heard fresh evidence of insanity in the family which ought to have been called at the trial, and from an expert-the circumstances, apparently, being exceptional. Lumb, ib. 264, 1912.

Professional works] So, also, skilled witnesses may refresh their memory by referring to professional treatises, although such treatises are not admissible in evidence: Sussex Peerage, below; T. s. 1423; and at all events a medical witness may be asked whether he has not in the course of his reading become acquainted with such and such results of scientific experience, and he may state that his judgment is founded in part on what he has read, though the books themselves could not be read. Collier v. Simpson, 5 C. & P. 74, 1831. Foreign law-books were formerly read to prove the foreign law; e.g. in Picton, 1806; but see below.

Experts-foreign law] In proving the laws, written or unwritten, of foreign countries, competent witnesses are admissible. The law of a foreign state must be proved by the parol evidence of witnesses possessing professional skill: De Bode's case, 8 Q. B. at 246, 1844, overruling Clegg v. Levy, 3 Camp. 166, 1812, which permits mere authenticated copies of foreign laws to be read; Sussex Peerage, 11 Cl. & Fin. at 114-7; 8 Jur. 793; 65 R. R. 11, 1844; Nelson v. L. Bridport, 8 Beav. 527, 1845; T. s. 1423. But in Arton, affidavit evidence of French law by a French advocate was received: 1896, 1 Q. B. at 511, note; per Phillimore J., Govr. of Brixton Prison, ex parte Percival, 21 Cox C. C. at 397, 1907: fugitive offender; Phips. 367-8. Thus, in abduction, a Scotch barrister was examined whether the marriage, as proved by a witness, would be a valid marriage according to the law of Scotland. Wakefield, 1827. See also Lindo v. Belisario, 1 Hag. Cons. 216, 1795; Dalrymple v. Dalrymple, 2 Hag. Cons. at 59, 1811; Middleton v. Janverin, ib. 437, 1802; cf. Lacon v. Higgins; Povey, 1852-woman giving evidence of practice in Scotland; Cocks v. Purday, 2 C. & K. 269, 1846. Foreign unwritten laws, customs, and usages, may be proved, and, indeed, must ordinarily be proved, by parol evidence. The usual course is to make such proof by the testimony of competent witnesses instructed in the laws, customs, and usages, under oath.' Story, on the Conflict of Laws, s. 642, 8th ed. (Boston, 1883), referring here to English law; so T. above, to the same effect, who by 'customs or usages must include legal ones, for a foreign custom or usage is a matter of fact (just as . . . in this country), and therefore can be proved by any witness who is acquainted with the fact.' T. s. 1425, citing cases. See Documentary Evidence, and 24-5 V. 11; and for marriage, under Bigamy.

For the procedure, see United States of America v. McRae, L. R. 3 Ch. Ap. at 86, 1867, per L. Chelmsford C.

Laws or customs of savage states] See In re Bethell, 38 Ch. D. 220, 1888, where an inquiry was directed into the marriage customs of the Baralongs, and the depositions of a chief, taken in Bechuanaland, which, with other facts, was certified by the chief clerk. So of the same question in New Zealand in 1829: Armitage v. Armitage, L. R. 3 Eq. 343, 1866.

Other law] See Documentary Evidence.

Its nature] Every such question as is admissible the witness is bound to answer, unless he can show that he has the privilege of silence by reason of some peculiarity in his situation. Similarly of the production of documents. Phips. 186, 200.

The privilege arises in three ways: i. on the ground that to answer would expose him to consequences so injurious that he ought to be allowed to decline; ii. that to answer would be a breach of confidence, which he ought not to be forced to commit; iii. that to compel him to answer would be against public policy. 'The privilege may be that either of the witness himself or of another whom he represents'. in the latter case he will not be allowed, without the principal's consent, to disclose the protected matter.' Phips. 186.

The difference between privilege and incompetency is that an incompetent witness ought not to be examined, and if he is examined inadvertently, his testimony is not legal evidence, i.e. the verdict may be set aside; but a privileged witness may always be examined, and his testimony is perfectly legal if the privilege be not insisted on.

If a witness be compelled to answer in cases where he claims and ought to have been allowed his privilege, that is not a ground for reversing a conviction on complaint of the defendant, as the only person injured is the witness. Kinglake, 11 Cox C. C. 499, 1870.

Civil consequences] It was always considered that a witness is privileged from giving an answer which might directly subject him to forfeiture of estate. Forfeiture is now abolished except on outlawry by 33-4 V. 23, 1. The old rule is recognised and the existing rule is stated in 46 G. 3, 37, by which it was declared and enacted that a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature whatsoever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his Majesty or of any other person or persons.' So, generally of the production of documents; T. s. 1464.

In a previous edition of this work a doubt was expressed whether the exception of 'penalty' extends to penalties to be recovered by a common informer, or otherwise in a civil manner,' but no other authority seems to share the doubt. T. s. 1453. Among the consequences to be apprehended need not be included

Actions for libel or slander] for none lies against a witness in respect of his evidence [on affidavit, or in proof, or in the box]. He is absolutely privileged for anything he may say..., however maliciously, in reference to the ca[u]se.' Best, s. 126; Dawkins v. L. Rokeby, L. R. 7 H. L. 744, 1875; Seaman v. Netherclift, 2 C. P. D. 53, 1876,

C. A.: the ground is public policy. In Watson v. McEwan, 1905, A. C. 480, the H. L. held that the protection extended to 'statements made to the client and solicitor in preparing the proof for trial.' As L. Halsbury there remarked, 'The communication complained of was no communication to strangers-to persons outside the litigation': protection could not be claimed, where, as Sir William Jones said in L. Stafford's case, 7 St. Tr. 1514, 1680, The evidence hath been printed and published to the world before it hath been given. I say, not that it was not necessary in this case, which was a national cause .. but I do say it would not be fit to be done in other cases, for the notifying of the evidence is the way to have it falsified or corrupted.'

Ecclesiastical consequences] a. Apparently the only ecclesiastical proceeding a layman could conceivably fear is " a criminal suit,' which is usually brought against a clergyman, but may be instituted against a layman for violation of ecclesiastical law': 11 Halsbury's Laws of England, p. 515; such suits, however, can only technically be described as criminal: ib. 516. For criminal proceedings in the ordinary sense the jurisdiction of these courts over laymen is obsolete: ib. p. 505. In Phillimore v. Machon, 1 P. D. 481, 1876, L. Penzance in the Arches Court of Canterbury, held that that court had no jurisdiction in false swearing by a layman, adding, I can only express my surprise that with the ordinary criminal courts of this country open to him . any person should have thought it worth while to make this experiment for the revival of a jurisdiction which, if it has not expired, has so long slumbered in peace.' A layman witness, therefore, need not subject himself to such jurisdiction as an ecclesiastical court still posseses over him, by virtue of the above statute.

b. A fortiori this is true of clerics of the Church of England, over whom that jurisdiction is much wider.

There cannot be a doubt that a judge, in deciding whether or not a witness is entitled to the privilege, would consider whether the danger suggested by the witness was real and appreciable with reference to the ordinary operation of the law in the ordinary course of things-not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct: per Cockburn C.J. Boyes, 1 B. & S. 311; 30 L. J. Q. B. 301; 7 Jur. N. S. 1158; 9 Cox C. C. 32; 5 L. T. 147, 1861, and below, where, despite his pardon, a witness pleaded fear of impeachment for bribery in a Parliamentary election-a procedure unheard of; and the mere chance of an obsolete jurisdiction like the ecclesiastical, or that of impeachment, being set in motion would very likely not be considered as entitling the witness to his privilege.

Criminal consequences] That the witness will be subjected to a criminal charge, however punishable, is clearly sufficient ground for claiming the protection. [The proviso that the alleged crime has been committed within the jurisdiction of English law or on British soil,' per Phillimore J., in Re Atherton, below (where Canada was for this purpose, in the same position as a foreign country'), cannot, in view of U. S. A. v. McRae, be maintained. The distinction, however, is that the foreign incriminating law must be proved to the judge's satisfaction more formally. So Phips. 200: 'crimes, penalties and forfeitures, cognisable not only by English but foreign law,' are

Criminal Consequences.

173:

within the rule.] Thus, the father of a bastard child could not be compelled to confess the fact, as he was thereby subjected to punishment under 18 Eliz. 3, 2 (rpd.): St. Mary, Nottingham, 13 East, 58 n.: before 1810. Nor could a witness be compelled to answer a question. which even had a tendency to convict him of usury. Cates v. Hardacre, 3 Taunt. 424, 1811. And if a witness was improperly compelled, after objection taken by him, to answer questions tending to criminate him, it would appear that such answers would not be admissible in evidenceagainst him should he be subsequently tried on a criminal charge-the only exception to depositions being admissible evidence against the deponent. Coote, 1873. The C. C. A. seemed to be of the same opinion in Noel, 1914, but it was not necessary to decide the point. But if the time limited for the recovery of the penalty have expired, the witness may be compelled to answer. Roberts v. Allatt, M. & M. 192, 1828. Whether or not a witness who has been pardoned is bound to answer questions which tend to show him guilty of the pardoned offence is perhaps doubtful. Apparently not, according to North C.J. in Reading, 7 St. Tr. 296, 1679; but that case has been much doubted. See last case above; and in Boyes, 1861, it was held by the Q. B. that a pardon. took away the privilege of the witness in such a case. Cf. Hay v. Justices of the Tower.

By the Corrupt and Illegal Practices Prevention A. 1883, 46-7 V. 51, 59 (1), witnesses before any election court, or before election commissioners, are not excused from answering concerning election offences; but (a) if they answer every question truly, they are to receive a certificate which will be a bar to all proceedings against them for any such offences, and (b) an answer by a person to a question put by or before any election court shall not, except in the case of any criminal proceeding for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in evidence against him.' See Leatham, 1860. By (2), if any legal proceeding be taken against the holder of such a certificate for offences before the date thereof, in respect of the election certified, the court must, in proof, stay the proceedings and may award him costs.

By the interpretation clause, s. 64, the word 'indictment' includes 'information,' which gets rid of Slator, 8 Q. B. D. 267; 51 L. J. Q. B.. 246, 1881: ex-officio information for perjury, held not to be included in indictment; as do the words 'any criminal proceeding' of the objection raised in Buttle, L. R. 1 C. C. R. 248; 39 L. J. M. C. 115; 10 Cox C. C. 566, 1870, where it was held that answers given before a commission could not be used on a trial for perjury committed at the trial of a petition about the same election.

Similar provisions are applied to witnesses in respect of offences under the Explosive Substances A. 1883, 46-7 V. 3, 6.

A witness on the examination [s. 25 of 1914 A.] of a bankrupt is within the general rule: Baldwin on Bankruptcy, 11th ed. (1915), p. 570; and see s. 166 below.

Bankrupts] By s. 15 of 4-5 G. 5, 59, the Bankruptcy A. 1914: Public Examination of the Debtor': (4) Any creditor who has tendered a proof, or his representative authorised in writing, may question the debtor concerning his affairs and the causes of his failure.' (5) (6) The official receiver shall, and the trustee may, 'take part therein.' (7) The court may put such questions to the debtor as it may think expedient.' (8) The debtor shall be examined upon oath, and it shall be his duty to answer all such questions as the court may

put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down in writing, and shall be read over either to or by the debtor, and signed by him, and may thereafter, save as in this Act [s. 166, below] provided, be used in evidence against him.' It was held under the Bky. Acts, 1883 and 1890, that 'a debtor who is in custody' or under remand on a criminal charge is bound, at his public examination in bankruptcy, to answer all such questions touching his conduct, dealings and property as the court allows to be put to him, 'even although the answers may incriminate him, and the inquiry. . . extends to all matters which the court' could take into consideration' under (rpd. s. 8 of the 1890) s. 20 of the 1914 A.: In re Atherton, 1912, 2 K. B. 251; 81 L. J. K. B. 791; 106 L. T. 641; 19 Mans. 126, where, owing to the possible extradition of the debtor, the usual practice of not pressing certain questions against a debtor charged criminally could not be followed; but Phillimore J. said: 'The official receiver, so far as he properly may, will not communicate the result of the examination to the police. He is not to go out of his way to furnish the police here with facts before the magistrate has committed.'

S. 166 of the 1914 A. is: 'A statement or admission made by any person in any compulsory examination or deposition before any court on the hearing of any matter in bankruptcy shall not be admissible as evidence against that person in any proceeding in respect of any of the misdemeanours' in s. 85 of 24-5 V. 96.

Trade secret] When the proprietor of certain unpatented pills cross-examined on their composition claimed the protection of the court, on the ground of its being a trade secret the disclosure of which would be a great loss to him, L. Lyndhurst ordered him to answer, but suggested to counsel the propriety of not going further into this subject than the ends of justice required.' Webb, 1834.

A question for the judge] The judge is to decide whether or not the witness is entitled to the privilege, subject to the correction of a superior court. What queries he ought to make in order to satisfy himself on this point has been the subject of considerable difference of opinion. In Fisher v. Ronalds, 12 C. B. 762, 1852, it was unneces sary to decide the point, but Maule J. said, 'It is the witness who is to exercise his discretion, not the judge. The witness might be asked, Were you in London on such a day?' and though apparently a very simple question, he might have good reason to object to answer it, knowing that, if he admitted that he was in London on that day, his admission would complete a chain of evidence against him which would lead to his conviction. It is impossible that the judge can know anything about that. The privilege would be worthless, if the witness were required to point out how his answer would tend to criminate him.' It was equally unnecessary to decide the point in Osborne v. The London Dock Company, 10 Ex. 701, 1855, but the question was a good deal discussed; Alderson B. observing (with the approval of Cockburn C.J. in Boyes, above) that 'a question which might appear at first sight a very innocent one might, by affording a link in a chain of evidence, become the means of bringing home an offence to the' witness; while Parke B. clearly inclined to the view that the witness ought to satisfy the court that the effect of the answer will be to endanger him: he stated that this was the opinion of the majority of the judges who considered Garbett, 1 Den. O. C. 236; 2 Cox C. C. 448,