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deposition is generally admissible. Thus, before the statute, the deposition was received at common law, not merely on proof that the deponent was either dead or so ill as to be unable to travel, but if he were proved to have become permanently insane, or to be actually insane at the time of trial with a possibility of recovery.2 So, it neither was nor is necessary to show that the illness under which a deponent is suffering, is of a permanent, or of more than a temporary nature. This latter position is doubted by Mr. Phillips,3 but apparently on insufficient grounds. It is manifestly the intention of the statute that the deposition should be received if the deponent be suffering under an actual and present physical inability to travel, however temporary it may appear to be; and it is the daily practice of the court to admit depositions on proof of this fact. But where the illness of the witness is proved to be of a very transitory nature, the judge may and will, in his discretion, postpone the trial until he recover; and this is the proper course whenever such postponement does not clearly clash with public convenience.

But the illness must be real and serious, and there must either be a physical incapability of locomotion, or a probability that it might dangerously affect the witness's health. It is desirable, when it is possible, to prove this fact by a medical attendant, but it may be proved by any one who has seen and examined the deponent recently. The court will inquire scrupulously and even suspiciously into all these circumstances before receiving the deposition; and will reject it when the alleged illness appears to be not dangerous or serious enough to excuse the absence of the deponent. Thus, at the Salisbury Spring Assizes, 1853, Crompton, J., held that, the fact of a woman being within a month of her confinement was insufficient, in her

1 R. v. Eriswell, 3 T. R. 707.

2 R. v. Marshall, C. & M. 147. 32 Phill. 99.

4 R. v. Day, 19 L. T. 35.

absence, to render her deposition admissible. But immediately after, at Exeter, the same learned judge considered that it might be received when it appeared, in such a case, that the woman was expecting every hour to be confined.

It is also decided that, as before the statute, a deposition will be received if the deponent be proved to have been kept out of the way and prevented from appearing at the trial, by the act of the prisoner, or by collusion with him or his friends. This was expressly decided in R. v. Scaife, where the deponent was kept out of the way by the prisoner's agents; but it is necessary to create by evidence a reasonable presumption that the prisoner's agents have been authorized or sanctioned by him to procure the absence of the witness.2 But in such a case the deposition is evidence only against the prisoner who procured the absence of the deponent; and not against other prisoners in the same indictment who are not implicated in the collusion.3

Unless the absence of the witness be accounted for in some one of these ways, his deposition cannot be received, because it will retain all its original and unsatisfactory incidents as hearsay evidence.

Each deposition ought to be separately signed by the magistrate, but in one case, before the statute, where the deposition of a deceased witness was first on the same sheet of paper with the depositions of two other witnesses, and the magistrate's signature was at the end only of the last deposition, but was not in terms confined to it; Coleridge, J., after conferring with Lord Abinger, received the first deposition, but with the remark that it would have been bad in an affidavit. But it seems to have been the impression of the learned judge in this case, that each deposition

1 R. v. Gutteridge, 9 C. & P. 471; R. v. Scaife, 20 L. J. 229, M. C.

2 Chitty's Statutes, vol. 2, p. 38, n. 3 R. v. Scaife, supra.

4 R. v. Osborne, 8 C. & P. 113.

ought, strictly, to be separately signed by the committing magistrate; and the language of the 17th section of the 11 & 12 Vict. c. 42, appears to point out distinctly that such is the correct practice; for it declares the deposition to be admissible "if such deposition purport to be signed by the justice;" and that it shall be inadmissible if " it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same." It seems clear that "deposition " here is used in the singular, and applies only to the separate statement of the deceased or absent witness, and not to the aggregate mass of the distinct sheets of the whole depositions. It is, therefore, apprehended that, according to the manifest words of the section, if the deposition of a deceased or absent witness is not signed by the magistrate at the foot of such statement, although it may be used for purposes of contradicting the evidence, or refreshing the memory of a present witness, it is not, in any case, evidence in his absence against a prisoner. This is clearly also the justice of the case; for depositions, as being in the nature of hearsay, and as tending to affect the liberty of the subject, in opposition to the principle which entitles every man to be confronted by his accuser, ought clearly to be received, if received at all, only when every legal formality has been observed, and when, especially, the signature of the magistrate, countersigning and following immediately on that of the witness, may be presumed to afford a reasonable guarantee that the written deposition corresponds exactly with the verbal statement. Such a guarantee of accuracy is clearly of a far higher nature than that which is contained in a single signature at the end of the whole depositions of numerous witnesses, contained on separate sheets which have no necessary connection.

It is therefore considered that, in the case under consideration, the deposition of every witness ought to be separately signed by the committing magistrate; and that it is inadmissible unless it be so signed. It is believed, also, to be the common practice of committing

magistrates to sign each deposition; but it is right to observe that, although this course seems to be pointed out so clearly by the 17th section of the 11 & 12 Vict. c. 42, it is not expressly required by the form M. in the appendix to the act. The 28th section also declares that the "several forms in the schedule, or forms to the same or like effect, shall be deemed good, valid, and sufficient in law ;" and this raises the question how far the omission in the form, as sanctioned by the 28th section, is affected by the 17th section, and how far matter in the nature of parol evidence may and ought to be imported into the form in order to explain, complete, and reconcile it with the 17th section. It is unnecessary to pursue this inquiry; but the safe and strictly legal practice is apprehended to continue as it existed before the statute, and that, in the words of Lord Denman, "it is the magistrate's duty to sign every deposition (the witness having first signed it) as the proceedings go on." 1

The depositions before a magistrate against a prisoner must be taken in the presence both of the magistrate and of the prisoner; and nothing should be returned as a deposition against the prisoner unless the prisoner had an opportunity of knowing what was said, and an opportunity of cross-examining the person making the deposition.2

But it is said not to be necessary that the prisoner should be present at the examination before a coroner, in order to render the deposition admissible. This appears to be doubtful.3

The depositions of witnesses who have been examined on behalf of the prisoner, ought to be returned with the depositions of the witnesses for the prosecution; but they are not, apparently, evidence for the prisoner.4 If the depositions are lost without fraud or gross

1 R. v. Lord Mayor of London, 5 Q. B. 564. 2 Lord Denman, R. v. Arnold, 8 C. & P. 621. 3 Wels. Cr. Pr. 210; 2 Phill. 109.

4 2 Phill. 103.


negligence before trial, and cannot be found after diligent search, they may be proved by a copy produced and certified by the magistrate's clerk; and now, probably, under 14 & 15 Vict. c. 99, s. 14, any duly examined copy would be admissible.

Every deposition against a prisoner ought to be taken down in writing whether any case is made out or not; and Jervis, C. J., has declared it to be " a practice quite illegal and highly improper," not to take down in writing every such deposition. Accordingly, the court will require distinct evidence that it has not been so taken down, before it will admit secondary parol evidence of anything that was said on an examination before a magistrate.2


This will be limited, as to its admissibility in the first instance, by the principle laid down in the chapter on Confessions, but, generally subject to the statutory provisions which are about to be mentioned, a voluntary statement made by a prisoner before a magistrate, ought to be reduced into writing, and read as evidence against, or for, him in the case for the prosecution at trial.

By the 11 & 12 Vict. c. 42, s. 18, it is enacted : "that after the examination of all the witnesses on the part of the prosecution shall have been completed, the justice of the peace, or one of the justices by or before whom such examination shall have been so completed, shall, without requiring the attendance of the witnesses, read or cause to be read to the accused, the depositions taken against him, and shall say to him these words, or words to the like effect :

"Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged

1 R. v. Shellard, 9 C. & P. 277.

2 Parsons v. Brown, 3 C. & K. 295.

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