1

Ch. II. f.2. could not be found; nevertheless the Court Depofitions. held that the refpondents could not read his examination on the hearing of the appeal; and in two fubfequent cafes the Court of King's Bench declared that the evidence offered in the cafe of the King and Erifwell was not admiffible, and rejected a fimilar examination even after the death of the pauper.

Rex v. Ferry Fryftone,

2 Eaft. 54

Rex v.

Abergwil ly, ibid.63.

Ruth

worth v. Countess of Pem

broke,

It was before obferved that a verdict could not in general be given in evidence against a man who was not a party to the caufe, and therefore had no power to cross-examine the witneffes. This rule applies equally to the cafe of depofitions, which are, as to a firanger to the caufe, mere ex parte examinations: and Hard. 472. therefore, unlefs in particular cafes where the Legislature has made them evidence against all perfons, they are not admitted to be read against him; and the converfe of the propofi tion, namely, that a man who is not bound by the depofitions, fhall not avail himself of them, applies with ftill greater force; for if this were allowed, he might ufe all thofe which made for him; and thofe of a contrary defcription could not be ufed against him, because he had no power to cross examine the witneffes.

I fhall here mention only one cafe in which depofitions are made evidence against all perfons by particular Act of Parliament, and that is in the cafe of bankruptcy. By Stat. 5. i. 2. c. so. it is enacted, "that commiffions

and

and depofitions, or any part of fuch depofitions, Ch. II.f.z. may, on petition to the Lord Chancellor, be Depofitions. entered on Record, and in cafe of the death of the witneffes proving the bankruptcy, or in cafe the commiffion, depofitions, proceedings, or other matters or things, fhall be loft or mislaid, a true copy of fuch commiffion, &c. figned and attefted, as therein after is mentioned, fhall and may, upon all occafions, be given in evidence to prove fuch commiffion, and the bankruptcy of fuch perfon, against whom fuch commiffion hath been or fhall be awarded, or other matters or things.

Janfon v.

Wilfon,

Dougl.

If a commiffion iffues, and a witnefs proves an act of bankruptcy on a particular day and dies, his depofition, when inrolled, may be 244. given in evidence to prove the act of bankruptcy, and the time it was committed, against any perfon whatever; and therefore, if a creditor of the bankrupt levies his goods under an execution after the day on which fuch act of bankruptcy is proved, the deposition is fufficient to overturn it.

It is well obferved by Mr. Douglas, in the cafe of Janfon v. Wilson, that there is a remarkable inaccuracy in this Act of Parliament. After prefcribing the manner of entering the commiffion, &c. of Record, it fays that true copies, figned as hereinafter mentioned, fhall and may be given in evidence; but there is not, in the fubfequent part of the claufe, nor F

of

Ch. II.I.z. of the Act, any provifion for attefting and Depofitions figning the entries fo made. It is only en

Roch . Rix,

G. Law

Gilb.

Ev. 56.

Piercy

V.

Sir T.

Jones, 164.

Gilb. Law

acted that, "the Lord Chancellor fhall ap-. point a perfon who fhall by himfelf or his deputy, by a writing under his hand, enter of Record fuch commiffion, &c." On a liberal conftruction of the Act, it might poffibly be implied that power was given to fuchofficer to certify his inrolment, and then his certificate would, as we have feen in other inftances, be fufficient evidence of the copy; but the fafer way would certainly be to prove it examined with the original alfo.

It is a general rule, applicable to all proceedings in Courts of Equity, that in order to give, in evidence an anfwer, depofitions, affidavits, or any other interlocutory proceeding in a caufe, a foundation muft first be laid by proof of all the former ftages of it; as the bill to make way for the anfwer; the bill and anfwer, or that the defendant was in contempt, as the foundation for the depofitions, and fo on; otherwife, two inconveniences would follow; firft, that the whole context and bearing of the evidence would not appear; fecondly, that the Court could not fee whether it was a regular proceeding; and if not, then the anfwer or depofitions would have only the effect of a mere Stile 446. voluntary affidavit, which, if made by a stranger, could not be received as any evidence at all, because there the party would have no opportunity of crofs examination;

Ev. 65.

and

and if by the party, then only under the cir- ch. II. f.2. cumftances and manner before stated."

General Rule as to

Chancery Proceedings.

Backhouse

v. Middle

ton, 1 Ch. Caf. 173.

In order further to explain what is before faid, as to the neceffity of the proceedings being regular, to make the depofitions evidence, it may be neceffary here to mention that the diftinction which has been taken in the books, as to the regularity of proceedings is this, if the bill be difmiffed because the plaintiff is irregular in his proceeding, as where a devifee on a fuit commenced by his devifor, brings a bill of revivor, and several depofitions are taken, and then the caufe on hearing is difmiffed, becaufe a devifee claiming as a purchafer, and not by representation, cannot bring a bill of revivor; in this cafe, the depofitions can never be read in any other Smith v. caufe, because there was no caufe regularly before the Court: but if a caufe was once properly Ray-735. before the Court, though the bill was difmiffed because it was not a matter fit for Equity to decree, the depofitions will be evidence.

Veale,

I Lord

Roch v.
Law Ev.56

Rix. Gilb.

vide 5

Mod. 211.

We have before feen that even a judgment, when deftroyed, may be proved by fecondary evidence: this rule applies univerfally to every fpecies of evidence, and, therefore, where it appeared from the evidence of the proper officer, that the office had been fearched, and the bill could not be found, the anfwer was Blower v. permitted to be read without it, fo ancient depofitions have been received as evidence with- Keb. 31. out bill or anfwer; but to entitle a party to

Ketch

morc, 2

Decree in

Chancery.

Ch.II. f. 2. deviate fo much from the general rule, they ought certainly either to be fortified by great length of time, or elfe fome other reafonable evidence be given, that the bill had been once there, and in what way it had been loft.

Decree.

The decree is evidence on the fame principle as a judgment in a Court of Law, and fubject to the like rules, viz. that where it refpects private property or individuals, it is only evidence against parties to the fuit, or others claiming through them; but when the queftion is of a public nature, it is then eviDoug.222. dence againft all perfons ftanding in a fimilar fituation with the parties to it.

Cafe of
Manchef-

ter Mills.

note 13.

Lord Tha

net v. Patterfon,

235.

While the decree remains in paper, it cannot be read in evidence for the purpofe of Bul. N. P. proving its contents, without alfo proving copies of the bill and anfwer, unless they are recited at length in it; but when the only object of the evidence is to thew that a decree was in fact made, or the decree has been exemplified, under the feal of the Court, and inrolled, it is of itfelf evidence; and the oppofite party may, in the latter cafe, fhew that the point in fue in that fuit, was different from that before the Court (n).

Of

(n) In the cafe of Wheeler and Louth, Guildball, 9 Ann. (Com.. Dig. Ev. c. 1.) it was held by Trevor C. J. that if the bill and anfwer were recited in the decretal order, it was fufficient; but if only fo much is recited as is deemed neceffay to introduce the

decretal