taken, nor ever heard of them till the moment, when they are produced against him,) Lord Kenyon, who differed from Mr. Justice Buller on the principal question, said (1), that the case, alluded to, was an exception founded on the statute of Philip and Mary. Besides, he added, the examination before the coroner is an inquest of office; it is a transaction of notoriety, to which every person has a right of access; and writs of ad quod damnum have been frequently set aside, for want of this notoriety in the execution of them by the sheriff. To this effect also Lord Hale lays it down (2), that the coroner's inquest must hear evidence on oath as well for the party accused as for the king, if it be offered to them; because the proceeding is not so much an accusation on an indictment, as an inquisition of office to inquire truly, how the party came to his death; and for an omission in this respect, an inquisition of felo de se has been quashed.

An inquisition of felo de se, taken before the coroner Inquisition. super visum corporis, is considered by Lord Coke (3) to be conclusive evidence of the fact, against the executors or administrators of the deceased. But Lord Hale in his Pleas of the Crown (4) is of a different opinion, conceiving it unreasonable, that they should be concluded, and lose the goods of the deceased without an answer, by an inquisition, which may be taken by the coroner behind their backs. And it is now settled that such an inquisition may be removed into the King's Bench, and traversed by the executors and administrators of the deceased. (5)

If it be found by the coroner's inquisition, in case of the death of a person who is not felo de se, that the person, who committed the offence, fled for it, the authorities hold this finding to be conclusive and not traversable; yet, upon

(5) See 1 Saund. 362. note 1. by the Editor, who has there collected the cases on this subject. As to the duty of the coroner in taking an inquest, see stat. 1 H. 8. c. 8.

principle, it should seem as if the one case were as much traversable as the other. (1)

There are various other kinds of inquisition of office, which, if regularly taken, and under a competent authority, will be admitted by courts of law as evidence of the facts there found. Some inquisitions are taken on an inquiry made by the sheriff, or coroner, or escheater, by virtue of their office, or under a writ directed to them for that purpose: others are taken by commissioners, specially appointed to examine witnesses on oath, and inquire into the several matters specified.

An inquisition of lunacy is evidence on the trial of an indictment, to shew that the prisoner was insane, when he committed the offence (2). Such inquisitions are evidence even against third persons, who were strangers to the proceeding. Thus, in a case, where an inquisition of lunacy was offered as evidence to affect the rights of third persons, and objected against as res inter alios acta, Lord Hardwicke overruled the objection, and said that inquisitions of lunacy, and likewise other inquisitions, as post mortem, &c., are always admitted to be read, but not conclusive (3). So an inquisition taken by virtue of a commission which issued in the reign of Queen Elizabeth, under the seal of the court of Exchequer, to commissioners to inquire, whether a prior was seised of certain lands as parcel of a manor, or whether the crown was seised of them after the dissolution of the priory, was adjudged to be good evidence of those facts (4). And an inquisition, taken under an order of the House of Commons, is evidence respecting the fees of certain offices. (5)

(1) See n. (5), ante, 281, and Hawk. b. 2. c. 9. s. 54.

(2) R. v. Bowler, O. B. June 1812, before Le Blanc J. and the present Ch. J. of the Common Pleas, MS.

(3) Sergeson v. Sealey, 2 Atk. 412.

Faulder v. Silk and Another, 3 Campb. 126. See Jones v. White, ante, p.239. (4) Tooker v.D. of Reaufort, 1 Burr.

146.

(5) Green v. Hewett, Peake N.P.C. 184.

Inquisitions, which are extrajudicial or irregularly taken, will not be received in evidence. Thus an inquisition made by a sheriff's jury, for the purpose of ascertaining, who was entitled to the property of goods taken under an execution, is not admissible evidence even against the sheriff, in an action of trover brought by the party, in whose favour the inquisition was found (1). This evidence was received at the trial of the cause by Mr. Justice Buller, who admitted it, but held it not to be conclusive; and, a verdict having been found for the defendants, a motion was afterwards made for a new trial, on the ground, that the inqui sition was conclusive evidence in favour of the plaintiff, as against the person who contested the property with the plaintiff, and who was present at the time of taking the inquisition. But the court refused the application. Ch. J. Eyre said, he doubted whether a sheriff can, strictly speaking, hold any inquisition as to property, except under a writ de proprietate probandâ in replevin. And Mr. Justice Buller said, he thought he ought not to have admitted the evidence at the trial, as the inquisition was not under the king's writ, but merely a proceeding by the sheriff of his own authority.

In order to make an inquisition evidence, the commission, under which it was taken, ought regularly to be proved, or shewn to be lost. But in cases of more gencral concern, such as the minister's return to the commission in the reign of Hen. 8. for inquiring into the value of livings, a copy of the whole record need not be taken, and the commission is of such public notoriety as not to require any proof. (2)

tions.

The general rule, respecting the admissibility of deposi- Examina tions after the death of the witness, is, that they are not evidence, unless they have been taken judicially, and unless

(1) Latkow v. Eamer and Burnett, Sheriff of Middlesex, 2 H. Black.437.

(2) Bull. N. P. 228. Hardcastle v. Sclater, 2 Gwill. 787.

the

ance of the other party (1); or, that he is out of the kingdom, or not amenable to the process of the court (2). In either of these cases, depositions are admissible in evidence. But if the witness himself is in a state to be produced, his depositions cannot be received. The party who wishes to have the benefit of his testimony, ought, if he is able, to bring him forward, that he may undergo an open examination, in the face of the public, before the jury and the court: a mode of inquiry, generally more conducive than any other to the discovery of truth.

When a witness has been examined on interrogatories, and afterwards by accident becomes interested in the thing in question, the court of Chancery has allowed his depositions to be read for him, as evidence in his own suit, on a bill of revivor (3). "This," said Lord Hardwicke, "has been allowed on just reason; because his evidence must be taken, as it stood at the time of his examination, which should not be set aside, unless it could be supplied by other evidence (4)." But a different rule has been established in courts of common law. It was resolved in Tilly's case by the unanimous opinions of the courts of King's Bench and Common Pleas, that a party to an action of ejectment could not give in evidence his own depositions, though he had made them at a time when he was perfectly disinterested. (5)

Depositions are not to be admitted in evidence for a party to the suit, against a stranger, who was not a party, nor claims under either of the parties (6); nor can they be

(1) Bull. N. P. 243.

(2) 1 Atk. Rep. 445. Lord Altham v. Earl of Anglesey, tr. at bar in K. B., Gilb. Eq. Cas. 16. 18.

(3) Goss v. Tracy, 2 Vern. 699. I P. Wms. 287. S. C. Haws v. Hand, 2 Atk. 615.

(4) In Glyn v. Bank of England, 2 Ves. 42.

See

(5) Tilly's case, I Salk. 286. also Holcroft v. Smith, Eq. Cas. Ab. 224; Baker v. Lord Fairfax, 1 Str. 101; Bull. N. P.242.

(6) Hob. Rep. 155. 2 Roll. Ab. 679. pl. 8. 1 Vern. 413, Coke v. Fountain.

used

used by a stranger against one of the parties (1). An exception has been sometimes made in cases where the question is on the existence of a custom or on the right to tolls, or where hearsay and reputation would be good evidence (2); and it has been said, that in such cases depositions may be admitted, though the parties in the two suits are not the same. But, after the opinions expressed by some of the judges in the Berkeley peerage case, respecting depositions in a question of pedigree, there is reason to doubt, whether such evidence would now be considered admissible. (3)

When a bill has been dismissed, the rule respecting the admissibility of the depositions has been laid down with the following distinction. If the bill was dismissed, because the court considered the matter to be unfit for equity to decree, the depositions may still be given in evidence, provided the subject-matter of the suit was regularly before the court, and within its jurisdiction (4). But if the suit in equity be dismissed for the irregularity of the complainant, the depositions in that cause cannot be read in any fresh suit. Thus, where a devisee brings a bill of revivor, on a suit commenced by his devisor, and depositions are taken, and then the cause on the hearing is dismissed, because a devisee, claiming as a purchaser and not by representation, cannot bring a bill of revivor, the devisee will not be allowed, on exhibiting a new original bill, to use the former depositions; for, in the first cause, in which the complainant mistook his remedy, there was no complaint regularly before the court, and consequently there could not regularly be any depositions (5). For the same reason, such depositions would not be admitted as evidence, in a fresh suit at law.

(1) Rushworth v. Countess of Pembroke and Currier, Hardr. 472. Gilb. Ev. 55. See ante, p. 231. 233. (2) Bull. N. P. 239. P.233.

See ante,

(3) See ante, p. 179, 180. and see Banbury Peerage case, ante, p. 263.

(4) Smith v. Veale, 1 Ld. Ray. 735(5) Backhouse v. Middleton and Others, Chan. Cas. 175. Gilb. Ev. 56. Smith v. Veale, 1 Ld. Ray. 735.