338 DEPOSITIONS TAKEN IN BANKRUPTCY, WHEN ADMISSIBLE.

this state of facts could scarcely exist, unless, perhaps, in the single instance of a witness being made by the landlord tenant of premises, which the latter was seeking to recover in ejectment, it is needless to discuss the question further in the present work.

§ 357. Besides those cases, in which the admissibility of secondary proof of oral testimony is found to rest upon the ordinary principles of common law, the legislature has, in a few instances, expressly provided, that certain depositions should, under particular circumstances, be received in evidence (a). Thus, the late statute for the amendment of the law of bankruptcy (b) enacts, in § 25, that, in the event of the death of any witness deposing to the petitioning creditor's debt, the trading, or the act of bankruptcy, under any fiat, his deposition, purporting to be sealed with the seal of the Court of Bankruptcy, or a copy thereof purporting to be so sealed, shall in all cases be receivable in evidence of the matters therein contained; and the old act of 6 Geo. 4, c. 16, enacts, in § 92, that, if the bankrupt, being within the United Kingdom, shall not within three months, or, being out of the kingdom, shall not within twelve months, after the adjudication, have given notice of his intention to dispute the commission, and have proceeded therein with due diligence, the depositions respecting the petitioning creditor's debt, and the trading and act of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions or suits by the assignees for any debt or demand, for which the bankrupt might have sustained any action or suit (c). It seems that these last provisions are still in force, notwithstanding the more modern statutes on the subject, and that the depositions will be admissible, though the witnesses are not dead (d).

§ 358. Again, the Irish act of 50 Geo. 3, c. 102, after the humiliating recital, that men, who have given information against persons accused of crimes in Ireland, have been murdered before the trial, in order to prevent their giving evidence, and to effect the acquittal of the accused, enacts (e), that if any person,

(a) See 6 & 7 Vict. c. 34, § 4.

(b) 5 & 6 Vict. c. 122. See also 2 & 3 Will. 4, c. 114, §§ 7, 9.

(c) See Hare v. Waring, 3 M. & W. 362; Alsager v. Close, 10 M. & W. 576. (d) Clark v. Mullick, 3 Moore P. C. R. 281.

(e) $5.

EXAMINATIONS OF WITNESSES, WHEN ADMISSIBLE.

339

after giving information or examination upon oath against any person for any offence, shall, before the trial, be murdered or violently put to death, or so maimed, or forcibly carried away and secreted, as not to be able to give evidence on the trial, his information or examination shall be admitted in all courts of justice in Ireland, as evidence on the trial; provided, (and this is a remarkable proviso, since it differs from the ordinary rule of law on this subject) (f), that the information or examination of a witness secreted, shall not be evidence, unless it shall be found on a collateral issue, to be put to the jury trying the prisoner, that he was secreted by the person on trial, or by some person acting for him, or in his favour. By the subsequent stat. 56 Geo. 3, c. 87, § 3, informations or examinations, under similar circumstances, and after similar proof, are rendered receivable in evidence before the grand jury. Again, the Mutiny Act provides (g), that any justice, within whose jurisdiction any soldier having a wife or child shall be billeted, may summon him, and take his examination in writing upon oath, touching the place of his last legal settlement, and the justice shall give an attested copy of the examination to the person examined, to be by him delivered to his commanding officer, to be produced when required; and the examination and attested copy shall at any time be admitted in evidence as to such last legal settlement, before any justice, or at any sessions, although the soldier be dead or absent from the kingdom. A somewhat similar clause is inserted in the Marine Mutiny Act, but in order to give the justice jurisdiction, it is not necessary that the marine should have a wife or child (h).

§ 359. The preceding observations have been confined to cases where the oral testimony has been given, either in some different suit, from that in which the secondary evidence is tendered, or in a different stage of the same legal proceedings; but it now becomes necessary to advert to several acts of Parliament, which have entrenched upon the common-law rule, requiring the examination of witnesses vivâ voce in the presence of the jury, and which have, under certain circumstances, substituted for such examination the depositions of witnesses who have been previously examined in the

(f) Ante, § 21. (g) 10 & 11 Vict. c. 12, § 96. (h) 10 & 11 Vict. c. 13, § 88.

340

EXAMINATIONS TAKEN IN INDIA.

cause. The first Act relative to this subject was passed in 1773 (i), and, by the 40th sect. provides, that in all cases of indictments or informations, laid or exhibited in the Court of Queen's Bench for misdemeanors or offences committed in India, it shall be lawful for the said Court, upon motion to be made on behalf of the prosecutor (j) or defendant, to award a writ of mandamus, requiring the chief justice and judges of the Supreme Court of Judicature at Calcutta, Madras, or Bombay (k), to hold a court, with all convenient speed, for the examination of witnesses, and receiving other proofs concerning the matters charged in such indictments or informations; and, in the mean time, to cause such public notice to be given of the holding of the said court, and to issue such summons or other process as may be requisite for the attendance of the witnesses, agents, or counsel of the parties, and to adjourn, from time to time, as occasion may require; and such examination shall be publicly taken vivâ voce in the said court, upon the oaths of witnesses, and the oaths of skilful interpreters, administered according to the forms of their several religions; and shall, by some sworn officers of the court, be reduced into writing on parchment, in case any duplicates shall be required on behalf of any of the parties interested, and shall be sent to the Court of Queen's Bench closed up, and under the seals of two or more of the judges of the said court, and one or more of the said judges shall deliver the same to the agents of the parties requiring the same; which agents, or in case of their death, the person into whose hands the same shall come, shall deliver the same to one of the clerks of the Court of Queen's Bench, in the public office, and make oath that he received the same from the judges in India, or if the agent be dead, in what

(i) 13 Geo. 3, c. 63.

(j) If the Att.-Gen. move for the rule, his statement that it will be necessary is sufficient, without any affidavit. R. v. Douglas, 2 Dowl. N. S. 416.

(A) The act, after mentioning the Supreme Court at Fort William or Calcutta, directs that the writ shall be addressed "to the judges of the Mayor's Court at Madras, Bombay, or Bencoolen, as the case may require;" but subsequent acts have constituted supreme courts of judicature at Madras and Bombay, and have transferred to them the powers, &c., formerly exercised by the now abolished Mayor's Courts. See 39 & 40 Geo. 3, c. 79, §§ 2, 4, 5; 6 Geo. 4, c. 85, § 20; 4 Geo. 4, c. 71, §§ 7-17. Bencoolen, or Fort Marlborough, which was at one time the chief establishment of the East India Company in Sumatra, was, together with all the other settlements in that island, delivered up to the Dutch in the year 1825. See 1 Hamilton's East India Gazetteer, 172.

DEPOSITIONS TAKEN IN INDIA.

341

manner the same came into his hands; and that the same has not been opened or altered since he received it, (which oath the clerk in court is required to administer); "and such depositions, being duly taken and returned according to the true intent and meaning of this act, shall be allowed and read, and shall be deemed as good and competent evidence, as if such witness had been present, and sworn and examined vivâ voce at any trial for such crimes or misdemeanors" in the Court of Queen's Bench; "and all parties concerned shall be entitled to take copies of such depositions at their own costs and charges."

§ 360. Sect. 42 enacts, that, in all proceedings in Parliament touching any offences committed in India, the Lord Chancellor or Speaker of the House of Lords, and also the Speaker of the House of Commons, may issue their warrants to the Governor-General and Council, or to the chief justice and judges of the Supreme Court of Judicature at Calcutta, Madras, or Bombay (), for the examination of witnesses; and such examination shall be returned to the Lord Chancellor or Speakers respectively, and proceeded upon as if the directions contained in sect. 40 were again repeated; and the examination, so returned, shall be deemed good evidence, and shall be allowed and read in the respective Houses. Sect. 45 provides, that no depositions returned by virtue of this act shall be given in evidence, in any capital case, other than such as shall be proceeded against in Parliament. Sect. 44 enacts, that, whenever the East India Company or any person shall commence any action or suit, in law or equity, for which cause hath arisen in India (m), against any other person, in any of the Courts at Westminster, such courts respectively (n) may, upon motion, award such writ in the nature of a mandamus or commission as aforesaid, to the chief justice and judges of the Supreme Court of Judicature at Calcutta, Madras, or Bombay (0), for the examination of witnesses; and such examination, being duly returned, shall be allowed and read, and be deemed good evidence, at any trial or hearing between the parties in such cause or action, as if the directions prescribed in § 40 were again repeated.

(7) See n. (k), ante.

(m) See Francisco v. Gilmore, 1 B. & P. 177. (0) See n. (4), ante.

(n) Savage v. Binny, 2 Dowl. 643.

342

DEPOSITIONS TAKEN IN THE COLONIES.

§ 361. The provisions contained in § 40 of this statute were re-enacted in §§ 78 and 28 of the respective acts of 24 Geo. 3, c. 25, and 26 Geo. 3, c. 57, which regulate the trial of British subjects, who, while employed in India under the Crown or the East India Company, shall have been guilty of extortion or other misdemeanors; and a clause, substantially the same, though varying in some of the minute details, has been introduced into the act of 42 Geo. 3, c. 85 (p), which authorises the Court of Queen's Bench, in England, to try any person employed in the public service abroad, who, in the exercise, or under colour, of such employment, shall have committed any offence. By $3 of this act, as also by § 81 of 24 Geo. 3, c. 25, the Court of Queen's Bench is further empowered, on motion to be made by the Attorney-General, prosecutor, or defendant, to order an examination de bene esse of witnesses upon interrogatories, in any case where the vivâ voce testimony of such witnesses cannot conveniently be had, to be taken before an examiner appointed by the Court; and the depositions taken thereupon shall be read, and deemed sufficient evidence, upon the trial of the indictment or information, or in any subsequent proceedings relating thereto, saving all just exceptions to be taken to the same, when they shall be offered to be read. The legislature has also, by the late act of 6 & 7 Vict. c. 98, § 4, extended the provisions contained in 13 Geo. 3, c. 63, § 40, to all indictments or informations laid or exhibited in the Court of Queen's Bench, for misdemeanors or offences committed against the acts passed for the suppression of the slave trade, in any places out of the United Kingdom, and within any British Colony, settlement, plantation, or territory; while, by the act of 1 Geo. 4, c. 101, the Speaker of either House of Parliament is authorised, upon the petition of any party praying for a bill for the dissolution of any marriage, to issue his warrant to the judges of the Supreme Courts at Calcutta, Madras, Bombay (q), or Ceylon, for the examination of witnesses;

(p) § 2. See as to mode of proceeding under this sect., R. v. Jones, 8 East, 31, where the Court held, that, to entitle a defendant to have his trial put off till the return of the writ of mandamus, he must state, by affidavit, such special grounds as will lead the judges to believe that the witnesses sought to be examined are really material for the defence. (9) See n. (k), ante.