nesses are protected from arrest while going to the place of trial, while attending there for the purpose of testifying, and on their return,-eundo, morando, et redeundo,-it being the policy of the law as well to encourage and facilitate, as to enforce the attendance of witnesses; 1 Greenl. Ev. § 316; 1 Stark. Ev. 119. Where a non-resident of a state is in attendance on a trial in a circuit court of the United States as a witness in a case therein pending, he is privileged from service of summons in a civil action issued from a state court of such state, and the privilege extends to a reasonable time after the disposition of the cause to enable him to return to his own state; 11 Fed. Rep. 582. See, as to immunity of witnesses from process, 25 Alb. L. J. 424; 53 Vt. 694; s. c. 38 Am. Rep. 713. See ARREST. AS TO THE EXAMINATION OF WITNESSES. In the common-law courts, examinations are had viva voce, in open court, by questions and answers. The same course is now adopted to a great extent in equity and admiralty courts, and others proceeding according to the forms of the civil law. But the regular method of examining in these last-named courts is by deposition taken, in writing out of court; 2 Pars. Marit. Law, 721; 2 Conkl. Adm. Pr. 284; 2 Story, Eq. Jur. § 1527; 3 Greenl. Ev. § 251. On motion, in civil and criminal cases, witnesses will generally be excluded from the court-room while others are undergoing examination in the same case: this, however, is not matter of right, but within the discretion of the court; 1 Stark. Ev. 1733; 1 Greenl. Ev. § 432; 4 C. & P. 585; 7 id. 632; 2 Swan, 237; 3 Wisc. 214. Witnesses are required to testify from their own knowledge and recollection. Yet they are permitted to refresh their memory by reference, while on the stand, to papers written at or very near the time of the transaction in question, even though they were not written by themselves and though the writing in itself would be inadmissible in evidence; 1 Greenl. Ev. $$ 436-440; 20 Pick. 441; 2 C. & P. 75; 10 N. H. 544. WITNESS Being once in attendance, a witness may, in general, be compelled to answer all questions that may legally be put to him. See EVIDENCE. Yet there are exceptions to this rule. He is not compellable where the answer would have a tendency to expose him to a penal liability or any kind of punishment, or to a criminal charge or a forfeiture of his estate. 1 Greenl. Ev. §§ 451, 453; 2 Phill. Ev. 417. See PRIVILEGE. The court, it is said, decides as to the tendency of the answer, and will instruct the witness as to his privilege; 2 Phill. Ev. 417; 4 Cush. 594; 1 Denio, 319. It has been held that the question whether an answer would have this tendency is to be determined by the oath of the witness; 17 Jur. 393. And in point of fact, out of the necessity of the case, it is a matter which the witness may be said practically to decide for himself. The witness may answer if he chooses; and if he do answer after having been advised of his privileges, he must answer in full; and his answer may be used in evidence against him for all purposes; 1 Greenl. Ev. §§ 451, 453; 4 Wend. 252; 11 Cush. 437; 12 Vt. 491; 20 N. H. 540. Whether a witness be compellable to answer to his own degradation or infamy is a point as to which some distinctions are to be taken: a witness cannot refuse to testify simply because his answer would tend to disgrace him; it must be seen to have that effect certainly and directly; 1 Greenl. Ev. § 456. He cannot, it would seem, refuse to give testimony which is material and relevant to the issue, for the reason that it would disgrace him, or expose him to civil liability. A witness is not the sole judge whether a question put to him, if answered, may tend to criminate him. The court must see from the circumstances of the case that there is reasonable ground to apprehend danger to the witness from his being compelled to answer, in order to excuse him. But if the fact once appear, that the witness is in danger, great latitude will be allowed him in judging for himself the effect of any particular question; 26 Ch. Div. 294; 1 The fact that the witness has no recollec-Greenl. Ev. § 454; 1 Whart. Ev. § 537; 1 tion independent of the notes, does not ex- Mood. & M. 108; 4 Wend. 250; 2 Ired. clude his testimony as to the facts stated 346; 15 Cent. L. J. 305. therein, when he testifies that it has been his uniform practice to make true notes of events of the character noted immediately after the occurrence of events, and that the memoranda are parts of such notes; 1 Whart. Ev. $578. The notes need not be written by the witness, if he has verified their accuracy shortly after the event, or if they were made by a clerk under his direction and in his presence; 12 Cush. 98; 37 Me. 246. The fact that memoranda are not made contemporaneously with the event is fatal to their admissibility unless made when the memory is fresh; 1 Whart. Ev. § 523. See REFRESHING MEMORY. But it would appear that he may refuse where the question (being one put on crossexamination) is not relevant and material, and does not in any way affect the credit of the witness; 1 Greenl. Ev. § 458; 3 Camp. 519; 13 N. H. 92; 1 Gray, 108. Whether a witness, when a question is put on the crossexamination which is not relevant and material to the issue, yet goes to affect his credit, will be protected in refusing to answer, simply on the ground that his answer would have a direct and certain effect to disgrace him, is a matter not clearly agreed upon. There is good reason to hold that a witness should be compelled to answer in such a case; 1 Stark. Ev. 144-147; 2 Phillips, Ev. 421-431; 1 C. & P. 85; 2 Swanst. 216; 2 Camp. 637; 3 Yeates, 429. But the whole matter is one that is largely subject to the discretion of the courts; 1 Greenl. Ev. §§ 431, 449. There seems no doubt that a witness is in no case competent to allege his own turpitude, or to give evidence which involves his own infamy or impeaches his most solemn acts, if he be otherwise qualified to testify; Stark. Ev. 1737. See 15 Cent. L. J. 343 et seq., where this subject is fully treated in an article from the Irish Law Times. 238; it is extended to the whole case; 1 Greenl. Ev. § 445. In any view, a witness may be cross-examined as to his examination in chief in all its bearings. Thus a subscribing witness to a will may be cross-examined as to the testator's sanity; 78 Penn. 326. Yet a party is not permitted to introduce his own case by cross-examining the witnesses of his adversary; 1 Greenl. Ev. § 447. It is to be considered, however, that the cross-examination of witnesses is a matter depending much upon the discretion of the court, which will sometimes permit one to cross-examine his own witness, when he appears to be in the interest of the adverse party; 1 Stark. Ev. 132; 1 Greenl. Ev. § 447; 2 Phill. Ev. 403, 406. The course of examination is, first, a direct examination by the party producing the witness; then, if desired, a cross-examination by the adverse party, and a re-examination The right of re-examination extends to all by the party producing; 1 Starkie, Ev. 123, topics upon which a witness has been cross129. As to the direct examination, the gene-examined; but the witness cannot at this ral rule is that leading questions, i.e. such as suggest the answer expected or desired, cannot be put to a witness by the party producing him. But this rule has some reasonable exceptions; 1 Greenl. Ev. § 434. A court of error will not reverse because a leading question was allowed; 87 Penn. 124; 22 N. J. 372; 3 Allen, 466; contra, 99 Ill. 368. See LEADING QUESTION. Leading questions, however, are allowed upon cross-examination. Nor are the rules against questions not relevant and material to the issue always enforced upon cross-examination,- -a stage of the trial at which great latitude in the form and subject-matter of questions is generally allowed, in order that juries may be fully apprized of "the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description." 1 Greenl. Ev. §§ 446, 449; 1 Stark. Ev. 129. stage, without permission of the court, be questioned as to any new facts unconnected with the subject of the cross-examination and not tending to explain it; 1 Stark. Ev. 150; 2 Phill. Ev. 407; 1 Greenl. Ev. § 467. But the court may in all cases permit a witness to be called either for further examination in chief, or for further cross-examination; Steph. Ev. art. 126; and may itself recall a witness at any stage of the proceedings, and examine or cross-examine, at its discretion; 6 C. & P. 653. If new matter is introduced on the re-examination, by permission of the court, the adverse party may further cross-examine upon that matter; Steph. Ev. art. 127. A party cannot impeach the credit of his own witness. But he is sometimes, in cases of hardship, permitted to contradict him by other testimony; 1 Stark. Ev. 147; 1 Greenl. Ev. §§ 442, 443. And a party bona fide surprised at the unexpected testimony of his witness may be permitted to interrogate him, as to previous declarations alleged to have been made by him, inconsistent with his testimony, the object being to prove the witness's recollection, and to lead him, if mistaken, to review what he has said; 1 Whart. Ev. § 549. See infra. Yet witnesses cannot be cross-examined as to collateral and irrelevant matters for the purpose of contradicting them by other evidence; 1 Greenl. Ev. § 449. Their testi- The credit of an adversary's witness may mony as to such matters is always conclusive be impeached by cross-examination, or by against the party questioning. If, by an general evidence affecting his reputation for unfortunate or unskilful question put on veracity (but not by evidence of particular cross-examination, a fact be extracted which facts which otherwise are irrelevant and imneed not have been evidence upon an ex-material), and by evidence of his having said amination in chief, it then becomes evidence or done something before which is inconsisagainst the party so cross-examining." 1 Stark. Ev. 144; 2 Phill. Ev. 398, 429. The right of cross-examination, which is that of treating a person as the witness of the opposing party and examining him by leading questions, is confined by some courts to matters upon which he has already been examined in chief, e. g. by the courts of the United States and of Pennsylvania; 14 Pet. 448; 6 W. & S. 75. By others, e. g. those of England, Massachusetts, and New York; 1 Stark. Ev. 131; 17 Pick. 490; 1 Cow. tent with his evidence at the trial. Also, of course, he may be contradicted by other testimony; Stark. Ev. p. iv. 1753; 1 Greenl. Ev. §§ 401. In some states evidence may be given of a witness's general character; 4 Wend. 257; 2 Dev. 209. See 29 Mich. 173. In order to test a witness's accuracy, veracity, or credibility, he may be cross-examined as to "his relations to either of the parties or the subject matter in dispute; his interest, his motives, his way of life, his associations, his habits, his prejudices, his physical defects Incompetency from interest is done away with and infirmities, his mental idiosyncrasies, if in various specified cases, by special statutes. they affect his capacity; his means of know-witness shall be incompetent on the ground that By 3 & 4 Will. IV. c. 26, it is declared that no ledge and powers of discernment, memory, the verdict or judgment would be admissible in and description-may all be relevant." May's Steph. Ev. art. 129. But it has been said that questions otherwise irrelevant, cannot be asked for the purpose of testing his moral sense; 4 Cush. 593. evidence for or against him; and such verdict or judgment for his party shall not be admissible for him or any one claiming under him; nor shall a verdict or judgment against his party be admissible against him or any one claiming under him. Generally, where proof is to be offered By the statutes 6 & 7 Vict. c. 85 (1843), and that a witness has said or done something in- 14 & 15 Vict. c. 99 (1851), incompetency by reaconsistent with his evidence, a foundation son of being a party, or one in whose behalf a must first be laid and an opportunity for ex-suit is brought or defended, or by reason of But no person planation offered, by asking the witness him- crime or interest, is removed. self whether he has not said or done what it charged with a criminal offence is competent or compellable to give evidence for or against himis proposed to prove, specifying particulars self; nor is a husband or wife of such a one of time, place, and person; 1 Greenl. Ev. competent or compellable to give evidence for or § 462; 2 Phill. Ev. 433; 2 Br. & B. 313; against the other; nor is one compellable to 16 How. 38; 76 Penn. 83; but in other criminate himself; nor does the provision as to cases it has been held that no foundation | parties apply to proceedings instituted on acneed first be laid; 17 Mass. 160; 58 Mo. 35; count of adultery or for breach of promise of 22 Conn. 622; 31 Vt. 443. marriage. By statutes of 15 & 16 Vict. c. 27 (1852), and 16 & 17 Vict. c. 20, similar changes are made in the law of Scotland. a By statute 16 & 17 Vict. c. 83 (1853), the husband or wife of a party, or one in whose behalf suit is brought or defended, is made admissible in all cases and before all tribunals, excepting in criminal proceedings or any proceeding instituted consequence of adultery: but neither is compellable to disclose the conversation of the other during marriage. In England and Massachusetts, by statute, the same course may be taken with a witness on his examination in chief, if the judge is of opinion that he is hostile (see 11 Am. L. Rev. 261) to the party by whom he was called, and permits the question. Apart from statute such evidence has not generally been consid-in ered as admissible; May's Steph. Ev. art. 131; 56 N. Y. 585; 49 Cal. 384; if the sole effect is to discredit; but if the purpose be to show the witness he is in error, it is admissible; 15 Ad. & E. 378; 53 N. Y. 230. Proof of declarations made by a witness out of court in corroboration of the testimony given by him at the trial is, as a general rule, inadmissible. But when a witness is charged with having been actuated by some motive prompting him to a false statement, or that the story is a recent fabrication, it may be shown that he made similar statements before any such motive existed; 68 Ill. 514; 48 Cal. 85; 11 How. 480; May's Steph. Ev. art. 131, n. Evidence of general good reputation may be offered to support a witness, whenever his credit is impeached, either by general evidence affecting his character, or on crossexamination; 1 Stark. Ev. 1757; 1 Greenl. Ev. § 469. By the statute 32 & 33 Vict. c. 68, known as the Evidence Further Amendment Act (1869), the parties to any action for breach of promise of marriage, or to any proceeding instituted in consequence of adultery, excepted in the previous acts, are made competent to give evidence therein. See Taylor, Ev. § 1221. The United States. By the Judiciary Act laws of the several states, excepting where the (Sept. 24, 1789), s. 34, it is provided that the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be the rules of decision in trials at common law in the courts of the United States, in cases where they apply. This is held to include the statute and common law of the several states; Curtis, Coust. s. 30 a; to embrace statutes relating to the law of evidence in civil cases at common law, including those passed subsequently to the Judiciary Act; M'Neil vs. Holbrook, 12 Pet. 84; but not to apply to criminal cases: as to which, the laws of the several states as existing at the time this act was passed are the rules of decision; 12 How. 361. MODIFICATIONS OF THE COMMON LAW. There have been various important modifica- In accordance with this provision, parties and tions of the common law as to witnesses, in others formerly disqualified are allowed to tesrespect to their competency and otherwise, as tify in the district and circuit courts of the well in England as in this country. A gene-states which admit such testimony before their United States, in civil cases at common law, in ral and strong tendency is manifest to do away own courts. with the old objections to the competency of witnesses, and to admit all persons to testify that can furnish to courts and juries any relevant and material evidence,-leaving these to judge of the credibility of the wit By various acts of congress it is now provided that in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried, provided that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to tes tify thereto by the court. In all other respects, the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty; R. S. § 858. A provision is made in a statute passed 24th January, 1857, 11 Stat. at L. 155, as to witnesses testifying before either house of congress or any committee of either,-to the effect that no person shall be held to answer criminally in any court of justice, or be subject to any penalty or forfeiture, for any fact or act touching which he shall be required to testify as aforesaid; and no statement made or paper produced by him as aforesaid shall be competent evidence against him in any criminal proceeding in any court of justice. By the same statute, no person so testifying can refuse to answer, or produce a paper, on the ground that it would tend to disgrace or render him infamous,-a provision, however, which seems to effect no change in the law; R. 8. § 859. But the subject of witnesses before legislative bodies has not come within the scope of this article. Rev. Stat. of Mass. 1882, p. 68; and the evident tendency of modern legislation in this country is towards the admission of women to the bar, decisions in Illinois, Massachusetts, Wisconsin, and District of Columbia, denying this privilege, having been followed recently by statutes extending it to them; 55 Ill. 535; 16 Wall. 130; 131 Mass. 376; 39 Wisc. 232; 48 id. 693; see 21 Am. L. Reg. N. s. 728. The act of February 15, 1879, admits to practice before the supreme court of the United States any woman of good character who shall have been a member of the bar of the highest court of any state or territory, or of the supreme court of the District of Columbia for three years; Suppl. to Rev. Stat. p. 410. In Connecticut women may practise law under a statute of 1875; 21 Am. L. Reg. N. s. 728; 26 Alb. L. J. 333; and in California they may pursue any lawful business or profession; Cons. of Cal. art. 20, § 18. In Illinois, a woman may be a master in chancery; 99 Ill. 501; and in Iowa, a county recorder; Laws of 1880, c. 40; see 25 Alb. L. J. 104. In England a woman may be elected to the office of sexton; 7 Mod. 263; or governor of a workhouse; 2 Ld. Raym. 1014; or overseer; 2 at elections for members of parliament; 38 L. J. C. P. 25; Whart. Lex.; Morse on Citizenship; she may act as postmistress in the United States. See MARRIAGE; NATURALIZATION. In all of the United States and territories, ex-Term, 395; but a woman is not entitled to vote cepting Delaware and New Mexico, statutes to the same general effect and purpose, though differing in their terms from that adopted by congress, have been enacted; Steph. Ev. art. 107; 1 Whart. Ev. §§ 464-472. The Pennsylvania law on the subject may be found in Miller on Evidence. In many states defendants in criminal cases have been allowed by statute to testify in their own behalf. In some states homicide cases are excepted from the provisions of the act. WOLF'S HEAD. In Old English Law. A term applied to outlaws. They who were outlawed in old English law were said to carry a wolf's head; for if caught alive they were to be brought to the king, and if they defended themselves they might be slain and their heads carried to the king, for they were no more to be accounted of than wolves. Termes de la Ley, Woolforthfod. WOMEN. All the females of the human species. All such females who have arrived at the age of puberty. Mulieris appellatione etiam virgo viri potens continetur. Dig. 50. 16. 13. A woman by the fact of marriage invests herself with the nationality of her husband; 13 Op. Att. Gen. 128; 14 id. 402; contra, 2 Knapp, P. C. 364. See DOMICIL. Single or unmarried women have all the civil rights of men: they may, therefore, enter into contracts or engagements; sue and be sued; be trustees or guardians; they may be witnesses, and may for that purpose attest all papers; but they are, generally, not possessed of any political power: hence they cannot vote at any election, nor can they be elected representatives of the people, nor be appointed to the offices of judge, sheriff, constable, or any other office, unless expressly authorized by law. WOODGELD. In Old English Law. To be free from the payment of money for taking of wood in any forest. Co. Litt. 233. a. The same as PUDZELD. WOODMOTE. The court of attachment. Cowel. WOODS. A piece of land on which foresttrees in great number naturally grow. According to Lord Coke, a grant to another of omnes boscos suos, all his woods, will pass not only all his trees, but the land on which they grow. Co. Litt. 4 b. WOOLSACK. The seat of the lord chancellor of England in the house of lords, being a large square bag of wool, without back or arms, covered with red cloth. Webster, Dict. The judges, king's counsel-atlaw, and masters in chancery sit also on woolsacks. The custom arose from wool being a staple of Great Britain from early times. Encyc. Amer. Νο WORDS. "Words for the most part do not represent distinct thoughts, but only the parts into which a thought or conception has been divided by an analytic process. mistake has been productive of more confusion, or has been more frequently taken advantage of for the purposes of deceit and fallacy, than the assumption that each word in a sentence must have a clear and complete meaning, independent of the connection in which it stands. The sentence, the clause, the proposition, are the units of thought, and must be interpreted as units." Lieber, Hermen. 3d ed. 14, n.; see Sir W. Hamilton, 8th sec. vol. iii. p. 133. A woman is a citizen, but is not as such éligible to public office or entitled to vote; 16 How. Words are to be understood in a proper or 287; 21 Wall. 162; nor has she any constitutional right to practise law; 48 Md. 28; 16 Wall. figurative sense, and they are used both ways 36; id. 130; 14 Chic. L. News, 69. In Massa-in law. They are also used in a technical chusetts, she may vote for a school committee; sonse. It is a general rule that contracts and wills shall be construed as the parties under- Every one is required to use words in the Formerly, indeed, in cases of slander, the The following words and phrases have re- A and his associates. 2 N. & McC. 400. A B, agent. 1 Ill. 172. A B (seal), agent for C D. 1 Blackf. 242. A case. 9 Wheat. 738. A piece of land. F. Moore, 702. Abbreviations. 4 C. & P. 51. Abide. 6 N. H. 162. Abortion (as libellous). 17 Ind. 245; 24 Wend. About. 3 B. & Ad. 106; 5 S. & R. 402; 56 Iowa, 400. Abstract (equivalent to copy). 52 Cal. 1. Accident beyond his control. L. R. 3 C. P. 313. Accountable receipt. 101 Mass. 32. Accrued: vested. 2 Disn. 15. WORDS Accumulated surplus. 34 N. J. 479. Across. 10 Me. 390; 5 Pick. 163. Actual cash payment. 103 Mass. 17; 34 Penn. 6 Actual cost. 9 Gray, 226; 2 Mas. 48, 393. Curt. 522; 89 Vt. 111, 498; Phila. 104; 53 Me. 561. Actually occupied. 1 Pick. 387. Ad tunc et ibidem. 1 Ld. Raym. 576. Adjacent. Cooke, 128. Adjacent owner. 16 Hun, 380. Adjoining. 46 Iowa, 256; 31 N. Y. 289; 1 Adjoining land. 103 Mass. 116. Adjoining or appurtenant thereto. 101 Mass. 24. Ads. (on back of affidavit). 6 C. L. J. 196. Adverse party. 13 Hun, 622. Advice As per advice. Chitty, Bills, 185. Affecting. 9 Wheat. 855. Affinity. 13 Jones & S. (N. Y.) 80. 325; 3 Aik. 194; 2 P. Wms. 390'; 7 Ves. 522; 10 After. 7 Ad. & E. 636; 3 Nev. & P. 197; 52 N. Y. 118. After paying debts. 1 Bro. C. C. 34; 1 Ves. Ch. Afterwards, to wit. 1 Chitty, Cr. L. 174. Age of manhood. Cr. & Dix. 426. Aged, impotent, and poor people. 17 Ves. 373. Aggrieved person. 25 N. J. Eq. 503. Agree to let. 102 Mass. 371. Agree to rent or lease. 102 Mass. 394. Agree to sell. 104 Mass. 263. Agreed. 1 Rolle, Abr. 518. Alienate. 11 Barb. 624. debts due to me. |