testimony. The objection of interest, as before remarked, proceeds on the presumption that it may bias the mind of the witness; but this presumption is taken away by proof of his having done all in his power to get rid of the interest.2 It has even been held, that where the defendant has suffered an interested witness to be examined, on the undertaking of the plaintiff's attorney to execute a release to him after the trial, which, after a verdict for the plaintiff, he refused to execute, this was no sufficient cause for a new trial; for the witness had a remedy on the undertaking. But the witness, in such cases, will not be permitted to proceed with his testimony, even while the attorney is preparing or amending the release, without the consent of the adverse party. 3 § 430. There are other modes, besides a release, in which the competency of an interested witness may be restored. Some of these modes, to be adopted by the witness himself, have already been adverted to;5 namely, where he has assigned his own interest, or done all in his power to assign it; or, where he refuses to accept a release tendered to him by another. So, where, being a legatec or distributee, he has been fully paid. An indorser is made a competent witness for the indorsee, by striking off his name from the back of the note or bill; but if the bill is drawn in sets, it must appear that his name is erased from each one of the set, even though one of them is missing and is supposed to be lost; for it may be in the hands of a bona fide holder. A guarantor, also, is rendered a competent witness for the creditor, by delivering up the letter of guaranty, with permission to destroy it.8 And this may be done by the attorney of the party, his relation as such and the possession of the paper being sufficient to justify a presumption of authority for that purpose. The bail or surety of another may be rendered a competent witness for him, as we have already seen, by substituting another person in his stead; which, where the stipulation is entered into in any judicial proceeding, as in the case of bail and the like, the court will order 1 Seymour v. Strong, 4 Hill, R. 225. Whether the belief of the witness as to his interest, or the impression under which he testifies, can go farther than to affect the credibility of his testimony, quære; and see supra, §§ 387, 388, 419. 2 Goodtitle v. Welford, 1 Doug. 139, 141, per Ashhurst, J. Hemming v. English, 1 Cr. M. & R. 568; 5 Tyrwh. 185, s. c. Doty v. Wilson, 14 Johns. 378. 5 Supra, § 419. & Clarke v. Gannon, Ry. & M. 31; Gebhardt v. Shindle, 15 S. & R. 235. 7 Steinmetz v. Currie, 1 Dall. 269. 8 Merchants' Bank v. Spicer, 6 Wend. 9 Ibid; Watson v. McLaren, 19 Wend. 543. 557. VOL I 40 upon motion. The same may be done by depositing in court a sufficient sum of money; or, in the case of bail, by a surrender of the body of the principal.1 So, where the liability, which would have rendered the witness incompetent, is discharged by the operation of law; as, for example, by the bankrupt or the insolvent laws, or by the statute of limitations.2 Where, in trespass, several justifications are set up in bar, one of which is a prescriptive or customary right in all the inhabitants of a certain place, one of those inhabitants may be rendered a competent witness for the defendant, by his waving that branch of the defence. In trover by a bailee, he may render the bailor a competent witness for him, by agreeing to allow him, at all events, a certain sum for the goods lost. The assignee of a chose in action, who, having commenced a suit upon it in the name of the assignor, has afterwards sold and transferred his own interest to a stranger, is thereby rendered a competent witness for the plaintiff.5 But the interest which an informer has in a statute penalty is held not assignable for that purpose. So, the interest of a legatee being assigned, he is thereby rendered competent to prove the will; though the payment is only secured to him by bond which is not yet due." So, a stockholder in any money-corporation may be rendered a competent witness for the corporation, by a transfer of his stock, either to the company or to a stranger; even though he intends to repossess it, and has assigned it merely to qualify himself to testify; provided there is no agreement between him and the assignee or purchaser for a reconveyance. Where a witness was liable to the plaintiff's attorney for the costs, and the attorney had prepared a release, in order to restore his competency in case it should be questioned, but no objection being made to the witness, 1 Supra, § 392, note (1); Bailey v. Hole, 3 C. & P. 560; 1 Mood. & M. 289, s. c.; Leggett v. Boyd, 3 Wend. 376; Tompkins v. Curtis, 3 Cowen, 251; Grey v. Young, 1 Harper, 38; Allen v. Hawks, 13 Pick. 79; Beckley v. Freeman, 15 Pick. 468; Pearcey v. Fleming, 5 C. & P. 503; Lees . Smith, 1 M. & Rob. 329; Comstock v. Paie, 3 Rob. Louis. R. 440; Fraser v. Harding, 3 Kerr, 94. 2 Murray . Judah, 6 Cowen, 484; Ludlow v. Union Ins. Co. 2 S. & R. 119; United States v. Smith, 4 Day, 121; Quimby v. Wroth, 3 H. & J. 249; Murray v. Marsh, 2 Hayw. 200. Prewitt v. Tilly, 1 C. & P. 140. 7 Mellroy v. McIlroy, 1 Rawle, 423. 8 Gilbert v. Manchester Iron Co. 11 Wend. 627; Utica Ins. Co. v. Cadwell, 3 Wend. 296; Stall v. The Catskill Bank, 18 Wend. 466; Bank of Utica, v. Smalley, 2 Cowen, 770; Bell v. Hull, &c, Railway Co. 6 M. & W. 701; Illinois Ins. Co. v. Marseilles Co. 1 Gilm. 236; Union Bank v. Owen, 4 Humph. 388. he was examined for the plaintiff without a release, this was considered as a gross imposition upon the court; and in a subsequent action by the attorney against the witness, for his costs, he was nonsuited. These examples are deemed sufficient for the purpose of illustrating this method of restoring the competency of a witness disqualified by interest. Williams v. Goodwin, 11 Moore, 842. CHAPTER II. OF THE EXAMINATION OF WITNESSES. [* § 431. The mode of examination in discretion of judge. 432. Witnesses may be examined apart from each other. 433. Party calling first examines; the other then cross-examines. 434. Leading questions not allowed on direct examination. Facts, and not opin ions. 434a. Summary of some of the late cases. 435. Leading questions allowed on direct examination, in discretion of the court. 436. Witness may refresh his memory by writings. 437. Different circumstances under which such writings resorted to. 438. Such writings should be nearly contemporaneous with the transaction. 439. Papers may be read over to blind witness, &c. 440. Upon what subjects witnesses may express opinions. 440a. Analysis of recent cases upon the point. 4406. A prejudiced witness more reliable as to facts than opinions. 441. The opinions of witnesses not admissible upon general questions of moral duty and conduct, but as to duty in particular business. 442. Party not allowed to discredit his own witness. 443. But he may prove the fact otherwise. 444. How far it is competent to discredit the party's own witness by proving contradictory statements made elsewhere. 444a. You may inquire of the witness in respect to them, but cannot contradict him by his own statements. 445. Where a witness gives any testimony, he may be cross-examined by the other party as to the whole case. 446. Cross-examination a valuable test of witness's fidelity. 447. This right extends to the whole trial, even where the party recalls his adversary's witness. 448. Testimony restricted to the issue. 449. On cross-examination a wider range allowed. 450. State of witness's feeling towards party a material inquiry. 451. Not compellable to criminate himself. 451a. Statement of the rule according to recent cases. 452. Not excused from testifying merely against his own interest. 453. Witness not obliged to give testimony exposing him to forfeiture of estate. 454. Not excused from giving testimony material to issue because it will tend to degrade witness. 455, 456. Witness may be compelled to give answer, in all cases, which merely tends to disgrace. 457. Witness cannot be asked if he has suffered punishment. § 458. Questions tending merely to disgrace witness, and not to affect credibility, clearly inadmissible. 459. How far witness may be asked questions tending to lower his credit. 460. Counsel cannot insist upon asking questions which witness is not obliged to answer. 461. May be impeached by general testimony of bad character. 462. So also by showing that he has made contradictory statements. 463. Cannot be examined as to contents of letter not in evidence. 464. Loss of paper proved before witness cross-examined as to contents. 465. How far witness may be asked if he has given a different account, either orally or in writing. 466. When the party may cross-examine as to paper. 467. Re-examination only extends to subject-matter of cross-examination. 468. And this rule obtains where the cross-examination is upon matters not material to the issue. 469. Witness attempted to be discredited on cross-examination may be sustained by general proof of good character.] § 431. HAVING thus treated of the means of procuring the attendance of witnesses, and of their competency, we come now to consider the manner in which they are to be examined. And here, in the first place, it is to be observed, that the subject lies chiefly in the discretion of the judge, before whom the cause is tried, it being from its very nature susceptible of but few positive and stringent rules. The great object is to elicit the truth from the witness; but the character, intelligence, moral courage, bias, memory, and other circumstances of witnesses are so various, as to require almost equal variety in the manner of interrogation, and the degree of its intensity, to attain that end. This manner and degree, therefore, as well as the other circumstances of the trial, must necessarily be left somewhat at large, subject to the few general rules which we shall proceed to state; remarking only, that wherever any matter is left to the discretion of one judge, his decision is not subject to be reversed or revised by another. § 432. If the judge deems it essential to the discovery of truth, that the witnesses should be examined out of the hearing of each other, he will so order it. This order, upon the motion or suggestion of either party, is rarely withheld; but, by the weight of authority, the party does not seem entitled to it as a matter of right. The course in such cases is either to require the names of In Rex v. Cooke, 13 Howell, St. Tr. 348, it was declared by Lord C. J. Treby to be grantable of favor only, at the discretion of the court, and this opinion was followed by Ld. C. J. Holt, in Rex v. Vaughan, Id. 494, and by Sir Michael |