probably be in a given case. The amount claimed was largeover $30,000. The books of the bank showed checks to that amount coming through the clearing-house or paid over the counter and charged to the customer's account. But they were not produced, and the question was how could they be proved to be his? The vouchers were either lost or had been suppressed. But who suppressed them? Had the bank any motive in doing so? Had the customer any motive?

It appeared singular that the customer had refrained from demanding this sum of $30,000 from the bank for ten years although his failure to demand it cost him seven per cent. interest per annum, a total of $21,000. If he had demanded it, the statute of limitations would run against his claim, and he could not have delayed his suit for ten years when the detection of fraud would be so difficult. Why did he delay suit and lose so large a sum in interest? During the ten years he had become reduced, by reverses in business, from affluence to poverty, and it looked as if the revival of this old question of the lost vouchers was a desperate speculation. He was asked on the witness stand to produce the stubs of his check-book to show what checks he had actually drawn during the period covered by the disputed settlement in his pass-book. He replied that he never kept a check-book but always used loose blanks obtained at the bank. He was then asked for his ledger to ascertain if any payments made by him corresponded to the checks listed in the pass-book, which had been paid by the bank. He replied that he never kept a ledger; and in answer to subsequent questions he stated that all his other books had been lost, sold or destroyed. On cross-examination he was asked this question: "You deny these 27 vouchers; they cover a period of three months; during that time you must have made payment by check and those checks must be among these vouchers; which of them do you admit?" He replied, "none," that all of them were for amounts different from the amounts he had drawn for. He was asked, "What then were the amounts you drew for?" "I cannot remember." The bank endeavored to find the merchants with whom he had dealt (he being a wholesale and retail grocer) and notwithstanding the lapse of nearly twelve

years, it was able to identify certain checks paid out by him for goods, and deposited by the recipients in their banks with the checks passing through the clearing-house and paid by his bank, charged among the missing vouchers. Notwithstanding this absolute proof of the falsity of his statement that none of the vouchers were drawn by him the jury gave him a verdict for the full amount of his claim, including the checks that had actually been traced to him. One of the jurymen being afterwards asked for an explanation of such an extraordinary finding said that they had unanimously agreed that it would not be safe to let a bank to charge a customer for a voucher which it could not produce. The verdict was afterwards set aside and so was a second for a smaller amount, and the case was never again brought to trial.

The best legal talent which the bar afforded was engaged in the case, and it is interesting to note that the counsel for the plaintiff was so dispirited in the course of the trial by the extraordinary developments in it that he consulted the presiding judge as to the propriety of withdrawing from the case. The judge advised him that such a course would be certainly proper if the client admitted his bad faith but not if the counsel were convinced of the justice of his cause in spite of appearances. The verdict of the jury no doubt astonished him as much as it did his opponent. To return to the cross-examination of which I spoke; the bank clerk had denied positively the plaintiff's statement that at each balancing of his book during the ten years referred to he had protested against the balance being struck, as shown by the book. He was cross-examined in the usual way as to whether he remembered all that the customer said on those occasions and admitted that he did not recall any conversation with the plaintiff, except when the book was first balanced upon the charge of the missing vouchers. He was asked how he could deny what the plaintiff testified to when he did not recall anything that was said. He replied, "it was because it did not occur." He was asked how he knew it did not occur and he said, "because he remembered it." He was then triumphantly asked how he could remember it if it never occurred?—which question he was unable to answer: An adroit witness might have

replied that while he could not remember everything that had happened in the court-room the day before, he could yet positively swear that no one stood on his head during the proceedings. Here however was a perfectly honest witness confused by an ancient quibble.

The case of a dishonest party who, as his own witness, may be convicted by his ignorance of matters which he ought to know if his claim were just, was never better illustrated than in the litigation over the celebrated Tichborne estate. A claimant personated the lost heir and was subjected to a cross-examination unexampled in the history of judicial proceedings.

The one thing that could be assumed with certainty respecting the real Sir Roger Tichborne, whose mother was a French woman, was that he must be familiar with the sound of her name (Félicité) in her native tongue. The claimant, who was suspected of being Arthur Orton, the son of a Wapping butcher, displayed extraordinary familiarity with much that occurred in the youth of Sir Roger, but here and there were evidences of coaching. When asked if he knew what his mother's name was his answer showed that he had seen it written but certainly had never heard it pronounced and knew nothing of French. He said her name was Feliceet.

It is not only a good judge of human nature but also a good reader of character from the human countenance that is sometimes required in counsel, whose duty it is to examine witnesses. A remarkable instance of doubt arising upon the conflict between a case and a countenance occurred some years ago. A middle-aged man with the distinctively honest face of an immigrant belonging to a respectable and substantial peasant class, was put on the stand as the sole witness in support of his claim against his uncle, a wealthy contractor, who had brought him from the old country and given him employment, so the witness testified, as confidential overseer "of all his affairs" at a salary of fourteen dollars a week, five of which were to be retained by his uncle and saved up for him until he should choose to start out for himself. His story was denied flatly by the so-called uncle, who repudiated the relationship and declared the plaintiff to be an impostor and brought regular

weekly receipts to show that he was paid nine dollars per week in full of all demands for years and that, so far from being any kind of superintendent, he filled the humblest place of an unskilled laborer. The probabilities were decidedly against the plaintiff and his honest face seemed to be the only corroboration of his story. Upon cross-examination, however, the uncle was confronted with two letters directed to the plaintiff's father abroad and addressed Dear brother." The defendant professed to be unable to say whether they were signed by him or written from his dictation but his book-keeper being called identified them as dictated and signed by defendant. One of these letters told Dear Brother that James (the plaintiff's name was James) was jogging along in his customary quiet way "overseeing all the writer's affairs"; and the other letter told that James was "laying by a pound a week"! The judges of human nature in the jury box were glad to find that faces like facts cannot lie, and they gave the plaintiff a verdict for about "a pound a week" for the whole period claimed-a verdict sustained by the court of last resort. There is no question but that a good letter, document, or book entry is an excellent thing to help on a cross-examination. A partisan witness with a treacherous memory can be led by the simplest means into positive assertions of fact which his own written record is at hand to contradict. It is with respect to parties to the suit that such written evidence should be sought and the first duty of counsel is to go thoroughly into the correspondence of the parties and the papers of the case, if any there be, to accumulate matter for effective cross-examination.

The instances of witnesses turning the tables upon crossexamining counsel and raising the laugh against the legal practitioner are nearly all found in those veracious reports the “Facetiæ” columns of the newspapers. There everything that can occur to the ingenious lay mind by way of skilful repartee is put into the mouths of the witnesses to the utter confusion of the lawyers. There are well-authenticated instances, however, of witnesses retorting in a manner that exhibits an unusual degree of shrewdness and no mean idea of the legal force and materiality of testimony. The late Judge Brady related an

incident that occurred when he was holding the old court of Oyer and Terminer before that ancient tribunal had been superseded by Part I. of the Trial Term of the Supreme Court, designated by rule as the Criminal Term for the trial of indictments. A negro witness for the prisoner was under crossexamination by the Assistant District Attorney, who was endeavoring to elicit some damaging admissions of former collisions between the witness and the guardians of the public peace. "Tell me," asked the counsel severely, "do you know Officer Smith ?" The eyes of the witness rolled apprehensively and beads of perspiration started on his brow while he repeated the question nervously several times as if to gain its full import: "Do I know Officer Smith ?-Do I know Officer Smith? Then with a sudden burst of relief he exclaimed "Does Officer Smith know me, boss? — Dat's de question!" And so it was. The well-taken point was, it is needless to say, thoroughly appreciated by so good a judge of wit and humor as the presiding justice as well as by jury, bar and spectators.

The advantage, however, as actual experience goes, is generally on the side of the cross-examiner. One of the neatest effects ever witnessed was produced by a single question put by one of the young leaders at our bar in the course of an inquiry on habeas corpus as to the sanity of an interested party. A medical expert had testified to his mental unsoundness and had detailed with great clearness the tests he applied to his case, and the results which established to his satisfaction an advanced stage of paresis. He finished his direct examination one afternoon and next day was cross-examined for the purpose of eliciting that many of the conditions he described could be found in every sane person. After being questioned as to the first indication of mental feebleness he had specified, he was then asked what was the second feature of the cases he had mentioned as indicating paresis. The witness was unable to recall which he had mentioned second. "What, Doctor, you can't recall the second indication of progressive mental decay which you spoke of only yesterday?” "No, I cannot, I confess." "Well, that's funny. Your second indication was 'Loss of memory of recent events."" The doctor admitted cheerfully that he had the symptoms himself in a marked degree.