occasions made statements, similar to what he has testified in the cause, is not admissible;1 unless where a design to misrepresent is charged upon the witness, in consequence of his relation to the party, or to the cause; in which case, it seems, it may be proper to show that he made a similar statement before that relation existed.2 So, if the character of a deceased attesting witness to a deed or will is impeached on the ground of fraud, evidence of his general good character is admissible. But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to character.* [* § 469a. There is considerable conflict in the decisions, in v. Reed, 4 Gray, 574. It is admissible to ask a witness if he has not said that he had testified for the defendant, but if called again, he thought he should testify for the plaintiff, and if he does not recollect making such a statement to prove that he did so. Chapman v. Coffin, 14 Gray, 454.] [* And it seems that the mere attempt to impeach a witness, by inquiring of another witness what was his character for truth, will justify general evidence of his good character, notwithstanding the witness inquired of said his character was good. Commonwealth v. Ingraham, 7 Gray, 46. But in Brown v. Mooers, 6 Gray, 451, it was held that where the character of the witness is only attempted to be impeached by proving contradictory statements made by him out of court, he could not be sustained by general evidence of good character; and the court declare that the text in the preceding section of our author "is not law," an inference rather too obvious to require much publication, provided the decision of the court is law. The reason of the thing is certainly in favor of Mr. Greenleaf's doctrine. And how the court in Massachusetts can expect to reconcile the spirit and principle of the two cases cited by us in this note will be for them to consider. We would not like to say, they are neither of them sound law; but it seems very obvious to us both cannot be maintained upon any sound view of the principle in volved in the rule. The case of Brown v. Mooers is certainly too narrow in its restrictions. For if the witness is clearly shown to have made contradictory statements about the matter, he is surely far more effectually impeached than if a witness were asked for his character for truth, and declared it to be good. In the latter case it would seem no ground had been laid for the introduction of general evi dence of good character, more than if the counsel had inquired of the witness himself if he had ever been impeached in court, and he had replied in the negative. But in the former case it is obvious the witness's character for truth is seriously damaged. In other states, general evidence of good character is received; and we must still maintain that our author is fairly warranted in saying that it should be. State v. Rowe, 12 Vt. 93; and cases cited before in this note.] 1 Bull. N. P. 294. See Cooke v. Curtis, 6 H. & J. 93, contra; [Smith v. Morgan, 38 Maine, 468; Smith v. Stickney, 17 Barb. 489. In Deshon v. Merchants' Ins. Co. 11 Met. 199, 209, it was laid down as a clear rule of law that a witness cannot be allowed to state, on the direct examination, with the view of strengthening his testimony, that he communicated to third persons, at prior times, the same or other particular facts. In Commonwealth v. Wilson, 1 Gray, 340, where in re-examination similar testimony was offered for a like purpose, Shaw, C. J., said, "The rule excluding such testimony is confined to the examination in chief, and does not apply to a case where the other party has sought to impeach the witness on crossexamination. The purpose of the crossexamination in this particular having been to impeach the witness, the question may be put." See also Boston & Worc. R. R. Co. v. Dana, 1 Gray, 83, 103.] 2 2 Phil. Evid. 445, 446. 8 Doe v. Stephenson, 3 Esp. 284; 4 Esp. 50, s. c., cited and approved by Lord Ellenborough, in The Bishop of Durham v. Beaumont, 1 Campb. 207-210, and in Provis v. Reed, 5 Bing. 135. Bishop of Durham v. Beaumont, 1 Campb. 207; 1 Stark. Evid. 186; Russell v. Coffin, 8 Pick. 143, 154; Starks v. The People, 5 Denio. 106. regard to the order of proof, and the course of trial, in the dif ferent states. In some of the states, the party is only required to make a primâ facie case in the opening, and may reserve confirmatory proof in support of the very points made in the opening, till he finds upon what points his opening case is attacked, and then fortify it upon those points. And, in some of the states, it is understood, that this process of making and answering the plaintiff's case is allowed to be repeated an indefinite number of times. But, at common law, the plaintiff puts in his whole evidence upon every point which he opens, and the defendant then puts in his entire case; and the plaintiff's reply is limited to new points, first opened by defendant. And the court in banc, in passing upon the sufficiency of plaintiff's case, cannot look at the defendant's evidence. And it is held to rest in the discretion of the judge, subject to review in banc, at what stage in the trial evidence may be produced.*] 1 [* Clayes v. Ferris, 10 Vt. 112. But, in this state, the defendant must put in all his evidence in the first instance, and the plaintiff in his reply is confined to fortifying those points in his case which are attacked by defendant. 2 This is the case in New Hampshire, where, if one party give irrelevant or in competent evidence, this will entitle the other to go into evidence in reply to it. Furbush v. Goodwin, 5 Foster, 425. But in general the rule is otherwise. Mitchell v. Sellman, 5 Md. 376; Shedden v. Pat rick, 2 Sw. & Tr. 170. 8 Rawlings v. Chandler, 9 Exch. 687. Wright v. Willcox, 9 C. B. 650 | CHAPTER IV. OF WRITTEN EVIDENCE. [* § 470. Writings, viewed as evidence, are public and private. 475. Books of public offices may be inspected by those interested. 477. Rule to inspect and take copies of books and writings. 478. When no action pending, may be obtained by mandamus, &c. 479. Proof of public acts not judicial. 480. Legislative acts proved by official printed copies. 481. Courts do not take judicial notice of private acts. 482. Journals of legislature proved by sworn or official printed copies. 483. Official registers admissible as original evidence. 484. May be proved by duly authenticated copies. 485. Must be contemporaneous and from proper repository. 486. Proof of foreign laws addressed to the court. Denied. 487. Foreign written law proved by authenticated copy, or by proclamation. 488. Sworn copy sufficient. Unwritten law proved by experts. 488a. How far courts will presume the existence of same law in foreign country. 489. Acts of state legislature proved by official printed copy, or by state seal. 490. Courts of the United States take notice of state statutes, and the state courts also of acts of congress. 491. Public documents, evidence of facts recited in them. 492. Official gazette, proof of official acts there published. 493. To what extent official registers evidence. 494. The register of a ship has no official character. 495. Log-book of ship not evidence unless made so by statute. 496. Character of official registry established by custom as well as statute. 497. Books of history admissible to prove general facts of ancient date. 498. Certificates not admissible as evidence unless made so by statute.] § 470. WRITINGS are divisible into two classes, namely, PUBLIC and PRIVATE. The former consists of the acts of public functionaries, in the executive, legislative, and judicial departments of government, including, under this general head, the transactions which official persons are required to enter in books or registers, in the course of their public duties, and which occur within the circle of their own personal knowledge and observation. To the same head may be referred the consideration of documentary evidence of the acts of state, the laws and judgments of courts of foreign governments. Public writings are susceptible of another division, they being either (1.) judicial, or (2.) not judicial; and with respect to the means and mode of proving them, they may be classed into, (1.) those which are of record, and (2.) those which are not of record. It is proposed to treat, first, of public documents, and secondly, of those writings which are private. And in regard to both classes, our inquiries will be directed, (1.) to the mode of obtaining an inspection of such documents and writings; (2.) to the method of proving them; and, (3.) to their admissibility and effect. § 471. And first, in regard to the INSPECTION OF PUBLIC DOCUMENTS, it has been admitted, from a very early period, that the inspection and exemplification of the records of the king's courts is the common right of the subject. This right was extended, by an ancient statute,1 to cases where the subject was concerned against the king. The exercise of this right does not appear to have been restrained, until the reign of Charles II., when, in consequence of the frequency of actions for malicious prosecution, which could not be supported without a copy of the record, the judges made an order for the regulation of the sessions at the Old Bailey prohibiting the granting of any copy of an indictment for felony, without a special order, upon motion in open court, at the general jail delivery. This order, it is to be observed, relates only to indictments for felony. In cases of misdemeanor, the right to a copy has never been questioned. 1 46 Ed. III., in the Preface to 3 Coke's Rep. p. iv. Orders and Directions, 16 Car. II., prefixed to Sir J. Kelyng's Reports, Order vii. With respect to the general records of the realm, in such cases, copies are obtained upon application to the attorney-general. Leggatt v. Tollervey, 14 East, 306. But if the copy were obtained without order, it will not, on that account, be rejected. Ibid.; Jordan v. Lewis, Id. 395, note (b); Caddy v. Barlow, 1 M. & Ry. 275. But Lord Chief Justice Willes, in Rex v. Brangam, 1 Leach, Cr. Cas. 32, in the case of a prosecution for robbery, evidently vexa But in the United States, no tious, refused an application for a copy of the record, on the ground that no order was necessary; declaring, that "by the laws of the realm every prisoner, upon his acquittal, had an undoubted right and title to a copy of the record of such acquittal, for any use he might think fit to make of it; and that, after a demand of it had been made, the proper officer might be punished for refusing to make it out." A strong doubt of the legality of the order of 16 Car. II., was also raised in Browne v. Cumming, 10 B. & C. 70 8 Morrison v. Kelley, 1 W. Bl. 385. regulation of this kind is known to have been expressly made; and any limitation of the right to a copy of a judicial record or paper, when applied for by any person having an interest in it, would probably be deemed repugnant to the genius of American institutions.1 § 472. Where writs, or other papers in a cause, are officially in the custody of an officer of the court, he may be compelled by a rule of court, to allow an inspection of them, even though it be to furnish evidence in a civil action against himself. Thus, a rule was granted against the marshal of the King's Bench prison, in an action against him for an escape of one arrested upon mesne process, to permit the plaintiff's attorney to inspect the writ by which he was committed to his custody.2 § 473. In regard to the records of inferior tribunals, the right of inspection is more limited. As all persons have not necessarily an interest in them, it is not necessary that they should be open to the inspection of all, without distinction. The party, therefore, who wishes to inspect the proceedings of any of those courts, should first apply to that court, showing that he has some interest in the document, and that he requires it for a proper purpose. If it should be refused, the court of chancery, upon affidavit of the fact, may at any time send, by a writ of certiorari, either for the record itself, or an exemplification. The King's Bench in England, and the Supreme courts of common law in America, have the same power by mandamus; and this whether an action be pending or not.5 § 474. There are other records which partake both of a public and private character, and are treated as the one or the other, according to the relation in which the applicant stands to them. Thus, the books of a corporation are public with respect to its members, but private with respect to strangers. In regard to its members, a rule for inspection of the writings of the corporation will be 1 Stone v. Crocker, 24 Pick. 88, per Morton, J. The only case, known to the author, in which the English rule was acted on, is that of The People v. Pollyon, 2 Caines, 202, in which a copy was moved for and granted. 2 Fox v. Jones, 7 B. & C. 732. If he has no legal interest in the record, the court may refuse the application. Powell v. Bradbury, 4 M. G. & Sc. 541; infra, § 559 4 Gresley on Evid. pp. 115, 116; Wilson v. Rogers, 2 Stra. 1242; Rex v. Smith, 1 Stra. 126; Rex v. Tower, 4 M. & S. 162; Herbert v. Ashburner, 1 Wils. 297; Rex v. Allgood, 7 T. R. 746; Rex v. Sheriff of Chester, 1 Chitty, R. 479. 5 Rex v. Lucas, 10 East, 235, 236, per Lord Ellenborough. • Gresley on Evid. 116. |