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Judgment
Arnold White, Kt., C.J.—In the course of the Advocate-Generals cross-examination of Mr. Weston certain suggestions were made which
Mr. Grant submitted on behalf of Mr. Weston imputed dishonorable, if not dishonest, conduct to Mr. Weston. These suggestions were not
substantiated and this being so, Mr. Grant on behalf of his client formally asked the Advocate General to withdraw them. The Advocate-General
did not do so. We were asked by the Advocate-General and by Mr. Grant to express our opinion as to whether in the circumstances, the
Advocate-General ought to have withdrawn the suggestions. One matter was in connection with the alteration of the date at the foot of Exhibit J 1.
There is a pencil entry at the foot of Exhibit J 1, which, obviously, was originally July 26,and which was altered in pencil into July 27. The
suggestion as to this was, so far as I understand it that July 26 was altered into July 27 so as to identify the specification which according to the
plaintiff''s case, was the specification referred to in the Clibborn contract. No attempt was made to convert the date as originally written. Mr.
Weston said he wrote July 26 in the first instance by mistake. I see no reason to suppose that the alteration, or correction, which Mr. Weston
admits he made, was made with any similar or dishonest intention. It seems to me a matter of small importance and I am not prepared to say that it
was the duty of the Advocate-General for really to withdraw any imputation which he intended to convey in connection with the alteration of July
26th into July 27th. The other matter to which Mr. Grant thought it necessary to call our attention seems to me to be more serious.
It would seem that the original of the specification with reference to which the contract of August 11th (Exhibit R) was signed should be in the
possession of Government. This document has not been produced. Mr Weston sent a copy of this specification to his London office. Exhibit H H
H is a copy of the document sent to England. In the copy the letters M. B. (the initials of Mr. Brown) appear under date 11th August 1909, the
date of the formal contract (Exhibit K). The suggestion made in the cross-examination of Mr. Weston, as I understand it, was that he was a party
to adding these initials to the copy knowing they did not appear in the original document. The Advocate-General was of course cross-examining on
specific instructions.
In re-examination Mr. Grant put it to the witness "" It is suggested that you were a party to putting a signature on (the copy sent to England) in
order to; indicate that the original of which it is said to be a copy was signed by Mr. Brown. Were you a party to a forgery in respect of that?
The witness''s answer was "" Certainly not"". Mr. Grant''s version put in re-examination of the imputation which he said the Advocate-General made
on his client was not repudiated by the Advocate-General. The imputation, I suppose, is that Mr. Weston sought to manufacture evidence in the
plaintiff''s favor by adding words to a copy of a document which he sent to his principals in England, which to his knowledge the original document
did not contain. That of course, is a very serious charge. It may or may not be criminal. It is certainly dishonest. The Advocate-General was not
prepared to carry the matter further either by producing the original document or by putting Mr. Brown into the box. In these circumstances Mr.
Grant says the Advocate-General ought to have withdrawn the imputation. This raises a question of the Ethics of Cross-examination of some
delicacy and difficulty. My own view is (we have no authority in the matter and it is only my "" pious opinion"") that in all the circumstances and
having regard to the character of the litigation and the parties to the suit the imputation ought to have been withdrawn. I should, not have thought it
necessary to say anything about this incident if we had not been expressly asked both by the Advocate-General and by Mr. Grant to make some
statement on the subject.
Oldfield, J.
I concur in this expression of opinion.