Leading questions, however, are allowed upon cross-examination. See DROSS-EXAMI NATION.
The right of re-examination extends to all topics upon which a witness has been cross examined ; the witness cannot at this stage, without permission of the court be question ed as to any new facts unconnected with the subject of the cross-examination and not tending to explain it ; 1 Greenl. Ev. § 467.
But the court may in all cases permit a witness to be called either for further ex amination in chief, or for further cross-ex amination; Steph. Ev. art. 126; and may it self recall a witness at any stage of the pro ceedings, and examine or cross-examine, at its discretion; 6 C. & P. 653. If new matter is introduced on the re-examination, by per mission of the court, the adverse party may further cross-examine upon that matter ; Steph. Ev. art. 127.
As a general rule no one can impeach his own witness ; Pollock v. Pollock, 71 N. Y. 137. This rule of the common law applies only to one who has given evidence material to the issue ; 7 C. & P. 64; 2 Moo. & R. 273. It rests on the theory that a party calling the witness guarantees his veracity ; Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349; Pollock v. Pollock, 71 N. Y. 137; but this reasoning has teen characterized as artificial and unsatis factory ; 13 Harv. L. Rev. 60, citing 11 Am. L. Rev. 261. But a witness summoned by one party and examined by him on an imma terial point may be impeached by him if call ed by the other party as a general witness ; Fall Brook C. Co. v. Hewson, 158 N. Y. 150, 52 N. E. 1095, 43 L. R. A. 676, 70 Am. St. Rep. 466; though in that state the common law rule against impeaching one's own wit ness remains in force ; Coulter v. Exp. Co., 56 N. Y. 585; but this rule has been largely altered by statute ; 13 Harv. L. Rev. 60. So a party may contradict his own witness when not selected by him but by the law as neces sary to prove the particular fact; Morris v.
Guffey, 188 Pa. 534, 41 Atl. 731; Crocker v.
Agenbroad, 122 Ind. 587, 24 N. E. 169; and a party is sometimes, in cases of hardship, permitted to contradict him by other testi mony ; 1 Stark. Ey. 147; 1 Greenl. Ev. § 442. And a party bona fide surprised at the unex pected testimony of his witness may be per mitted to interrogate him, as to previous declarations alleged to have been made by him inconsistent with his testimony, the ob ject being to prove the witness's recollection, and to lead him, if mistaken, to review what he has said ; 1 Whart. Ey. § 549. See infra.
"Adverse" witness, in the sense of the stat utes allowing contradiction by the party call ing him, means really "hostile" and not mere ly "unfavorable"; Fisher v. Hart, 30 W. N. C. (Pa.) 208; he must have "'proved adverse in the sense of showing a mind hostile to the party calling him"; 5 C. B. N. S. 786, 788, where the subject is discussed at length by all the judges, with the curious result that Cockburn, C. J., having decided as above stated, and his associates having affirmed his decision, he himself suggested a doubt arising out of the discussion, and concluded by saying that "without, therefore, actually dissenting from it, it is enough to say that I do not wholly concur in it." In L. R. 1 P. & D. 70, counsel said, in objecting to evidence contradicting a witness from the side which called him (a necessary witness—to a will): "He is not a hostile witness, for he gave his evidence fairly and with no animus against the plaintiff. He is an adverse witness, for he did not give the evidence which the plain tiff wished him to give ; but that does not entitle the plaintiff to contradict him on a collateral matter." The court said: "The counsel is right in the distinction he draws be tween an adverse and hostile witness. A hos tile witness is a witness who, from the man ner in which he gives his evidence, shows that he is not desirous of telling the truth to the court." See Tayl. Ev. (p. 1132 of 3d ed.) and § 1288. See also cases cited in 1 Rose. N. P. Ey. 174.