imprisonment in the Mercer Reformatory without the option of a fine.

The prisoner was convicted and sentenced, but respited pending the decision of the point reserved.

November 25, 1882. Osler, Q. C., for the prisoner.—The question is, whether it is sufficiently shewn that the witness was absent from Canada so as to admit of her deposition. It arises under 32-33 Vic. ch. 30, sec. 30. This differs from the English Act, which does not provide for the case of absence. See Regina v. Philips, 1 F. & F. 105.

The learned counsel was here stopped by the Court, and J. G. Scoli, Q. C., for the Crown, called upon. Is there strong evidence of absence? It is submitted there was, and the evidence was admissible. Analogous cases to guide the Court in construing the statute, are Falconer v. Hanson, 1 Camp. 171; Sutor v. McLean, 18 U. C. R. 490; Earl of Falmouth v. Roberts, 9 M. & W. 469.

Osler, Q. C., in reply, cited Taylor on Evidence, 7th ed., sec. 442.

December 9, 1882. HAGARTY, C. J.-The learned Judge submits for our decision the question whether on the evidence given the deposition of the absent witness, Kate Smith, was or was not properly received. The trial was in October last, at Hamilton. The evidence is fully stated in the case.

The witness Ross swore, in substance, that Smith left her last March, and that she had twice since that time heard from her from Malden, near Boston, but not since April 25th. She did not state, nor was she asked, how she had heard. Stated in this shape, and without objection made or explanation sought by prisoner's counsel, I think we must assume it was a fact that she did hear from her. It is also stated that evidence was given by two of the police force of ineffectual attempts to find her "by means of personal enquiries in some places, and correspondence with the police of other cities."

By statute 32-33 Vic. ch. 30, sec. 30, the deposition may be read if it be proved on the oath of any credible witness that the witness is absent from Canada.

I presume this has to be left in the main to the judgment and discretion of the learned Judge whether it is so proved or not. I feel great difficulty in putting myself in his place, and ruling against or in favour of the sufficiency of the proof. "Personal enquiries in some places" are stated to have been made. We cannot say where these enquiries were made, whether in Hamilton, Toronto, or in Malden, Mass. The learned Judge did admit the deposition. He does not say whether he was satisfied or not with the proof offered.

It is impossible for me to say that he was wrong in admitting it as he did. The enquiries made may have been satisfactory.

The statute was passed to prevent the obstruction of justice by the absence of witnesses beyond the reach of the process of the Court. The facts of this case are peculiar, and accordingly as they struck the mind of the Judge, as presented to him at the trial, may have satisfied him as to the absence.

I do not think that as to the limits and precise nature of such an enquiry we can lay down any hard and fast rule. I cannot say that sufficient evidence was not given of such absence in the statements in the case reserved.

In Regina v. Wellings, L. R. 3 Q. B. D. 42, the Judge allowed a deposition to be read on the ground of the witness, in the words of the Act, " being so ill as to be unable to travel." The evidence given was reported in full. The Court of Queen's Bench held it sufficient, Lord Coleridge adding: “It is in each case a matter for the presiding Judge to determine. The presiding Judge has in this case decided that the evidence was sufficient to satisfy him that 'the deponent was so ill as to be unable to travel;' and we see nothing to lead us to the conclusion that he was wrong." The Imperial Statute 11 & 12 Vic. ch. 42, sec. 17, is worded as our Act, the latter having the additional clause, "or is absent from Canada."

The same rule as to the Judge's discretion is laid down in Regina v. Stephenson, L. & C. 167. Sir W. Erle, C. J., says: "We are all of opinion" (on a case reserved) "that the question, whether the illness proved is or is not within the statute, is a question for the determination of the presiding Judge; and that if to his mind, exercising his discretion upon the facts proved, the evidence of illness is sufficient, this Court ought not to interfere with his decision. Speaking for myself only, I may add that, in my opinion, the Court of Quarter Sessions acted rightly in receiving the deposition:" Arch. Crim. Ev., 19th ed., (1878,) 275; Roscoe, 8th ed., 1874.

ARMOUR, J., concurred.

CAMERON, J.-On the question of the admissibility of depositions of a witness taken before a magistrate, the authorities are neither consistent nor satisfactory. As to what would constitute proof of the absence of a witness from Canada, there has not, as far as I am aware, been any previous decision in our own Courts, and as there is no similar provision in the Imperial statute permitting the reception of depositions in evidence, we cannot look for direct assistance from English authority. The Imperial Act only authorizes their admission in two cases, namely, death of the witness, or his being too ill to travel. In this Province there is the additional case of absence from Canada.

The Imperial Act requires that the death or illness of the witness shall be proved upon the oath or affirmation of a credible witness, and in England it wou'd seem that the fact of the death or illness need not be directly vouched for by a credible witness if it may be reasonably inferred from the circumstances or facts sworn to, and the sufficiency of these facts must be decided by the Judge at the trial, in whose discretion rests the admission or rejection of the deposition. Leaving the admission or rejection of the evidence a matter of discretion appears to me to be

highly unsatisfactory, and leads to wholly inconsistent and irreconcilable decisions, making the administration of justice, which ought to be reasonably certain and based upon well defined principles, precarious, and perhaps it would not be too strong to say whimsical. The following decisions on the admissibility of the depositions in cases of the alleged inability of the witness to travel through illness will illustrate what I mean:

Regina v. Harris, 4 Cox C. C. 440, was a case before the Common Serjeant. A witness being absent, it was proved that she had come up from Hounslow and had gone before the grand jury on the first day of the session that she went back at night and returned in the morning for two days, expecting the trial to come on, but that on the morning of the trial she had been seized with a bowel complaint, and when the policeman left Hounslow she was unable to travel.

The Common Serjeant." I do not think I should be justified in admitting this deposition. I am not satisfied that the witness is so ill as to be unable to travel."

Regina v. Harney, 4 Cox C. C. 441, was a case before Mr. Commissioner Gurney. During the trial it appeared that a material witness for the prosecution had been delivered of a child a week before, and she was at the time of trial unable to travel. Mr. Commissioner Gurney: "I do not see how I can shut out this evidence. It appears to me that every requisition of the Act of Parliament is complied with. I find that at the time of trial the witness is too ill to travel. That is proved substantially; and we have the fact, (which itself would be almost conclusive,) that she was confined only a week ago."

Regina v. Ulmer and Hooper, 4 Cox C. C. 442, was before the Common Serjeant. Homewood, a witness, had been examined before the magistrate. At the trial a constable made the following statement: "I saw Homewood last night about nine o'clock; he was in bed. I believe he is not well enough to be here to-day. He has had a cold and inflammation. I saw a medical man call upon

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him a day or two ago. I believe he has been in bed two or three days. I saw him about ten o'clock three days ago in the tap room, and I believe he then went to bed. He was sitting up and was unable to stand. He appeared very unwell indeed. I enquired this morning and heard he was very bad."

The Common Serjeant: "I cannot say that my mind is convinced by this evidence that the witness is not now able to travel."

Regina v. Welton, 9 Cox C. C. 296, was before Byles, J. The evidence as to illness of the witness, was that of Thomas Harris, P. C.: "I know police constable Samuel King, and saw him this morning in his bed. He has fever. I have a certificate here. He has been confined to his bed about a fortnight, and the divisional surgeon, Mr. Tenby, is attending him. He is not able to get up yet."

Byles, J. "Do you know of your own knowledge that he has been confined to his bed a fortnight?" Answer"No; only from what somebody has told me. I saw him this morning, and yesterday morning; he was in bed. I had not seen him till yesterday since he has been ill."

Byles, J.: "I am of opinion, that to make this deposition admissible, there should be the evidence of a medical man upon oath, or other evidence upon oath, which the Court might think of equal value to sworn medical testimony. The constable, Harris, says he has been told King is suffering from fever. How can he know the illness is of such a nature as to render the witness 'so ill as not to be able to travel?' A medical man is the proper witness of that fact, and no medical man is called. The deposition cannot be read."

In Regina v. Williams, 4 F. & F. 515, the superintendent of police stated that he had seen the witness whose deposition was tendered in evidence, a policeman, on Monday, the trial being on Wednesday, in bed, and that he appeared to him to be ill, and when he tried to get out of bed he could not stand; but he was unable to state what was the matter with him, except that he believed it to be rheumatics. No