Depositions before justice of peace. proceedings of the commissioners are conclusive evidence Justices of the peace are enabled and directed to take the 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 man slaughter 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 ge neral gaol delivery to be holden 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, 1 Doug. 407. P. C. 52. Tong's case, Kel. 19. Paine's com 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 (1), 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, Pl. Cr. b. 2. c. 46. 3.15. (2) 1 Hal. P. C. 305. 586. 2 Hal. P. C. 52.120.284. Dalton. Juft. c. III. p. 369. Bull. N. 242. (3) R. v. Payne, 5 Mod. 163. cited per Ld. Kenyon, 3 T. R. 723. Woodcock's case, 2 Leach Cr. C. 566. R. v. Vipont, 2 Burr. 1163. (4) 4th res. in Ld. Morley's case, Kel. 55. Bromwich's case, 1 Lev. 180. Dalt. c. 111. p. 369. Adm. per Cur. in Payne's case, Salk, 281. Hal. P. C. ib. Bull. N. P. 242. Case of Flemming and Windham, 2 Leach Cr. C. 996. Westbeer's case, I Leach Cr. C. 14. (in which case the depositions were those of a deceased accomplice). (5) I Hal. P. C. 305. 586. 2 Hal. P.C. 52. Kel. 55 (the case of depositions before a coroner). (6) Kel. 55. Foster, Disc. p. 337. (7) Hal. P. C. 305. 2 Hal. P. C. 52. Kel. 55. (8) 3 T.R. 710.722. in opinion that the depositions of a girl deceased, on whose person the crime had been committed, taken on oath by the committing magistrate, had been properly admitted in evidence at the trial, though the depositions were not signed by the deceased. (1) The information of witnesses, taken before justices of the peace, cannot be given in evidence on an indictment for a misdemeanor, (as, on an information for publishing a libel,) or in civil actions, or on an appeal for murder (2). Nor can a conviction for petty treason be grounded on such evidence (3); for the statute 1 Ed. 6. c. 12. s. 22. enacts, "that no person shall be indicted, arraigned, condemned, or convicted, for any offence of treason or petty treason, unless he be accused by two sufficient and lawful witnesses, or shall willingly without violence confess the same;" and this is confirmed by statute 5 & 6 Ed. 6. c. 11. s. 12., which enacts," that no person shall be indicted, arraigned, condemned, convicted, or attainted, for any of the treasons specified in the act, or for any other treasons, unless the offender be accused by two lawful accusers; which said accusers at the time of the arraignment of the party accused shall be brought in person before the party so accused, and avow and maintain what they have to say against the said party, to prove him guilty of the treasons or offences contained in the bill of indictment laid against the party arraigned; unless the said party arraigned shall willingly without violence confess the same." However, as a prisoner may be convicted of murder, on an indictment for petty treason, the depositions are admissible in evidence to support a conviction of murder, though not sufficient to support a conviction of petty treason. (4) The words of the statute 1 & 2 Ph. & M. c. 13. S. 4., which are also referred to and adopted by stat. 2 & 3 Ph. & (1) Case of Flemming and Windham, 2 Leach Cr. C. 996. (2) R. v. Payne, 1 Ld. Ray. 729. (3) Foster. Disc. 337. (4) Radbourne's case, 2 Leach Cr. C. 512. Swan's case, Foster Disc. 106. M. c. 10., M. c. 10., are, "that the justices shall certify the examination taken before them at the next general gaol delivery within the limits of their commission." It often happens that the felon is taken and examined by a magistrate in a county, where the offence was not committed; in such a case, the examinations and informations are to be transmitted into the county, where the felon is indicted, and may there be read in evidence against him, though the magistrate had not original cognizance of the offence. (1) As informations, when judicially and regularly taken, are evidence against a prisoner, if the informant dies before the trial; so, on the other hand, where the informant himself gives evidence, the informations may be used, on the part of the prisoner, to contradict his testimony. One of the objects of the legislature in passing the statutes, was to enable the judge and jury, before whom the prisoner is tried, to see whether the witnesses at the trial are consistent with the account given by them before the committing magistrate (2). Thus, it was admitted in Lord Stafford's case (3), that the depositions of a witness, taken before a justice of peace, might be read, at the desire of the prisoner, in order to take off the credit of the witness, by shewing a variance between the depositions and the evidence given in court vivâ voce. (3) before a coroner. The statute 1 & 2 Ph. & M. c. 13. s. 5. enacts, "that Depositions every coroner upon an inquisition before him found, whereby any person shall be indicted for murder or manslaughter, or as accessary before the murder, shall put in writing the effect of the evidence given to the jury before him, being material; and shall certify the same evidence, together with the inquisition or indictment before him taken and found, at or before the time of the trial thereof to be had." (1) Dalt. Just. c. 111. p. 369. 2 Hal. P. C. 285. (2) See the judgment in Lambe's case, 2 Leach Cr. C.633. (3) 3 St. Tr. p. 131. Hawk. PL. C. b. 2. c. 46. 8. 22. On this statute, it has been resolved unanimously by all the judges, that in case any of the witnesses, who have been examined before the coroner, are dead, or unable to travel, or kept out of the way by the means and contrivance of the prisoner, their depositions may be read on the trial of the prisoner, the coroner first proving, that they are the same which he took upon oath, without any addition or alteration (1). And proof, that the witness has been inquired after and is not to be found, has been thought sufficient to authorize the reading of the depositions (2). The statute requires the coroner "to put in writing the effect of the evidence given to the jury before him, being material;” the true meaning of which appears to be, that he should at least take down the plain and obvious meaning of the words spoken by the witnesses, and not merely to state what, in his judgment, was the result of the evidence. of either of the cases It does not appear from the report above cited, whether the depositions were taken by the coroner in the presence of the prisoner. But it seems to "be the prevailing opinion, that they are admissible, though the prisoner may have been absent at the time of taking the inquisition. A book of authority (3), after stating the general rule, that depositions are not evidence, where there cannot be a cross-examination, adds, by way of exception, "yet, if the witnesses examined on a coroner's inquest be dead or beyond sea, their depositions may be read; for the coroner is an officer appointed on behalf of the public, to make inquiry about the matters within his jurisdiction." And in the case of the King against the Inhabitants of Eriswell (4), (where Mr. Just. Buller, in support of his opinion on the case then before the court, stated, that depositions before a coroner had been long settled to be good evidence, though the person accused be not present when they are (1) Lord Morley's case, Kel. 55. Thatcher's case, 2 Jon. 53. Bromwich's case, I Lev. 180. Gilb. Ev. 124. See ante, p. 277. (2) Adm. per Cur. in Harrison's case, cor. Holt C. J., Atkins J., and Nevil J., taken, |