the witnesses shall be admitted, for then it is the fault of the objector that he did not cross-examine the witnesses, since he would not join the examination. (1)

There has been, however, some difference of opinion on this subject. It is said to have been held in one case (2), that if witnesses are examined de bene esse before answer, upon a contempt, such depositions cannot be made use of in any other court, but in that court only, where they are taken. The reason, adds the reporter, seems to be because there was no issue joined, so as there could be a legal examination; and they were only taken to be read in the court in which they were taken, upon a contempt to that particular court. In another case, the case of Howard v. Tremaine (3), which was an action of ejectment by a devisee against an heir at law, a question was reserved for the opinion of the court of King's Bench, whether depositions could be given in evidence for the plaintiff under the following circumstances: a bill having been exhibited in Chancery by the plaintiff to perpetuate testimony, the defendant stood in contempt and would not answer; upon which the plaintiff had a commission, and examined witnesses to the matter of his bill de bene esse, and the defendant joined in the commission, and crossexamined some of the witnesses produced for the plaintiff, and, before the answer came in, the witnesses died. After an argument on the point, Lord Holt, according to the report in Shower, said, "Quære, if any court by course of law can examine witnesses till issue be joined, and therefore I much doubt, if these depositions can be evidence. We cannot take notice of what the Chancery allows as evidence, and their practice is no rule to us." Dolben J. also doubted. But Gregory J. thought the depositions good evidence, as the defendant had joined in the commission, and cross-examined. And Eyre J., ac

(1) Gilb. Ev. 56.

(2) Watt's case, Hardr. 331,

(3) I Show 363. 1 Salk. 278. S. C. Carth. 265. S. C.

cording

cording to the report in Salkeld, was clearly of opinion,
that they ought to be admitted.
"It would be very in-
convenient," he said, "if such evidence were not allowed.
For the heir at law will not answer the plaintiff's bill, and
will not call in question the title of the devisee, as long as
the devisee has witnesses alive to prove the will; but as
soon as they are dead, he will commence his suit." The
report in Shower adds, that in consequence of the doubt
expressed by Lord Holt, the case was adjourned. But in
Carthew's report of the same case, it is stated, that, “after
much debate, the Court was of the same opinion, that the
depositions might be given in evidence; otherwise, a bill
in equity to perpetuate the testimony of witnesses would be
to very little or no purpose."

This subject came before the court of King's Bench in the late case of Cazenove v. Vaughan (1); from which it now appears to be clearly settled, that depositions are not allowed to be read in evidence, before answer put in, or before the party is in contempt, unless he has had an opportunity of cross-examining; but if he has had such an opportunity, and has omitted to avail himself of it, he cannot afterwards make that a ground for objecting to the depositions as evidence.

Depositions

SECT. II.

Of Depositions, Examinations, Inquisitions, &c. &c.

DEPOSITIONS are frequently taken with the consent of

by consent. the parties to a suit, when a material witness is about to leave the kingdom, or resides abroad (2).

And these

time of the

depositions may be given in evidence, if at the
trial the witness has quitted the country (3). But if the
trial comes on before his departure, or after his return,

(1) 1 Maule & Sel. 4.
(2) See ante, p. 10,

(3) Anon. case, 2 Salk. 691. Falconer v. Hanson, I Campb. 172.

the

the depositions cannot be read. This rule, however, is not to be taken so strictly, as to make it absolutely necessary, that a witness, who is about to go abroad, should be on his voyage, when the trial comes on. If the ship has sailed, though it may have put back, or if the witness be on board, and the ship ready to sail, though prevented by contrary winds, that seems to be sufficient. (1)

in India

Where an indictment or information is exhibited in the Depositions King's Bench for an offence committed in India, or where a suit has been commenced in any court in this country for a cause of action arising in India (2), the depositions of witnesses may be obtained under the provisions of the statute 13 G. 3. c. 63. ss. 40. & 44. This statute enacts, that the Court may award a writ of mandamus to the judges of the courts in India, as the case may require, for the examination of witnesses, who are to be examined publicly in the court upon oath, administered according to the form of their several religions; and these depositions, duly taken and returned, in the form prescribed by the act, are to be allowed and deemed as good and competent evidence, as if the witness had been sworn at the trial, and examined vivâ voce.

before com

The depositions of witnesses, taken by commissioners of Depositions bankrupt, could not formerly be given in evidence, in an missioners of action to try the question of bankruptcy or any other ques- bankrupt. tion connected with it, because in these proceedings the parties interested had not the power of cross-examining the witnesses (3). But now, by the statute 5 G. 2. c. 30. s. 41. "Upon petition of any person to the great seal, praying that the commission and the depositions taken thereon, or any part of such depositions, and any other matter or thing relating to the commission, or the proceedings there

(1) Fonsick v. Agar, 6 Esp. N. P. C. 92.

(2) Francisco v. Gilmore, 1 Bos, & Pull. 177.

>

T

(3) 2 Roll Ab. 679. pl 9. Bull. N. P. 242.

on,

on, may be entered of record, the great seal may direct them to be entered of record; and in case of the death of the witnesses proving the bankruptcy, or in case the commission, depositions, proceedings, or other matters or things, be lost or mislaid, a true copy of the record of such commission, depositions, and proceedings, or other matters or things, signed and attested as therein mentioned, may upon all occasions be given in evidence to prove such commission and the bankruptcy of such person, against whom the commission issued, or other matters or things."

These depositions, when recorded, are evidence in an action at law, to prove the precise time, when the act of bankruptcy was committed (1); for the witness cannot tell his story before the commissioners, without saying when the act of bankruptcy was committed. He must mention that naturally and of course, and therefore is the more likely to speak the truth. In many cases, its being an act of bankruptcy depends on the time. The legislature considered the commissioners as indifferent persons, examining the witnesses with impartiality, and taking care of the interests of all parties. (2)

By statute 49 G. 3. c. 121. s. ro., in all actions brought by or against assignees, the commission and the proceedings of the commissioners are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, unless the other party in the action, if de fendant, at or before the time of pleading to the action, and if plaintiff, before issue joined, give notice in writing to such assignee, that he intends to dispute the same. And by section 11. of the same act, in all suits in equity by or against assignees, the commission and proceedings are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, against all the (2) Per Ld. Mansfield, ib,

(1) Janson v. Wilson, 1 Doug. 257.

other

other parties in the suit, unless such parties, some or one of them, within ten days after rejoinder in the cause, give notice in writing to the assignees, that they intend to dispute the same. This statute applies only to those cases, where the assignees are parties to the action. In an action between third persons, if the validity of a commission of bankruptcy comes incidentally into question, as а ground of defence, it must be regularly proved, as it would have been before the passing of the statute (1). But the statute is not confined to cases where the assignees are named as such upon the record; and will apply, where the opposite party knows, that they make out their title under the commission (2). When the proceedings are offered in evidence, it will be sufficient to prove that they came out of the proper custody, (namely, that of the solicitor to the commission,) or to prove the hand-writing of one of the commissioners, before whom they were taken (3). Such evidence is necessary, although there has not been any notice of an intention to dispute their validity.

The words of the statute are, that "the commission and the proceedings of the commissioners are to be received as evidence of, &c., unless the other party give no tice in writing, that he intends to dispute the same." The proceedings are therefore prima facie evidence; but not conclusive. The bankrupt, in an action against the assignees, may call witnesses to contradict the depositions respecting the petitioning creditor's debt, the trading, or the bankruptcy, although he has not given such a notice to the assignees. (4)

In an action of assumpsit for a creditor's share, under an order of commissioners of bankrupt for a dividend, the

(1) Doe dem. Mawson v. Liston, 4 Taunt, 741.

(2) Simmonds v. Knight, 3 Campb.

(3) Collinson v. Hillear, 3 Campb. 30. Ellis v. Shirley, 3 Campb. 424.

251.

T 2

pro