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he is likely to be unable to attend the trial, owing to approaching dissolution, or permanent infirmity; the courts have power to grant a commission to examine such witness, either in Great Britain or abroad, at any time after the commencement of the action or suit ;1 and to permit his written deposition, as certified by the commissioner, to be read in evidence at the trial, on proof that the deponent is at that time beyond the jurisdiction of the court, or dead, or unable from permanent sickness, or other permanent infirmity, to attend the trial.
The foundation of this privilege is in the 13 Geo. 3, c. 63, s. 40, which permitted the prosecutor or defendant, in all indictments or informations for offences committed in India, to apply for and obtain a writ of mandamus to the superior judges in India, directing them to take, in due form of law, the statements of witnesses within their jurisdiction concerning the offence; and to return them in the form of signed and sealed depositions to the King's Bench. A similar privilege was given in actions and suits commenced in England: (s. 44.)
The 1 Will. 4, c. 22, taking this act as its basis, extended its provisions substantially "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 at Westminster, in what place or county 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 of commission may be directed, or elsewhere." By the 2nd section the colonial judges are empowered to enforce the attendance of witnesses in such cases in the same way as if the action or suit had arisen within their jurisdiction.
The 4th section empowers the courts at West
1 Fynny v. Beasley, 20 L. J. 395, Q. B.
minster, "and the several judges thereof, in every action depending in such court, upon the 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 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 connected with such examination as may appear reasonable and just.”
By section 5, witnesses within the jurisdiction may, by order of the court or of a judge, be summoned to attend the commission, and be attached for nonattendance. By section 7 the commissioner is authorized to administer an oath to the witness, or an affirmation in cases where the law permits it in substitution; and the witness is subjected to the penalties of perjury for giving evidence falsely: (see also 6 & 7 Vict. c. 83, s. 5.) And by s. 10 it is enacted:
"That no examination or deposition to be taken by virtue of this act shall be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant " (query examinee)" or deponent is beyond the jurisdiction of the court, or dead, or unable from permanent sickness, or other permanent infirmity, to attend the trial; in all or any of which cases the examinations and depositions, certified under the hand of the commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of signature to such certificate, be received and read in evidence, saving all just exceptions."
By 19 & 20 Vict. c. 123, the judges of the superior courts have power to order an examination on interrogatories or viva voce of persons whose evidence is required by a foreign court for the purpose of settling civil or commercial disputes pending before foreign tribunals. And by 22 Vict. c. 20, the same judges have power to order the examination similarly of witnesses within their jurisdiction, concerning suits and proceedings before any courts in her Majesty's foreign dominions.
Books of practice will be consulted as to the circumstances under which the court will grant a commission.1 Generally, it may be observed that either plaintiff or defendant, after the commencement of the action, may apply for a commission; 2 but the courts will not grant it as a matter of course, lest it should lead to parties going abroad to avoid cross-examination at trial; and they will require the applicant to satisfy them, on affidavit, that it will conduce to the due administration of justice for the commission to issue. Accordingly, mere residence beyond the jurisdiction of the courts is insufficient, if it appear that the witness could attend at trial.3
The commission may issue to any one whom the court may appoint, even to the judges of a foreign court, if such judges are willing to act: 4 and it will be no objection to the commission issuing, that it appears that they will examine the witnesses on principles which are not recognized by the English law of evidence ; but if it should appear at trial, either on the face of the depositions, or from extrinsic evidence, that inadmissible statements, hearsay for instance, have been received by the commissioners, the whole depositions will be rejected; or, at all events, such
1 See Chitty Stat. vol. 1, 1121, notes.
portions as are inadmissible according to the English law.1
The courts will not grant a commission to examine witnesses in a hostile country, although there be an open communication with it.2
The order must state the place to which the commission is directed, and the names of the commissioners, where the examination is within the jurisdiction of the court; but the last requisite is dispensed with, where the commission is directed to a foreign country.3 It should also state the mode in which the examinations are to be taken and returned.4. The examinations should also purport on the face of the depositions to have been taken on oath, where the witnesses can be sworn; but it appears to be only necessary to bring their evidence within the principles of Omichund v. Barker.5
The party to be prejudiced by the deposition must have had an opportunity of being present at the examination, and of cross-examining the witness.6 It appears, also, that he should have bad formal notice that the commission was to be applied for or issued." But the opposite party may put in the depositions, as the witnesses are examined as much for one side as the other.8 The cross-interrogatories must also be read, as well as the interrogatories in chief, by the party who makes the latter his evidence."
The depositions cannot be read if the deponent be in the country, and producible at the trial. Hence, when they are tendered on the ground of his being beyond the jurisdiction of the court, this fact must be
1 Lumley v. Gye, 23 L. J. 112, Q. B. 2 Barrick v. Buba, 25 L. T. 164.
3 Grevillo v. Stulz. 17 L. J. 14, Q. B.
4 Atkins v. Palmer, 4 B. & Ald. 377.
5 Bolin v. Mellidew, 20 L. J. 172, C. P.; supra, p. 25.
6 Attorney-General v. Davison, M'Clel. & Y. 160.
7 Steinkeller v. Newton, 9 C. & P. 317.
8 Proctor v. Lanison, 7 C. & P. 629.
9 Temperley v. Scott, 5 C. & P. 341.
proved satisfactorily. Thus, where it only appeared that the deponent was a sailor, and had belonged some months previously to a vessel lying in the Thames, but it did not further appear what had become of the man or the vessel, Lord Ellenborough thought the proof that the former was beyond the jurisdiction of the court too vague, although he was disposed to have admitted the deposition, if it had been shown that any efforts had been recently made to find the deponent. 2 But where a witness proved that he had seen the deponent start by railway to Gravesend, where the vessel lay in which he was to sail to Australia, and that he had received letters from the deponent, dated from two places on the English coast, where the vessel was known to have touched, it was held sufficient proof that the deponent was out of the jurisdiction of the court.3 But where it appeared in a similar case that the deponent was on board the night before the trial, and expecting to sail immediately, this was held insufficient.4
In like manner, when the deponent is dead or absent from sickness, the death or the nature of the malady must be distinctly shown. It has been doubted whether pregnancy, and generally whether temporary illness, will excuse non-attendance ;5 but it is probable that, although the statute requires that the illness should be permanent, the cases on this head will be held as coming within the principles which regulate the admissibility of depositions in criminal cases.6
The provisions and machinery of the 1 & 2 Will. 4, c. 22, are, by the 17 & 18 Vict. c. 125, ss. 47 to 57, extended to cases in which a party to an action wishes to obtain, before trial, an inspection of documents which are in the hands of an opposite party. It is unnecessary to do more than refer to this act here.
1 Robinson v. Marks, 2 M. & R. 375.
5 Abraham v. Norton, 7 Moore & S. 384.
Supra, p. 301.