revoked: frequent historical instances may be remembered of the reversal of attainder in cases of high treason: and now by 11 and 12 Vic. c. 78, under which the Criminal Appeal Court sits in England, judgment in cases of felony are frequently reversed.

CHAPTER XXVII.

DEPOSITIONS AND EXAMINATIONS.

§ 499. The term examination is technically used of the party: the term deposition, of a witness.

§ 500. A deposition may be taken in a Civil or Criminal case. The term is equally applicable to all that a witness deposes orally on the trial, or of that which is taken down from his mouth in writing previous to the trial, but the term is generally used of the preliminary evidence which a witness gives before a committing Magistrate in criminal matters. Many of the following observations apply equally to all depositions. Some from their nature will be seen to be confined to criminal cases.

§ 501. Depositions are not evidence, where the witness is alive and can be produced at the trial. To admit his deposition, when he might be called and sworn, would violate the rule which requires the production of the best evidence. It is true the depositions have been given. under the obligation of an oath, or affirmation, which so far as the legal consequences of perjury are concerned, is tantamount to it; and that the prisoner has had the opportunity of cross-examination; but still it is evidently desirable that the witness should, where it is practicable, be produced before the Court: and subjected both to the test of increased publicity, and more acute searching by professional hands than he probably underwent before the Magistrate, especially as the generality of prisoners are illiterate. Depositions before a Magistrate serve a twofold purpose: first, to lay sufficient grounds for depriving an accused party of his liberty and committing him for trial; secondly, as a precautionary measure, to secure evidence in case of the death or corruption of the witness, before the prisoner can be brought to trial. But the existence of his deposition will not supersede the necessity of

producing the witness himself. On this point consult the following cases in Morley's Digest, N. S. Tit. Cr. L. C. 119.

"If a prisoner before a Court of Sessions plead not guilty, it is irregular to cause the deposition made by witnesses before a Magistrate to be recorded. as evidence against the prisoner, on the declarant's being re-sworn and confirming the same before that Court; the proper course of procedure being, to take and record every oral declaration de novo direct from the declarant. Shahjee Wullud Ali Khan v. Johra Kome Babnya.-11th July 1828. S. F. A. Rep. 16.-Romer and Sutherland."

Morley's Digest, N. S. Tit. Ev. C. 125.

"Copies of depositions made before another tribunal by persons still in existence (for anything shown to the contrary on the record) cannot be received as evidence. Chowdhree Muhabeer Sing and others v. Sheo Purshad Bhuggut.-5th July 1848, S. D. A. Decis. Beng. 647.-Tucker."

Ib. C. 126.

"Copies of depositions of witnesses cannot be received in evidence without ascertaining whether the witnesses are still living, and could be produced to give evidence in the usual manner. Kalinath Bhoomeek and others v. Hurdoorga Chowdhrain. 26th December 1849. S. D. A. Decis. Beng. 486.-Jackson."

Ib. Tit. Cr. L. C. 129.

"Where two important witnesses in a case of murder had died, the Sessions Judge took evidence to prove this fact, and then proceeded to read and record their depositions, calling the attesting witnesses to prove their authenticity. This course renders their depositions legal and valid evidence. Case of Puddoo Bin Bappoo.-17th Nov. 1845. S. F. A. Rep. 231.-Pyne, Hutt and Brown."

See also S. A. 75 of 1852, M. S. R. for 1853, p. 129.

§ 502. If, however, a deponent be dead, or so infirm as to be unable to attend, or without collusion at such distance from the Court as would render his attendance inexpedient, depositions in Criminal cases may be read under Section 369 of the Criminal Procedure Code. See ante, p. 171. Section 179 of the Civil Procedure Code (ante, p. 161) provides for the cases in which the depositions of absent witnesses taken on commission may be read. And see S. A. 53 of 1856. S. R. for 1857, p. 96, and S. A. 2 of 1857, Ib. p. 103.

§ 503. Where depositions taken in a former suit are offered to be made use of in a subsequent suit, the first suit must have been between the same parties, for reasons already explained. In Lawrence v. Maule, 4 Drewery, 472, Kindersley, V. C. said :—

"The general rule with regard to the admission of evidence is that when an issue has been raised between certain parties, and evidence has been adduced upon that issue by one of those parties which could be used by him as against the other party, and in a subsequent proceeding the same issue is raised between the same parties, and the witness who gave the evidence in the former proceeding has died, the Court will admit the evidence given by the deceased witness in the former, as evidence in the subsequent proceeding. But the evidence is not admissible unless the issue is the same, and the parties are the same in both proceedings."

§ 504. The deposition may have been oral, as in the common case of a viva voce witness in a civil suit. If that oral deposition can be proved to the satisfaction of the Judge, it is as admissible as a written deposition of the Judge. But it is of course open to much observation, inasmuch as the memory is treacherous, while a written record of what is said, abides. Litera scripta manet. Some forcible remarks on the superiority of written oral testimony will be found in the case of Bunwaree Lall v. Maharajah Hetnarain Singh, 7 Moore's I. A. C. p. 156. There the Lords of the Privy Council said :—

"It has been also said that this defence stands exclusively upon oral evidence,and though to a considerable degree that observation may be true, yet it cannot be received to the full extent to which it has been urged. The defence in this case does, it must be admitted, depend upon the proof of a given instrument; but, there is a very clear distinction, and not an unimportant one between pleading a written instrument, as an answer to a demand, and the setting up a defence founded exclusively upon oral evidence: for instance, if the defence were adoption, where there was no written record of the transaction, and the fact was to be established merely by the evidence of witnesses who swear they were present at it, there the proof would be purely oral evidence, and might be liable to all the imputations which are in these cases cast upon it; but where the defence is rested upon a written document as a release, there is an essential difference, for its genuineness on the contrary, may be shown by many facts and circumstances very different from mere oral evidence; and moreover, the witnesses who are to prove a written document cannot resort to that latitude of statement which affords such opportunity of fabrication to purely oral evidence.

"There are more means of trying the genuineness of a written instrument than there can be in disproving purely oral evidence. This is quite manifest,

even upon the present occasion; for the truth of the transaction may, as it has been, be investigated by reference to the handwriting, to the seal, to the stamp, the description of the paper, and the alleged habits of him who is said to heave written it."

One mode of proof of such depositions is the production of the Judge's notes(e) or the oath of some one who was present and heard the evidence delivered. In Lord Palmerston's case) the evidence was rejected, because the witness could give the effect only, and not the words. But it may be doubted whether such minute particularity is requisite; for the very words could seldom be remembered after a lapse of time. Where a note has been made of the evidence by a reporter or short-hand writer, he could of course use the note to refresh his memory; and from such a source a short-hand writer might be able to swear to the very words. See O'Connell's case, Armstrong and Trevor, 275.

§ 505. Extra-judicial depositions are not receivable as where a person has made a voluntary affidavit.

§ 506. Before a deposition is admitted in evidence, the existence of the former proceedings must be established. This is effected by putting in a copy of the judgment; for if this be not shown, the depositions are purely extra-judicial. So where a deposition has been taken under a commission, as for instance under Section 179 of the Civil Procedure Act, the commission which has been returned executed, must be put in before the depositions taken under it can be read. Depositions are open to the same observations as the witness would have been, if under personal examination. They must not be elicited by leading questions, for instance.

§ 507. By Act. 13 of Geo. 3, c. 63,) Sections 40-44, in any information, or indictment, for misdemeanor, in India, or in any action brought in the Courts of Westminster, the Court has power to issue a mandamus to the Judges of the Court of India commanding them to examine the witnesses. Under this Act Captain Douglas' case fell; and it was held in his case() that copies of the depositions.

(e) Mayor of Doncaster v. Day, 3 Taunt, p. 262.

What a dead witness has sworn on a former trial between the same parties, is evidence in the cause, and may either be read from the Judge's notes, or proved upon oath by the notes or recollection of any person who heard it."

return by the Madras Court were not evidence; the originals should have been themselves returned.

$ 508. The Sections of the Act, not being universally easy of access, are here given.

"§ 40. And whereas the provisions made by former laws for the hearing and determining in England' offences committed in India have been found ineffectual, by reason of the difficulty of proving in this kingdom matters done there;' be it further enacted by the authority aforesaid, That in all cases of indictments or informations, laid or exhibited in the said Court of King's Bench, for misdemeanors or offences committed in India, it shall and may be lawful for His Majesty's said Court, upon motion to be made on behalf of the prosecutor, or of the defendant or defendants, to award a writ or writs of Mandamus, requiring the Chief Justice and Judges of the said Supreme Court of Judicature for the time being, or the Judges of the Mayor's Court at Madras, Bombay, or Bencoolen, as the case may require, who are hereby respectively authorized and required accordingly to hold a Court, with all convenient. speed, for the examination of witnesses, and receiving other proofs concerning the matters charged in such indictments or informations respectively; and, in the meantime, to cause such public notice to be given of the holding the said Court, and to issue summons or other process, as may be requisite for the attendance of witnesses, and of the agents or counsel, of all or any of the parties respectively, and to adjourn, from time to time, as occasion may require; and such examination as aforesaid shall be then and there openly and publicly taken viva voce in the said Court, upon the respective oaths of witnesses, and the oaths of skilful interpreters, administered according to the forms of their several religions; and shall, by some sworn officer of such Court, be reduced into one or more writing or writings on parchment, in case any duplicate or duplicates should be required by or on behalf of any of the parties interested, and shall be sent to His Majesty, in his Court of King's Bench, closed up, and under the seals of two or more of the Judges of the said Court, and one or more of the said Judges shall deliver the same to the agent or agents of the party or parties requiring the same; which said agent or agents (or, in the case of his or their death, the person into whose hands the same shall come), shall deliver the same to one of the clerks in Court of his Majesty's Court of King's Bench, in the public office, and make oath that the received the same from the hands of one or more of the Judges. of such Court in India, (or if such agent be dead, in what manner the same came into his hands); and that the same has not been opened, or altered, since he so received it (which said oath such clerk in Court is hereby authorized and required to administer): and such depositions, being duly taken and returned, according to the true intent and meaning of this Act, shall be allowed and read, and shall be deemed as good and competent evidence as if such witness had been present, and sworn and examined viva voce at any trial