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and these examinations being duly taken, certified, and returned, shall be admitted as good evidence in both Houses of Parliament.

§ 362. Though by none of these statutes is the party, who seeks to use the depositions, directed to prove, that the witnesses, at the time of the trial, are beyond the jurisdiction of the Court, it would seem, upon general principle, that some slight evidence of this nature should be given; for although the language of the acts, rendering the depositions evidence, is exceedingly strong, it may well be doubted whether an express enactment would not be necessary, in order to override the long-established rule of law, that if a witness is living within the jurisdiction of the Court, and it is in the power of the party to call him, his deposition cannot be read. This view of the subject is confirmed by the subsequent enactments of 1 Will. 4, c. 22, Eng., and 3 & 4 Vict. c. 105, Ir., which expressly provide that depositions taken under them shall be deemed merely secondary proof.

§ 363. The act of 1 Will. 4, c. 22, after reciting that " great difficulties and delays are often experienced, and sometimes a failure of justice takes place, in actions depending in courts of law, by reason of the want of a competent power and authority in the said courts to order and enforce the examination of witnesses, when the same may be required before the trial of a cause; and further reciting, that it is expedient to extend the powers and provisions contained in the act of 13 Geo. 3, c. 63, enacts, in § 1, "that all and every the powers, authorities, provisions, and matters, contained in the said recited act, relating to the examination of witnesses in India, shall be, and the same are hereby extended to all colonies, islands, plantations, and places, under the dominion of His Majesty in foreign parts, and to the judges of the several courts therein, and to all actions depending in any of His Majesty's courts of law at Westminster, in what place or country soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the Court, to the judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examination of witnesses, under a writ or commission issued in pursuance of the authority hereby given,

344

COMMISSION TO EXAMINE WITNESSES.

will be necessary or conducive to the due administration of justice in the matter wherein such writ shall be applied for" (r). The stat. 3 & 4 Vict. c. 105, contains a precisely similar enactment in § 66, with respect to the superior courts in Ireland, excepting only that, at the place marked above with an asterisk, the words "with reference to all actions in any of Her Majesty's courts of law at Dublin" are introduced; and we notice this, because the omission of corresponding words in the act of Will. 4 has raised a doubt whether that statute does not apply to criminal proceedings in the Court of Queen's Bench, as well as to actions in any of the superior law courts (s). However this may be, it is clear that neither of these acts applies to actions at the suit of the Crown; for the Crown is not bound unless specially named (t). Still less has the Court of Exchequer any power, either by statute or at common law, to direct a commission to issue, on the motion of the defendant, for the examination of witnesses abroad, where the Attorney-General has filed an information for penalties for a breach of the revenue laws (u); neither will the Court stay the proceedings in such a case, until the Attorney-General consents to the issuing of such commission; for it would be obviously most improper for the judges to attempt to affect by indirect means what they have no jurisdiction directly to do (v).

§ 364. The alterations effected by these acts do not rest here; but § 4 of the one, and § 69 of the other, respectively enact, that it shall be lawful for each of the law courts at Westminster or Dublin, and the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham (w), and the several judges thereof, "in every action depending in such court, upon the

(r) The costs of the writ or commission, whether under the act of 13 Geo. 3, c. 63, or of 1 Will. 4, c. 22, or of 3 & 4 Vict. c. 105, and of the proceedings thereon, are in the discretion of the Court issuing the same. See 1 Will. 4, c. 22, § 3, and 3 & 4 Vict. c. 105, § 68.

(s) R. v. Wood, 7 M. & W. 573, per Parke, B.

(t) R. v. Wood, 7 M. & W. 571; 9 Dowl. 310, S. C.

(u) Att.-Gen. v. Bovet, 15 M. & W. 60.

(v) Att.-Gen. v. Bovet, 15 M. & W. 70, 71, per Pollock, C. B.; 73, per Parke, B. (w) § 11 provides that no order shall be made in pursuance of this act by a single judge of the Court of Pleas at Durham, unless he be a judge of one of the law courts at Westminster.

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application of any of the parties to such suit, to order the examination on oath, upon interrogatories or otherwise, before the master or prothonotary of the said court, or other person or persons to be named in such order, of any witnesses within the jurisdiction of the Court where the action shall be depending, or to order a commission to issue for the examination of witnesses on oath at any place or places out of such jurisdiction, by interrogatories or otherwise, and by the same or any subsequent order or orders to give all such directions touching the time, place, and manner of such examination, as well within the jurisdiction of the court wherein the action shall be depending as without, and all other matters and circumstances connected with such examinations as may appear reasonable and just ” (x).

§ 365. It does not fall within the scope of this work to furnish minute directions as to the course to be pursued by parties seeking for a commission under these acts; but a few of the more important decisions may briefly be noticed. The Court will not make an order for the examination of witnesses on interrogatories, until after issue has been joined; for before that step has been taken it cannot be ascertained what witnesses are material, neither is it easy to discover how a false witness can be indicted for perjury (y) but it seems that such an order be made prospecmay tively, with reference to a new trial, in case the verdict already obtained should be set aside (z); and if the witness reside beyond the jurisdiction of the Court, the application should be made as soon as possible after issue is joined (a). The commission may be granted, though the action pending in the Court be merely an issue directed by the Court of Chancery (b); and though it be in the nature of a criminal charge (c); but neither § 4 of

(x) The costs of the rule or order, and of the proceedings thereupon, are to be costs in the cause, unless otherwise directed, either by the judge making the rule or order, or by the judge before whom the cause may be tried, or by the Court. See 1 Will. 4, c. 22, § 9; and 3 & 4 Vict. c. 105, § 74.

(y) Mondel v. Steele, 8 M. & W. 300; 9 Dowl. 812, S. C.

(*) Hall v. Rouse, 4 M. & W. 27, per Parke, B.

(a) Brydges v. Fisher, 4 M. & Scott, 458. But see Weekes v. Pall, 6 Dowl. 462. (b) Bourdeaux v. Rowe, 1 Bing. N. C. 721; 1 Scott, 608, S. C.

(c) Norton v. Melbourne, 3 Bing. N. C. 67; 3 Scott, 398; 5 Dowl. 181, S. C., nom. Norton v. Lamb.

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ON WHAT AFFIDAVITS COMMISSION GRANTED.

1 Will. 4, c. 22, nor the corresponding sect. of the Irish act, will

or to Criminal dufer tions. It is Upton It genards 17 27 apply to indictments (d), or to actions at the suit of the Crown (e), (us, m.c. The affidavit in support of the motion must, except under very special circumstances (f), state the names of at least some of the witnesses proposed to be examined, or otherwise describe who they are (g); though, it seems, that to support a commission from the Court of Chancery, this precision will not be deemed essential, where the pleadings clearly show that the examination of witnesses is necessary (h). It should also state that the witnesses are material (i), though it need not, in general, add, either that their evidence is admissible, or that the application is made bonâ fide, or that the party moving has a good case on the merits (j); but, if the granting the commission would necessarily occasion great delay, the Court, in the exercise of their discretion, would, perhaps, require that the affidavit should point out, not only in what manner the evidence would be material, but also, that it would be admissible (k); and if there was reason to believe that the application was made by the defendant from a sinister motive, the rule would either be discharged, or the Court would order the defendant to bring the money in dispute into Court (1). In a recent case, where the defendant moved for a commission to examine witnesses in New Zealand, the Court refused to interfere, unless an affidavit could be produced from the defendant's attorney, showing that the evidence to be given by the persons proposed to be examined was material and necessary to the defence of the action (m). It must also appear by the affidavit, either that the

(d) R. v. Lady Briscoe, 1 Dowl. 520, per Parke, J.

(e) R. v. Wood, 7 M. & W. 571; 9 Dowl. 310, S. C.

(f) Cow v. Kinnersley, 7 Scott, N. R. 892; 6 M. & Gr. 981, S. C., where the defendant, who required the commission, was an executrix, and was ready to bring the amount claimed into court to abide the event.

(g) Gunter v. M'Tear, 1 M. & W. 201; 4 Dowl. 722, S. C. nom. Gunter v. M'Kear; Beresford v. Easthope, 8 Dowl. 294; Dimond v. Vallance, 7 Dowl. 590; (h) Carbonell v. Bessell, 5 Sim. 636; Rougemont v. Royal Ex. Ass. Co., 7 Ves. 304.

(2) Norton v. Melbourne, 3 Bing. N. C. 67; 3 Scott, 398; 5 Dowl. 181, S. C. (j) Baddeley v. Gilmore, 1 M. & W. 50; Tyr. & Gr. 369, S. C.; Westmoreland v. Huggins, 1 Dowl. N. S. 800.

(k) Lloyd v. Key, 3 Dowl. 253, per Parke, B.

(1) Sparkes v. Barrett, 5 Scott, 402. (m) Healy v. Young, 2 Com. B. 702.

COMMISSION TO EXAMINE WITNESSES ABROAD.

347

witness is out of the jurisdiction of the Court (m); or that he will be so at the time of the trial, being about to leave the country (n); or that he is in such a precarious state of health as to render it highly probable that he will be unable to attend the trial (0).

§ 366. Although in granting a commission to examine witnesses out of the jurisdiction of the Court, it is usual to introduce a clause requiring the commissioners to be sworn, this clause is not essential, and on two occasions it has been actually omitted, where in order to enforce the attendance of witnesses, the commission has been directed to the judges of a foreign court (p). From these cases, as well as from others (q), it is now perfectly clear that, under §§ 4 and 69 of the respective acts of 1 Will. 4, c. 22, and 3 & 4 Vict. c. 105, commissions may be granted to examine witnesses, while resident in countries beyond the dominion of the British Crown. If the witness reside in Scotland or Ireland, application for a commission to examine him must be made under § 4 of 1 Will. 4, c. 22, since the words "foreign parts," used in § 1, do not include those divisions of the United Kingdom (r). The same observation applies where the motion is made in Dublin, and the witness is resident in Scotland or England. The commission usually directs that the witnesses shall be examined upon written interrogatories; but this is a matter for the discretion of the Court, who may order, if they think fit, that the examination and cross-examination be conducted vivâ voce, either wholly or in part (s). In the event of such an order, the questions and answers are reduced into writing, and returned as in ordinary cases. In order to render the depositions taken under a commission available, the commissioners must substantially follow the instructions

(m) Norton v. Melbourne, 3 Bing. N. C. 67; 3 Scott, 398; 5 Dowl. 181, S. C., (n) Pirie v. Iron, 8 Bing. 143; 1 M. & Scott, 223; 1 Dowl. 252, S. C. (0) Abraham v. Newton, 8 Bing. 274; 1 Dowl. 266; 1 M. & Scott, 384, S. C. nom. Abraham v. Norton; Pond v. Dimes, 3 M. & Scott, 161; 2 Dowl. 730, S. C.; Davis v. Lowndes, 6 Scott, 738; 7 Dowl. 101, S. C. In this last case the affidavit of a medical man was required.

(p) Clay v. Stephenson, 3 A. & E. 807; 5 N. & M. 318, S. C.; Ponsford v. O'Connor, 5 M. & W. 673; 7 Dowl. 866, S. C.

(9) Duckett v. Williams, 1 Cr. & Jer. 510; 1 Dowl. 291, S. C.

(r) Wainright v. Bland, 3 Dowl. 653.

(s) Pole v. Rogers, 3 Bing. N. C. 780.