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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)
Where an indictment or information is exhibited in the 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 Couit 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 viva voce.
The depositions of witnesses, taken by commissioners of Depositions bankrupt, could not formerly be given in evidence, in an mu^e^f action to try the question of bankruptcy or any other question 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. 3 o. 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) Fonikk v. Agar, 6 Esp. N. P. C. (3) 1 Roll . Ab, 679. pl . 9. Bull. N.
(1) Francuco v. Gilmore, Z Bol. tt Pull. 177.
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 (I); 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, it9 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 O. 3. c. 121. 9.16., 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 defendant, 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
(1) Janson v. Wilton, I Doug. 1$7. (1) Per hi. MaarfoM, ib,
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 a ground of defence, it must be regularly proved, as it would have been before the passing of the statute (i). 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 notice in writing, that he intends to dispute the same." The proceedings are therefore primd 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
proceedings of the commissioners are conclusive evidence of the debt, against the bankrupt's assignees (1): where the debt has been once liquidated before the commissioners, it cannot be litigated, except on an application to the great seal. But on an indictment for perjury, charged to have been committed by flie defendant in passing his examination before the commissioners, strict evidence of the bankruptcy seems to be necessary, and the commission and proceedings under it will not be sufficient proof; for the authority of the commissioners in taking the examination is grounded, not in the commission, but in the bankruptcy. (2)
Depositions Justices of the peace are enabled and directed to take tUe°of peace. tne depositions of witnesses in cases of felony, by the statutes 1 & 2 Ph. & M. c. 13. s. 4., and 2 & 3 Ph. & M. c. 10. (3). By the first of these statutes, "justices of the peace, when any person is brought before them for manslaughter or felony, being bailable by law, shall, before any bailment, take the examination of the prisoner, and the examination of them who bring him, of the fact and circumstances thereof, and the same, or as much as may be material to prove the felony, shall put in writing, before they make the bailment; which examination, with the bailment, the said justices shall certify at the next general gaol delivery to be holdcn within the limits of their commission."
As this statute extended only to bailable felonies, and not to cases where the justice committed a prisoner on suspicion of manslaughter or felony, (in which cases, however, the examination of the prisoner, and of those who brought him before the magistrate, was more necessary, than where the prisoner was bailed,) it was therefore enacted by statute 2 & 3 Ph. & M. c. 10., "that the justice, before he shall
(1) Brown v. Bullen, i Doug. 407. P. C 5i. Twit's cue.KeL 19. Paine's
S) R. v. Punshon, 3 Campb. 9*. case, I Silk. 181. Woodcock's case, ) iHaLP.C. 30;. stS. a Hat a Leach CrvCnes. 56j.
commit a prisoner, brought before him on suspicion of manslaughter or felony, shall take the examination of the prisoner, and the information of those who bring him, of the fact and circumstance thereof, and shall put the same, or as much thereof as shall be material to prove the felony, in writing, within two days after the said examination, and the same shall certify in such form and at such time as they ought to do, if such prisoner so committed had been bailed."
In the construction of these statutes, it seems now to be settled (i), that the depositions of a witness, taken upon oath (2), in the presence of a prisoner (3) who has been brought before the magistrate on a charge of felony, may be given in evidence on the trial of an indictment for the same felony, if it be proved on oath to the satisfaction of the Court, that the informant is dead (4), or not able to travel (5), or that he is kept away by the means and contrivance of the prisoner (6); provided also, that the depositions offered in evidence are proved to be the same, as were sworn before the justice, without any alteration (7). Before the statute of Philip and Mary, a deposition taken before a justice of the county, where a felony was committed, would not have been evidence, even though the witness had died or was unable to travel. (8)
It is not essential to the validity of depositions, that they should be signed by the deceased witness. In Flemming's case, on an indictment for a rape, all the judges concurred
(1) See Hawk. PI. Cr. b. 1. c. 46. BuB. N. P. 244. Case of Flem
ming and Windham, a Leach Cr.
(2) I Hal. P.C. 30J. 586. 2 Hal. C. 996. Westbeer'a case, I Leach Cr. P. C.51.110.184. Dalton. Juft.c iil. C.14. (in which case the deposition* p. 269. Bull. N. 24a. were those of a deceased accomplice).
(3) R.v. Payne, 5 Mod. 163. eked (5) I Hal. P. C. 305. 586. 1 Hal. per Ld. Kenyon, 3 T. R. 713. Wood- P.C.51. KeL 55 (the case of depocock's case, 2 Leach Cr. C. 566. R. v. sitions before a coroner).
Vipont, 2 Burr. 11*3. (6) Kel. 55. Foster, Disc p. 337.
(4) 4th res. in Ld. Morley's case, (7) 1 HaL P.C.305. a Hal.P.C. KeL SS. Brosrwich'scase, iLev. 180. 52. KeL 55.
Dalt.c.m. p.369. Adm.perCur.in (8) 3 T.R. 710, 722.