for not repairing a highway (i): that decision, however, with some others which were founded on it, was afterwards denied to be law (j). And now, in order to remove all doubt whether persons are by law competent to give evidence in cases where they have been formerly held to be disqualified by the liability to pay parochial rates, it is enacted (k), that from and after the passing of this act [3 July, 1840] no person called as a witness on any trial, in any court whatever, may and shall be disabled or prevented from giving evidence by reason only of such person being, as the inhabitant of any parish or township, rated or assessed, or liable to be rated or assessed, to the relief of the poor, or for and towards the maintenance of church, chapel, or highways, or for any other purpose whatever.

The overseer of a parish appealing to sessions, was held not a competent witness to prove the notice of appeal (7). But it has since been enacted (m), that no churchwarden, overseer, or other officer, in or for any parish, township, or union, or any person rated or assessed, or liable to be rated or assessed as aforesaid, shall be disabled or prevented from giving evidence on any trial, appeal, or other proceeding, by reason only of his being a party to such trial, &c., or of his being liable to costs in respect thereof, when he shall be only a nominal party to such trial, &c. and shall be only liable to contribute to such costs in common with others the ratepayers of such parish, &c.

Inhabitants of Counties.]-On an indictment against private persons or corporate bodies for the non-repair of bridges, and the highways thereto belonging, which they are liable to repair, inhabitants of the county are made competent witnesses for the prosecution by statute (n). Before this act they seem to have been thought admissible (o). But in prosecutions against a parish or a county, no inhabitant of either is a competent witness for the defendants, being, in fact, themselves indicted (p).

(j) Doe d. Boultbee v. Adderley, 8 Ad. & E. 502; 3 N. & P. 634; Doe v. Cockell, 4 Ad. & E. 488; 1 M. & Rob. 286.

(k) 3 & 4 V. c. 26, s. 1.

(1) Reg. v. Bath (Recorder), 9 Ad. & E. 871; 1 P. & D. 622, S. C. (H. 1839). See 11 East, 578.

(m) 3 & 4 V. c. 26, s. 2. See R. v. Hardwick, 11 East, 578.

(n) I Ann. stat. 1, c. 18, s. 13. See 15 East, 474; 1 B. & Ald. 66. (0) R. v. Carpenter, 2 Show. 47. (p) Ante, p. 402; 1 Stark. Ev. 2d edit. 141; 1 Phil. Ev. 126.

SECTION XII.

OF CALLING AND EXAMINING WITNESSES.

Witnesses desired to withdraw.]—In cases of importance, it is frequently requested by one party, at the commencement of the trial, that the witnesses 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 deprive a party not implicated in such misconduct, 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 (q), and cannot be required as a 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 (r); 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 cha

racter.

Obligation of Witness to appear.-Calling him on his Recognizance.]-If witnesses, when called, do not appear, they may be called on their recognizances if bound over to give evidence, or on their subpoenas if subpoenaed to attend, with a view to ulterior proceedings. Where the absconding or absence of a material witness for the prosecution can be traced to the acts or connivance of the prisoner or his friends, the practice is that the prisoner is not discharged on his own recognizance only, but two other persons are required to enter into heavy recognizances for his appearance. But in cases where no collu

(q) R. v. Wylde, 6 C. & P. 380; Beaman v. Ellice, 4 C. & P. 585.

(r) Per Littledale, J., Pomeroy v. Baddeley, Ry. & M. N. P. C. 430;

Everett v. Lowdham, 5 C. & P. 91, acc.; but R. v. Webb, 2 Stark. Ev. 2d ed. 1733, contra.

sion between the prisoner or his friends and the absent witness appears, the practice is to discharge him on his own recognizance only (s).

The means of securing the attendance of witnesses has been considered already (t); the expenses of their attendance will be included in the consideration of costs (u). In civil cases, a witness, who has come from a distance, may refuse to be sworn till his expenses are paid or secured; but no witness has a right to make this demand in criminal cases (v). Witnesses who have been regularly subpœnaed 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, 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

(s) Per Patteson, J., in R. v. Beardmore, 7 C. & P. 497. Indictment for felony was not preferred on account of absence of accomplice sworn to be a material witness, and that his attendance at the next assizes might be insured. (See p. 487). (The affidavit was by the committing magistrate; but semb. should have been by the prosecutor or his attorney.) After the grand jury were discharged, the prisoner was discharged on entering into his own recognizance to appear at the next assizes, and answer such charges as should be there put against him, particularly as to stealing two rams.

had applied to the prosecutor to settle the matter without a trial, saying money should not be wanting if it could be settled. The judge remanded the pri soner till the next assizes, unless he entered into recognizance, with two sureties, for appearing there, giving seven days' notice of bail to the magis trates, R. v. Parish, 7 C. & P. 782. Prisoner's recognizance was fixed at 1007. and of his sureties, 501. each.

Where a true bill was found for murder, but a principal witness for the crown was too ill to give testimony, the trial was postponed, but the prisoner was kept in custody till the next assizes, bail being refused, Reg. v. Chapman, 8 C. & P. 558 (Oxford Summer Assizes, 1838). See Reg. v. Owen and others, Stafford Spring Assizes, 1839; and Reg. v. Bowen, Gloucester Spring and Sum mer Assizes, 1840.

(t) Ante, Chap. II.
(u) Post, Chap. XIII.

(v) R. v. Cooke, 1 C. & P. 321; and see ante, Chap. II.

she had appeared, she could not have been examined against her husband (w).

Witnesses 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 (x). In felonies, it is usual for the prosecutor to call every witness whose name is on the back of the bill, in order to their cross-examination by the other side, or by the judge (y).

And if, after the case for the prosecution has closed, there are any witnesses on the back of the indictment whom the counsel has omitted to call, the court, in the exercise of its discretion, may, and generally will, in case of felony, require them to be called into the box, that the prisoner may have the opportunity of cross-examining them (z). In cases of misdemeanour, it is not usual to allow this privilege, but to leave the defendant to take the responsibility of calling such persons as his own witnesses, if he thinks they can depose any thing in his favour; but Alderson, B., has held otherwise in a case of sedition (a).

Privilege of Attornies, &c. not to answer certain Matters.]-In general, a witness may be examined as to all matters which are not privileged from disclosure for the sake of others, or which do not tend to show 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 (b). 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 (c). And even a clerk to the commissioners of

(w) Chelmsford Assizes, 1817, Dickenson's MSS., 3 Dick. Pract. Expos.

935.

(r) Doe v. Roe, 2 Campb. 280. (y) R. v. Simmonds, 1 C. & P. 84; R. v. Whitehead, id. 322, n.

(2) But this is not of course even in felony, so as to entitle the prisoner to

call on the prosecutor's counsel to do so,
R. v. Vincent and others, 9 C. & P. 91.
(a) R. v. Vincent and others.

(b) R. v. The Duchess of Kingston, 20 How. St. Tr. 612.

(c) R. v. Sparkes, cited in Du Barre v. Livette, Peake, N. P. C. 78.

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, for the act must be taken to have implicitly excepted evidence given by a witness in a court of justice under a subpoena (d). 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 (e); to an agent of an attorney (f); to an interpreter between an attorney and client (g); and to a barrister's clerk, if it is proposed to examine him as to the time when a particular retainer was delivered for his master (h). 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 (i).

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 (j); or to prove matters which he has learned since his employment ceased (k). This privilege is not confined to matters communicated in reference to a suit or prosecution anticipated or pending, but is extended to all matters communicated to him in the ordinary scope of his professional employment as an attorney (1). The rule is the same if he committed them to writing in the course of such employment (m). In all cases, the privilege is not that of the witness,

See

(d) See - v. Birrell, 3 Campb. 337, per Lord Ellenborough, C. J. as to grand juror, Sykes v. Dunbar, 2 Sel. N. P. 1066; Watson's case, 24 How. St. Tr. 107, cited 1 Stark. Ev. 2d ed. 160.

(e) Taylor v. Forster, 2 Car. & P. N. P. C. 195.

(f) Parkins v. Hawkshaw, 2 Stark. N. P. C. 239.

(g) Du Barre v. Livette, Peake, N. P. C. 78.

(h) Foote v. Hayne, Ry. & M. N. P. C. 165.

(i) Fountain v. Young, 6 Esp. R. 113.

(i) Doe v. Andrews, Cowp. 846. (k) Cuts v. Pickering, 1 Ventr. 197; Cobden v. Kenrick, 4 T. R. 431.

(1) See Lord Ch. Brougham's judg ment in Greenough v. Gaskell, 1 Myl. & Keen, 98, after consulting Tindal, C. J., Lord Lyndhurst, C. B., and Parke, B. See by Parke, J., 4 B. & Ad. 876. In favour of the extension, see Cromack v. Heathcote, 2 Br. & B. 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, Ry. & M. N. P. C. 34; Clark v. Clark, 1 M. & Rob. 3; R. v. Withers, 2 Campb. 578. See a case where facts came to the witness's knowledge while acting solicitor, though not communicated to him by his client, Desborough v. Rawlins, 3 Mylne & Cr.

515.

(m) Ibid.