co. 93 a.

(n) Steph. Plead. 485; and Append. note 68, 5th Ed.

(0) Co. Litt. 6 b; Bro. Abr. tit. Testmoignes.

(p) Steph. Plead. 483, 5th Ed. (9) Steph. in loc. cit.

(r) See Ramuz v. Crowe, 1 Exch. 167.

(s) Steph. Plead. 484, 5th Ed.

analogy from the theory of profert, there are other analogies much more to the purpose the other way. All other forms of derivative and remote evidence; such as hearsay, res inter alios gesta, opinion evidence, and the like, may, in most instances at least, be used to test the credit of witnesses; and even the judges in Queen Caroline's case concede that a witness may be asked whether he ever made a verbal representation inconsistent with the evidence he has already given. Now, as it is indisputable that if that verbal representation were made to a third party it would not be evidence in chief, why is it evidence on cross-examination? The answer is obvious-that if the witness were untruly to deny having given a certain account of the transaction to which he has deposed, it would shew a defect either in his memory or in his honesty; but does not this apply à fortiori to a statement reduced to writing, seeing that a man is certainly less likely to forget what he has taken the pains to write down? Then, however, it is said, a portion of the writing might be suppressed, so that the court and jury would not see the whole of it; but this argument would exclude the verbal representation; for this latter might have been made in a conversation part of which is suppressed, and the whole of which taken together, (the rest, be it observed, can be extracted on re-examination, or given by the witness himself in the way of explanation), would give a wholly different colour to the matter. By requiring the document containing the supposed contradiction to be put into the hands of the witness in the first instance the great principle of cross-examination is sacrificed at once. When a man gives certain evidence, and the object is to shew that he has on a former occasion given some different account, common sense tells us that the way of bringing about a contradiction is to ask him if he has ever done so; in order that he may have no intimation of the time, place, or circumstances alluded to, or consequently of what

means are available to contradict and discredit him. Yet, according to the received practice, if the witness has taken the precaution to reduce his previous statement to writing, the writing must be put into his hands, accompanied by the question whether he wrote it; thus giving him full warning of the danger he has to avoid, and full opportunity of shaping his answers to meet it.

§ 462. The principles laid down by the judges in Queen's Caroline case have been rather extensively applied. After the passing of the 6 & 7 Will. IV. c. 114, which allows prisoners on trial for felony to make their full defence by counsel; twelve of the judges having assembled to choose the spring circuits of 1837, agreed to the following, among other resolutions (t) :

"1. Where a witness for the crown has made a deposition before a magistrate, he cannot, upon his crossexamination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and such deposition must be read as part of the evidence of the cross-examining counsel.

"2. After such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness as to any supposed contradiction or variance between the testimony of the witness in court and his former deposition; after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has addressed the jury, will be entitled to the reply. And in case the counsel for the prisoner comments on any supposed variance or contradiction, without having read the deposition, the court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it.

(t) 7 C. & P. 676.

Practice since

those resolutions.

"3. The witness cannot, in cross-examination, be compelled to answer, whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event the counsel for the prisoner may proceed with his cross-examination : and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of his testimony; or if the witness denies that he made such a statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply."

§ 463. Although these resolutions are not binding per se, not being the decision of a court in a judicial proceeding, they have been followed in practice ever since. And in order to prevent any evasion of them, it has been held, that a witness cannot be asked on cross-examination if he ever made a statement inconsistent with his evidence in chief, but that the question must be guarded with the saving clause that the party interrogating is not referring to what may have taken place before the committing magistrate (u), or coroner (x), as the case may be. The anticipating possible objections has been truly designated by C. J. Hale, "leaping before one comes to the stile (y)." Suppose the witness, instead of making the inconsistent statement on his examination before the committing magistrate or coroner, had made it by deed, or matter of record, or even by letter, his parol account of it would, according to Queen Caroline's

(u) R. v. Shellard, 9 C. & P. 277.

(x) R. v. Holden, 8 C. & P. 606. (y) 1 Ventr. 217.

case, be inadmissible; still it has not yet been thought necessary to require the cross-examining counsel to negative these various hypotheses by the mode of putting his questions. A question has also arisen whether, although a witness cannot be asked what he said before the committing magistrate unless his deposition be either put in evidence, or it is proved that the testimony given by him on that occasion was not taken down in writing, if the witness has signed the deposition so made by him, a cross-examining counsel at the trial may put it into his hand as a memorandum to refresh his memory, and ask him if after having read it he still persists in the evidence given by him in chief. This course was allowed in several instances (z), but was disallowed by some judges (a), and disapproved by others (b), and the notion has been finally overruled by the Court of Criminal Appeal (c).

Evans.

§ 464. Since the former edition of this work the im- Macdonnell v. portant case of Macdonnell v. Evans (d) came before the Court of Common Pleas; and the Commissioners for inquiring into the Process, Practice, and System of Pleading in the superior Courts of Common Law have published a valuable Report, in which they advert to the subject under consideration. In that case a witness

called on the part of the plaintiff, being asked on crossexamination by the defendant's counsel, who produced a letter purporting to be written by the witness,-" Did you not write that letter in answer to a letter charging you

(z) R. v. Edwards, 8 C. & P. 31; R. v. Tooker, and R. v. Wilson, Salop Sp. Ass. 1849, ex relatione; R. v. Newton, 2 Ph. Ev. 516, 10th Ed.; R. v. Barnet, 4 Cox, Cr. Ca. 269.

(a) Per Patteson, J., in R. v. Newton, 15 L. T. 26; per Parke, B., in R. v. Lang, Kingst. Sp.

Ass. 14 Vict. MS.

(b) See R. v. Matthews, 4 Cox, Cr. Cas. 93.

(c) R. v. Ford, 2 Den. C. C. 245; 5 Cox, Cr. C. 184; 3 Car. & K. 113.

(d) 11 C. B. 930; 21 L. J. C. P. 141; 16 Jurist, 103.