AWARD OF THE FISHERY COMMISSION. 29G7 



vessel caught such a quantity. Mr. Foster asked him if it was a return, 

 and la- (.Mr. Davies), said it was a return, and explained that it was in 

 no sense an official one. Mr. Foster asked him, at the close of the ex- 

 amination, if he would let him see it, and he gave him the document. 

 It \vas, however, only part of what he had held in his hand ; it was in no 

 sense an official record ; it did not purport to be such, and was not read 

 l>y him as such; but was only used by him for the purpose of cross- 

 examination. 



Mr. FOSTER said, if the other part was produced, he would put it in. 



Sir ALEXANDER GALT said he did not think Mr. Foster could put in 

 a return of the other side. 



Mr. FOSTER reread the cross-examination referred to, and said it 

 covered the paper. 



Sir ALEXANDER GALT asked whether Mr. Foster or Mr. Ford put in 

 the return, for some one must put it in and be responsible for it. 



Mr. FOSTER said a paper forming a subject matter of cross-examina- 

 tion was at the disposal of the counsel on both sides of the case, and if 

 the counsel opposed to the one who cross-examined, calls for the paper, 

 it must be produced. When produced and inspected, he had the right 

 to put it in as he pleased, not as independent evidence of his own, but 

 as part of the subject matter of the cross-examination. That question 

 came up in courts frequently in this way. A counsel cross-examines a 

 witness as to the contents of a letter the witness is said to have written, 

 and the letter is introduced by the cross-examining counsel by way of con- 

 tradicting the witness, but it is incompetent to be introduced as substan- 

 tial evidence on either side. Then, as there has been cross-examination 

 of the witness upon it, the party has the right to have the letter read 

 in the case. 



Sir ALEXANDER GALT. Who puts the return in ? 



Mr. FOSTER. I put it in, not as substantive evidence on my side, but 

 as a paper drawn out from the other side, which the mode of their cross- 

 examination entitles me to have in the case. 



Mr. THOMSON said there was no such rule of evidence known to Brit- 

 ish courts as that laid down by Mr. Foster. Counsel may for the pur- 

 pose of cross-examination produce a paper and ask a witness whether 

 he had written a certain statement at variance with those he was then 

 making, but before counsel could do that he must have the written 

 statement in his hand and submit it to the judge, and satisfy him that 

 he was not attempting to frighten the witness by an imaginary paper. 

 The witness was then requested to state whether such a statement was 

 made by him in writing; but that gave the opposing counsel no right 

 to take the paper. It remained entirely with the counsel as to what use 

 he should make of it afterward to contradict the statements of the wit- 

 ness during the examination ; if the witness admitted that he had made, 

 such a written statement, then he might be asked as to how he recon- 

 ciled the testimony he had given with the written testimony he had given 

 at that time. Such a rule as that mentioned was unknown to any British 

 court that the fact of a counsel cross-examining a witness on a paper, 

 gives the control of the paper to the opposing counsel. He had never 

 heard of such rule in any American court, though, of course, he would 

 not attempt to place his opinion regarding the rules of United States 

 courts against those of Mr. Foster. If Mr. Foster, as agent of the 

 United States, intended to take the paper and put it in evidence by 

 reason of it having been in the hands of one of the British counsel for 

 the purpose of cross-examination, he must take it and put it in as part 

 of his evidence, vouching for its authenticity, and being responsible for 

 its correctness. 



