Note to cognizance to attend at the trial and give evidence, see secSect. 16. tion 20, post.

Service of summons.

How when

gaol.

A summons for the attendance of a witness is served personally, or, if that cannot be effected, by being left with some person, as his wife or servant, or other adult member of his family, at his last known place of abode; and a witness cannot refuse to attend on being summoned or subpoenaed until his expenses are paid. Rex v. James, 1 C. & P. 322.

By section 9 of 16 & 17 Vict. c. 30, the secretary of state witness is in or any judge of the Queen's Bench, Common Pleas, or Exchequer, upon application by affidavit, may issue a warrant or order for bringing up any prisoner confined in any gaol or under any sentence, or under commitment for trial or otherwise (except under process in any civil action, suit, or proceeding), before any court of justice, to be examined as a witness in any cause or matter, civil or criminal.

Swearing witnesses.

As to the examina

nesses.

A witness cannot be sworn unless he have a religious belief, and no one can give evidence without being sworn unless he belongs to one of the classes for whom special provision is made by the legislature. Maden v. Catanach, 7 Jur. (N.8.) 1107.

17. In all cases where any person shall appear or tion of wit- be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended, with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (M.) on oath or affirmation of those who shall know the facts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined,

Justice to

and shall be signed also by the justice or justices Sect. 17. taking the same; and the justice or justices before whom any such witness shall appear to be examined administer as aforesaid shall, before such witness is examined, affirmation. administer to such witness the usual oath or affirma

oath or

of persons

died, or who

may, in cer

be read in

tion, which such justice or justices shall have full power and authority to do; and if upon the trial of Depositions the person so accused as first aforesaid, it shall be who have proved, by the oath or affirmation of any credible are absent, witness, that any person whose depositions shall tain cases, have been taken as aforesaid is dead, or so ill as not evidence. to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same.

taken.

Under this section the mode of proceeding in the examina- Examination of witnesses is the same in all indictable offences, tion of witwhether they be treason, felony, or misdemeanors, and wher- nesses, how ever they may be committed, whether in England, on the high seas, or beyond the seas. The examinations must be taken in the presence of the prisoner after the witnesses have been sworn or have made an affirmation,-be reduced into writing, and read over to the witness, and be signed by him and also by the justice before whom they were taken; and no question or answer can be inserted on the depositions unless it be asked and the answer given in the presence of the prisoner.

It would be always desirable when a person of weak intellect is examined before a magistrate in a case of felony, that the magistrate's clerk should take down in the depositions

Note to the questions put by the magistrate and the answers given by Sect. 17. the witness, as to the witness's capacity to take an oath. Reg. v. Painter, 2 Car. & K. 319, per Wilde, C. J. See also Reg. v. Johnson, 2 Car. & K. 355.

How if an

up.

In a case tried before Mr. Justice Hannan at the Hampalibi be set shire Assizes it was sought to prove an alibi, and it appearing that the witnesses called for the purpose had not been examined before the magistrate, the learned judge remarked: "In such cases it was a grievous mistake that these witnesses were not called before the magistrates; and the attorney engaged in the defence acted very wrongly in not calling them, as it left their evidence open to grave suspicion."Vide Law Times, 12 March, 1870, page 367.

Caption.

Right of prisoner to compare

The depositions of each witness should have a separate caption, showing on what charge it was taken, otherwise it will be inadmissible in evidence. Reg. v. Newton, 1 F. & F.

641.

The prisoner has a right to compare the written deposi tions with the verbal statements of the witnesses; and theredepositions. fore in Reg. v. Christopher, 19 L. J. R. (N.s.) 103, M. C.; 14 J. P. 83, in which the prisoner being charged with felony before a magistrate, minutes of the examination and of the examination of the witnesses were taken in writing under the inspection of the magistrate,-these minutes were taken to the magistrate's office to a clerk, who proceeded to draw up the depositions,-the witnesses attended at the office, and the clerk in order to make the depositions complete, put questions to the witnesses and inserted their answers in the depositions, neither the magistrate nor the prisoner being present, the depositions having been so written out the witnesses again appeared before the magistrate, and in the presence of the prisoner were resworn, and the depositions were read over to them, and a full opportunity was given for examination before the depositions were signed by the witnesses, it was held that the counsel for the prisoner was entitled without putting in the depositions to ask a witness whether he had made a certain statement to the clerk in answer to a question put by the latter in the course of writing the depositions, although, according to the evidence, the answer would have appeared on the depositions.

Reading depositions before jury

The word "trial," as used in the sentence, "if upon the trial of the person so accused," coupled with the word "prosecution" in the latter part of the sentence, shows that it was intended that the depositions might be read as evidence before the grand jury; and therefore the deposition of a witness who is too ill to travel to attend at the trial of a prisoner may be read as evidence before the grand jury as well as

before the petit jury, by virtue of this section. Clements, 20 L. J. R. (N.s.) 193 M. C.; 15 J. P. 338.

Reg. v.

If the deposition of a witness on a charge for an indictable offence has been regularly taken before a magistrate, and at the time of trial the witness is dead, or so ill as not to be able to travel, the deposition may be read as evidence against the prisoner. So also if it be proved that the witness is kept away by the prisoner's procurement. Such deposition however is not admissible on the ground merely that the prosecutor, after using every possible endeavour, cannot find the witness. Again, if procurement of the absence be shown, and there are several prisoners, the deposition is evidence against those only who are proved to have procured the absence. Reg. v. Scaif, Smith and Rooke, 17 A. & E. 238; 20 L. J. R. (N.S.) M. C. 222; 2 Den. C. C. 281; 15 J. P. 581.

Note to Sect. 17.

Admis

sibility of

This section merely specifies two cases in which the depositions may be admitted in evidence without the attendance depositions of the witnesses; and the case of a witness abroad is not one in evidence. of those cases. Therefore a deposition taken before a magistrate on a charge of felony against a prisoner cannot be read in evidence against him on his trial, merely because the witness is absent and resident in a foreign country. Reg. v. Austin, 25 L. J. R. (N.s.) M. C. 48; 20 J. P. 54; 1 Dears. & Bell, C. C. 612. But per Coleridge, J., the statute is not to be taken as limiting the admissibility of depositions to the cases mentioned in it, for it merely specifies two cases. There may be many other cases. Ib.

The deposition of a witness taken on one charge may be used in an indictment for another, as in Reg. v. Beeston, 24 L. J. R. M. C. (N.S.) 5, where the prisoner was charged before a magistrate with wounding A. with intent, &c., and A.'s deposition was taken; A. afterwards died of the wound, and the prisoner was indicted for his murder; when it was held that on the trial for the murder the deposition of A. might be read in evidence, as, although it was not on the same technical charge, it was taken in the same case, and the prisoner had had a full opportunity of cross-examination.

As to the deposition of an absent witness who is ill, see Reg. v. Mark Cockburn, 3 Jur. (N.S.) 447; 26 L. J. R. (N.S.) M. C. 136; 21 J. P. 358; 1 Dears. & Bell, C. C. 203; 7 Cox, C. C. 265. In that case it was held that the deposition of a witness who has an attack of paralysis, and is unable to hear or speak, or give evidence, might be received, though it would not endanger his life to travel or to be brought into the court.

But in a case reserved it was held that the deposition of a witness ought not to have been received under 11 & 12 Vict.

Note to Sect. 17.

Signature of depositions.

Admissibility of depositions in evidence.

c. 42, s. 17, under the following state of circumstances: The deposition, properly taken before the committing magistrate, with full opportunity of cross-examination by the accused, was allowed to be read at the trial under the following circumstances in the absence of the witness who was alive. It was proved by a medical man that the witness was seventyfour years of age, and that he thought that she would faint at the idea of coming into court, and that seeing so many faces would be dangerous to her, and that she was so nervous that it might be dangerous to her to be examined at all, but that he thought she could go to London to see a doctor without difficulty or danger. Reg. v. Farrall, 30 L. T. (N.S.) 404; 38 J. P. 390; L. R. 2 C. C. R. 116.

Where a prisoner is charged before a magistrate with obtaining money by false pretences, and is afterwards indicted for uttering a forged promissory note, the charges arising out of one and the same transaction, and being, in fact, identical, and the prisoner having had the opportunity of cross-examination before the magistrate, the deposition of a witness, taken at such hearing, and who was afterwards unfit to travel to give evidence, was held admissible and might be read at the trial for uttering the forged promissory note. Reg. v. Jenkin Williams, 12 C. C. C. 101.

It is the magistrate's duty when the deposition has been made and signed by the witness, to put his signature to it, and to do so as each deposition is made. Per Lord Denman, C. J., in Ex parte Joshua Fletcher, 13 L. J. (N.s.) M. C. 70; 8 J. P. 854; and it is sufficient if the signature of the committing magistrate be attached to the conclusion of the depositions of the several witnesses in the form in schedule M. of 11 & 12 Vict. c. 42, and his signature need not be subscribed to the depositions of each witness separately. Reg. v. Wm. Parker, 21 L. T. (N.S.) 724; 39 L. J. M. C. 60; 39 J. P. 148; 11 C. C. C. 478; W. N., 1870, p. 24; he however must sign the deposition of a witness at the foot of such deposition. Reg. v. Richards, 4 F. & F. 860.

A witness, who had been examined before the justices, came up five miles from the country, and gave her evidence before the grand jury. She went back at night and returned in the morning for two days, during which she was waiting for the trial to come on. At the trial, on the third day, it was proved that she had been attacked that morning with a bowel complaint, and that when the police left her residence on that day she was unable to travel. Held, that her deposi tion was not admissible. Reg. v. Harris, 4 Cox, C. C. 440.

A witness, who had been examined before the justices, was proved at the trial to have been in bed the night before with