is alive are not evidence per se, but may be used by him for the purpose of refreshing his memory (a).

In connection with this subject it may be observed that Ord. 33, r. 3, of the R. S. C., 1883, provides that, where an account is directed to be taken, the court may direct that, in taking the account, the books of account in which the accounts required to be taken have been kept, shall be taken as primâ facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. This is a similar power to that conferred on the Court of Chancery by 15 & 16 Vict. c. 86, s. 54 (b). The same principle is adopted for equity proceedings in county courts by rule 4 of Order 24 of the County Court Rules, 1889.

(a) R. v. Worth, 4 Q. B. 139. (b) The power was exercised in Banks v. Cartwright, 15 W. R. 417,

in the case of books of account kept by trustees to which the beneficiaries had access.

CHAPTER XV.

EVIDENCE OF STATEMENTS BY DECEASED OR
ABSENT WITNESSES.

On the general principle by which hearsay or secondhand evidence is inadmissible evidence, the statements of witnesses at former trials are not generally received, but there is a large exception to this principle, which is contained in the rule that

In a matter between the same parties, the statements of a witness at a former trial, or in a former suit, may be used on a subsequent trial, if the witness be dead; or if he be sought and cannot be found; or if he has been subpoenaed and has fallen ill on the way.

The matter in issue must be the same, and the statements cannot be given in evidence against any person who was not party or privy to the proceedings (a); the reason being that he had not liberty to cross-examine the witness.

The general rule was once stated thus by Mansfield, C. J.:-"What a witness, since dead, has sworn upon a trial between the same parties may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given" (b).

(a) Lady Llanover v. Homfray, L. R., 19 Ch. D. 224.

(b) Mayor of Doncaster v. Day, 3 Taunt. 362.

The same rule applies if a witness be kept away by collusion, or other improper means. Thus, in an old case, where a witness was sworn in a trial in the C. B., and was subpoenaed by the defendant to appear at a subsequent trial in the K. B., but did not appear; persons were admitted to prove what his evidence was at the first trial, because the court conceived there was reason to presume that he was kept away by the petitioner (c). It appears, however, doubtful whether every species of mere subsequent incapacity will let in evidence that has been given at a former trial (d).

If one party gives evidence from a former trial to show that a verdict was improperly obtained, the other party may rebut it by proof of other evidence given at the first trial, although the second trial is not between the same parties nor as to the same rights (f). On a new trial of an issue out of Chancery, oral evidence of the statements at a former trial of a deceased witness was received, although the Master of the Rolls had made an order for reading the depositions in equity of such witnesses as had died since the first trial (g).

In order to render a deposition of a deceased or absent witness admissible, it must appear that it was taken on oath in a judicial proceeding in some cause, and that the party to be affected by it had an opportunity to cross-examine the witness (h). In actions of ejectment brought against the same person, and involving the same title, the evidence of a deceased witness in a former action will not be admitted in a subsequent one, unless the plaintiff in the second action claims through the plaintiff in the first (). It appears to be open to the parties to enter into an agreement that the judge's or shorthand writer's notes at the first trial shall be received as evidence in the second; and after such consent neither party

(i) Morgan v. Nicholl, L. R., 2 C. P. 117.

(c) Green v. Gatewick, Bull. N. P. 242, b.

(d) R. v. Eriswell, 3 T. R. 707.
(f) Doev. Parsingham, 2 C. & P. 440.

(g) Todd v. Earl of Winchelsea, 3 C. & P. 387.

(h) Per Hullock, B., AttorneyGeneral v. Davison, M'Cleland and Young, 169.

can dispute its validity (j). The court will, however, require distinct evidence of such an agreement (k).

Whether a judge's notes of what took place at a former trial are evidence on a subsequent trial is a matter which cannot be considered to be settled in spite of the dictum of Mansfield, C. J., in Mayor of Doncaster v. Day, cited above. Strictly speaking, this cannot be regarded as included in the principle by which courts take cognizance of the acts and signatures of public officers, inasmuch as judges, virtute officii, are not required to take notes of the cases before them, but do so merely for their own personal convenience and satisfaction; yet, considering that their notes have all the authenticity and value of public documents, and are now the primary means of proving in the Court of Appeal the evidence given orally in the court below (1), there seems to be no reason why, even without the aid of a statute, such notes, purporting to be signed by the judge, should not be received as good evidence. Since, also, it appears to be the better established doctrine that the judge himself cannot be made a witness as to what took place at the former trial, and, even if this were allowed, his presence would only serve the purpose of authenticating his notes, to which he would necessarily refer, and which he would follow literally, every argument of public policy seems to be in favour of receiving such notes as evidence per se.

A Judge as a witness. It appears that a judge of the High Court cannot be called to give evidence of the substance of a former trial, but that he may be called to prove anything collateral or incidental to it (m). But in R. v. Gazard, Patteson, J., recommended the grand jury not to examine one of their number, who had been chairman of quarter sessions on the trial when the prisoner had committed the

(j) Wright v. Tatham, 1 A. & E. 3. (k) Doe v. Earl of Derby, 8 A. & E. 783.

(7) See R. S. C. Ord. 58, r. 11. (m) R. v. Gazard, 8 C. & P. 595; R. v. Earl of Thanet, 27 How. St. Tr. 845.

alleged perjury. His Lordship said :-" It is a new point, but I should advise the grand jury not to examine [the gentleman]; he is the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court." However, in a trial for perjury, under a committal by a county court judge, Byles, J., held that the judge ought to have been called to prove the perjury from his notes; and that the rule prohibiting the calling of judges as witnesses is confined to judges of the superior courts. His Lordship said:-"If you had called me, I should not have come" (n). In an action on an award under the Lands Clauses Consolidation Act, the arbitrator is an admissible witness, to show what matters were included by him in the compensation which he has given, but he must not be asked his reasons for awarding any particular item, nor can he be asked questions to explain or contradict his award (0).

Ord. 58, r. 11 of the R. S. C., 1883, provides that when any question of fact is involved in an appeal, the evidence given orally in the court below shall be brought before the Court of Appeal by the production of a copy of the judge's notes, or such other materials as the court may deem expedient.

It is sufficient that evidence of what occurred at a former trial, when admissible, should be substantially, without being literally, correct, except where actual words are the gist of the issue. Thus, on an indictment for perjury, evidence of the words spoken, coupled with a confident conviction on the part of the witness that they were all that was material to the pending inquiry, and that they were not qualified by other expressions, has been held to be sufficient (p).

(n) R. v. Harvey, 8 Cox, C. C. 99. (0) Duke of Buccleuch v. Metropo

litan Board of Works, L. R., 5 E. & I. 418.

(p) R. v. Rowley, 1 Moo. 111.