was subpoenaed by the defendant to appear at a subsequent trial in 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.1 But it appears to be doubtful whether every species of mere subsequent incapacity will let in evidence that has been given at a former trial.2

It appears that under the 11 & 12 Vict. c. 42, s. 17, it is not necessary to prove that a witness absent from illness is so ill as to be unable to attend, but it is sufficient if it appear that it would endanger his life to attend. The full effect of the above statute, and the circumstances under which the depositions of deceased or absent witnesses will be received, according to its requirements, will be considered under the head of secondary documentary evidence.

If a party give evidence of 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 be not between the same parties nor on the same rights.4

On a new trial of an issue out of Chancery, oral evidence of the statements at a former trial of a deceased witness were received, although the Master of the Rolls had made his usual order for reading the depositions in equity of such witnesses as had died since the first trial.5

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.6

1 Green v. Gatewick, Bull. N. P. 242, b.

2 R. v. Eriswell, 4 T. R. 707.

3 R. v. Day, per Platt, B., 19 L. T. 35.

Doe d. Lloyd v. Parsingham, 2 C. & P. 440.

5 Tod v. Earl of Winchelsea, 3 C. & P. 387. 6 Hullock, B., M Clel. & Y. 169.

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 can dispute its validity. But the court will require distinct evidence of every such agreement.2

3

1

It is settled law that a verdict in a former action is conclusive evidence in a subsequent action, where the same matter is in issue, and where the parties are either the same or identical in interest. Thus in trespass, to land, where the defendants, a husband and wife, pleaded title; evidence of a verdict gained by the plaintiff against the female defendant in a former action, on the same question of right, was held conclusive evidence in the second action against the husband, in respect of his privity. But the identity or privity of interest must clearly appear; and therefore, where A. brought ejectment against B., and C. at the same time brought ejectment against B. in respect of a title derived through A., and both lessors of the plaintiff recovered; it was held in a subsequent ejectment by B. against C. for the same premises, that evidence given by a deceased witness on the action by A. against B. was inadmissible, although the two former trials had been treated virtually as one, and although both had included one and the same question of title.4

The statements of absent witnesses are frequently tendered in the form of depositions by persons who have been examined, either in this kingdom or abroad, on interrogatories pursuant to commissions issued out of the Courts of Chancery or Common Law. But their admissibility will be discussed under the head of written evidence.

A question has often arisen, and has never yet been satisfactorily decided, as to how far a judge's notes are

1 Wright v. Doe d. Tatham, 1 A. & E. 20 S. C.

21 A. & E. 789; Lord Denman.

3 Outram v. Morewood, 3 East, 346.

Doe d. F. Foster v. Earl of Derby, 1 A. & E. 783.

evidence of what took place at a former trial, and whether the judge himself may be made a witness. It would appear from the dictum of Mansfield, C. J., in Mayor of Doncaster v. Day, already cited, that a judge's notes at a former trial are evidence on a subsequent trial; and although, strictly speaking, this cannot, perhaps, 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, 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 more 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. But there appears to be no express English decision on the point; and Mr. Phillipps and Mr. Taylor speak doubtfully on it, the former inclining to the affirmative, on the dictum of Mansfield, C. J., and the latter to the negative, according to Greenleaf and some American authorities.1

It appears to be understood that a judge 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.2 In R. v. Gazard, Patteson, J., recommended the grand jury not to examine one of their number, who had been chairman at the quarter sessions on the trial in which the prisoner had

11 Phill. 307; Tayl. 352; Greenleaf, 197; 2 Russ. Cr. 650.

2 R. v. Cazard, 8 C. & P. 595; R. v. Earl of Thanet, 27 How. St. Tr. 845 to 848.

committed an 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."

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, was held by all the judges to be sufficient.1

1 R. v. Rowley, 1 M. C. C. 111.

CHAPTER XV.

ON ADMISSIONS.

Ir is a rule at common law, that—

XLIII. The express admissions, or the admissions implied from the conduct of a party to a suit, are presumptive evidence against him, as between himself and another party; but they are not conclusive evidence, unless such other party have been induced by them to alter his condition;1 nor are they evidence as between third parties.

The branch of law contained in the above general rule is intricate and prolix, and a complete elucidation of it is beyond the limits of this work; but it will be attempted in the present chapter to simplify and explain it sufficiently for all practical purposes.

It might have been presumed, that, in accordance with the fundamental principle which requires the best evidence to be given, the above rule would have been treated as modified considerably by the Law of Evidence Amendment Act, 14 & 15 Vict. c. 99, s. 2, by which, parties to any suit or action, or the persons on whose behalf such suit or action is brought or defended, are made competent and compellable witnesses.

1 Newton v. Liddiard, 12 Q. B. 925.