328

SECONDARY EVIDENCE OF ORAL TESTIMONY.

that depositions were taken, either by parties not legally authorised to take them (y), or without the sanction of an oath or affirmation, or in the absence of the party (2) against whom they are offered, when, as in most criminal investigations, his presence was requisite, they cannot be received (a). But although the party, against whom depositions are offered in evidence, must have had an opportunity of being present at the examination, and of cross-examining the witnesses (b); and therefore, if a commission be executed without any notice being given to the opposite party, to enable him, if he pleases, to put cross-interrogatories, the depositions will be rejected (c); yet, it is by no means requisite that he should exercise that power; and if notice has been given to him of the time and place of the examination, and he neither intimates any wish to cross-examine, nor applies to the Court to enlarge the time for that purpose, it will be presumed that he has acted advisedly, and the depositions will be received (d). So, where a defendant, after joining the plaintiff in obtaining an order for a commission to examine witnesses upon interrogatories, gave notice that he declined to proceed with the examination; whereupon the plaintiff sent him word that he should apply for a commission ex parte, which he accordingly did; the Court held that the examinations taken under this last order were admissible in evidence, although the defendant had received no notice of the time and place of taking them (e).

§ 344. The admissibility of this evidence seems to turn, rather on the right to cross-examine, than upon the precise identity, either of the parties or of the points in issue, in the two proceedings.

(y) 12 Vin. Ab. Ev. A. b. 31; B. N. P. 241.

(*) The admissibility of depositions taken before a coroner, in the absence of the accused, will be discussed hereafter. See Index, tit. Coroner.

(a) In R. v. Eriswell, 3 T. R. 721, Lord Kenyon laid down that "the evidence should be given under the sanction of an oath legally administered, and in a judicial proceeding depending between the parties affected by it, or those who stand in parity of estate or interest with them."

(b) Att.-Gen. v. Davison, M'Clel. & Y. 160.

(c) Steinkeller v. Newton, 1 Scott, N. R. 148; 8 Dowl. 579; 9 C. & P. 313, S.C. (d) Cazenove v. Vaughan, 1 M. & Sel. 4.

(e) M'Combie v. Anton, 6 M. & Gr. 27.

TESTIMONY GIVEN IN FORMER JUDICIAL PROCEEDING. 329

Therefore, where a witness testified in a suit, wherein A. and several others were plaintiffs and B. defendant, his testimony was, after his death, held admissible in a subsequent action relating to the same matter, brought by B. against A. alone (e). And though the two trials were not between the same parties, yet, if the second trial is between those, who represent the former parties, and claim through them by some title acquired subsequently to the first trial, the evidence is admissible (f). Again, if in a dispute respecting lands, any fact comes directly in issue, the testimony given to that fact is admissible to prove the same point in another action between the same parties or their privies, though the last suit relate to other lands (g). So, in criminal cases, a deposition taken on a charge of assault and robbery, has, after the death of the witness, been read upon a trial for murder, where the two charges related to the same transaction (h). Indeed, it has been very sensibly observed, that, if this were not the law, the depositions of the deceased would, in all cases of homicide, be most improperly excluded (i). In one case (j), where a prisoner, who had been summarily convicted of an assault, was, in consequence of the death of the party struck, subsequently indicted for murder, the convicting magistrate was permitted to state what the deceased had sworn in the prisoner's presence, the examination not having been reduced into writing; but the learned judge appears to have received the evidence, not as proving the facts stated, but as producing an answer from the prisoner. Still, it is contended on the authority of Smith's case, cited above, that the statement of the deceased in this case was admissible for all purposes, though had it been reduced to writing at the time, it would doubtless have been more satisfactory.

§ 345. If, however, the point in issue, though very similar, was so far different in the two proceedings, that a witness called to prove or disprove the issue in the former need not have been

(e) Wright v. Doe dem. Tatham, 1 A. & E. 3.

(f) Com. Dig. Ev. A. 5, explained by Littledale, J., in Doe v. Derby, 1 A. & E. 790.

(g) Doe v. Foster, 1 A. & E. 791, n. (b), per Alderson, B.; B. N. P. 232.

(h) R. v. Smith, R. & R. 339; 2 Stark. R. 208, S. C.

(i) 2 Stark. R. 212, note by the reporter.

(j) R. v. Edmunds, 6 C. & P. 164, per Tindal, C. J.

330 TESTIMONY GIVEN IN FORMER JUDICIAL PROCEEDING.

cross-examined in regard to the matters in controversy in the latter, it would seem that, on principle, the testimony would be excluded; and therefore, in America, where the issue in the former action had been upon a common or free fishery, and that in the latter was upon a several fishery, evidence of what a witness, since deceased, had sworn upon the former trial, was held inadmissible (k).

§ 346. In stating that this rule mainly depends on the right of cross-examination, care must be taken to guard against the error of imagining, that, whenever a party has had the right of crossexamining a witness, he will be liable to have the statement of that witness adduced against him in any subsequent action. This will be so only in the event of his opponent being the same in both suits; because, the right to use evidence, other than admissions, being co-extensive with the liability to be bound thereby, the adversary in the second suit has no power to offer evidence in his own favour, which, had it been tendered against him, would have been clearly inadmissible (7). On the same ground of want of reciprocity, it has been held, that, on an issue from Chancery between A. and B., depositions produced by B. in an equity suit of C. against B., could not be read as part of A.'s evidence, though the question in both suits was precisely the same (m). It might appear at first sight that these depositions, having been used by the party himself against whom they were offered in evidence, would, in spite of a want of mutuality, be admissible as admissions, and the correctness of this decision has consequently been questioned by more than one able writer on the law of evidence (n); but the Court of Queen's Bench has given the true answer to this argument, by pointing out that a party, who uses depositions in equity, does not know beforehand what they are, and therefore is no further bound by their contents, than he would be by the vivâ voce testimony of a witness whom he might call at Nisi Prius (o).

(*) Melvin v. Whiting, 7 Pick. 79. See also Jackson v. Winchester, 4 Dall. 206. (1) Doe v. Derby, 1 A. & E. 783, 786. (m) Atkins v. Humphreys, 1 M. & Rob. 523, per Tindal, C. J.; Rushworth v. Countess of Pembroke, Hard. 472.

(n) 1 St. Ev. 312, n. (w); Ph. & Am. Ev. 571, n. (2).

(0) Brickell v. Hulse, 7 A. & E. 456-458, per Lord Denman, and Coleridge, J.

SECONDARY EVIDENCE OF ORAL TESTIMONY.

331

§ 347. We have seen that secondary evidence of oral testimony cannot be received so long as the witness himself can be called; but the inability to call him may arise, not only from his death, but from his being, either out of the jurisdiction of the Court, or, it seems, unable to be found after diligent inquiry, or insane, or permanently sick, or kept out of the way by the contrivance of the opposite party, or subsequently so interested in the event of the cause, as to render his vivâ voce testimony inadmissible. In noticing the authorities which support these propositions, no case need be cited to establish what is admitted on all hands, that if the witness be proved to be dead, secondary evidence of his statement on oath in a former trial between the same parties will be received as of course (p). The Court, however, unless some account of the death of a witness be given, or at least some evidence be furnished showing that proper inquiries have been made, and that no tidings can be heard of him, will not presume his death, so as to admit his depositions, though they were taken as much as fifty years before the trial (q).

§ 348. The ground for admitting secondary evidence seems equally clear, where it is proved that the witness is actually residing in some place beyond the jurisdiction of the Court (r); but questions have occasionally arisen respecting the amount and nature of the proof required to establish this fact. Thus, where a naval captain had been examined on interrogatories by consent, on account of his expected absence, Sir James Mansfield held that it was not absolutely necessary that he should be on his voyage, when the trial came on. If the ship had sailed, though it had put back, or if the witness had gone on board, and was ready to sail, though prevented by contrary winds, that would be sufficient (s). The same doctrine has prevailed in another case, where the signature of an attesting witness was allowed to be proved, it appearing that he had sailed for Spain, had been driven back by stress of weather, and, six days before the trial, was at Falmouth, expecting to sail again immediately (t). In a third case, too, where it was sworn

(p) Pyke v. Crouch, 1 Lord Raym. 730, 5th Res.

(2) Benson v. Olive, 2 Str. 920. (8) Fonsick v. Agar, 6 Esp. 92. cited post, § 367.

See ante, § 124. (r) Fry v. Wood, 1 Atk. 445. But see Carruthers v. Graham, C. & Marsh. 5, (t) Ward v. Wells, 1 Taunt. 461.

332

WHEN WITNESS DEAD OR OUT OF JURISDICTION.

that the witness was a seafaring man, and some six months before the trial had belonged to a ship lying in the Thames, Lord Ellenborough, in rejecting the evidence as too vague, was disposed to admit the depositions, if it could be further shown that any efforts had been recently made to find him (t). This case leads us to notice an old decision of the time of James the First (u), in which it was expressly laid down that, if a party cannot find a witness, then he is, as it were, dead to him; and his depositions in a cause betwixt the same parties may be read, provided the party make oath that he endeavoured to find him, but could neither see him nor hear of him. There is no modern decision on precisely the same point, but as it has frequently been held that proof of inability to find an attesting witness will let in evidence of his handwriting (v), it is submitted that these analogous cases considerably support the correctness of the old authority, at least so far as relates to civil causes.

§ 349. In criminal proceedings it would seem that a similar latitude is not allowable, since the judges, in Lord Morley's case (w), resolved, that the examination of a witness taken before the coroner was not rendered admissible, on mere proof that the witness himself could not be found after diligent search. Mr. Justice Coltman is reported to have gone further, and to have rejected the deposition of a witness who had gone abroad (r); but this ruling is contrary to the law as laid down by Mr. Justice Buller in his work on Nisi Prius (y), and does not appear to rest upon any sound principle. However, this kind of evidence has been rejected in America, both where the witness could not be found within the jurisdiction, but was reported to have gone to an adjoining State (z), and where he was proved to have left the State, after being summoned to attend at the trial (a). Perhaps this last case furnishes the true key to the ruling of the judges in Lord

(t) Falconer v. Hanson, 1 Camp. 171.

(u) Godb. 326.

(v) Kay v. Brookman, 3 C. & P. 555; Cunliffe v. Sefton, 2 East, 183; Crosby v. Percy, 1 Taunt. 364; Earl of Falmouth v. Roberts, 9 M. & W. 469; Parker v. Hoskins, 2 Taunt. 223; Burt v. Walker, 4 B. & A. 697.

(w) Kel. 55, 6th Res.; 6 How. St. Tr. 771, S. C.

(x) R. v. Hagan, 8 C. & P. 167.

(2) Wilbur v. Selden, 6 Cowen, 162.

(y) B. N. P. 242.

(a) Finn's case, 5 Rand. 701.