348 EXAMINATIONS TAKEN UNDER COMMISSION. they have received by the instrument appointing them, though the Court will not look out critically for objections to their conduct, but will rather in their favour presume that they have discharged their duty (t). Thus, where a commission, directed to the judges of a foreign court, required that when the examinations were taken, the same should be transmitted to this country, it was held insufficient to send mere copies of them (u); but where commissioners for the examination of witnesses abroad were directed to reduce the examinations into writing in the English language, and to swear an interpreter to translate the oath, interrogatories and depositions, the Court held that the commission was well executed by the return of depositions which had originally been taken down in the foreign language, and six weeks afterwards had been translated by the interpreter into English (v). The commissioners must also transmit whatever original documents have been produced in evidence before them, as copies of such documents, however authenticated, will not be admissible (w); unless, indeed, it be distinctly proved, that the law of the country where the commission was held has prevented the removal of the originals (x). § 367. Sect. 10 of the English, and § 75 of the Irish statute, further enact, "that no examination or deposition to be taken by virtue of these acts respectively shall be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear, to the satisfaction of the judge, that the examinant or deponent is beyond the jurisdiction of the Court, or dead, or unable from permanent sickness or other permanent infirmity, to attend the trial; in all or any of which cases the examinations and depositions, certified under the hand of the commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of the signature to such certificate, be received and read in evidence, saving all just excep (t) Atkins v. Palmer, 4 B. & A. 380, per Abbott, C. J. (v) Atkins v. Palmer, 4 B. & A. 377. (w) R. v. Douglas, 1 C. & Kir. 670. (x) Alivon v. Furnival, 1 C. M. & R. 277. EXAMINATIONS UNDER COMMISSION, WHEN ADMISSIBLE. 349 tions." It will be seen that, under these statutes, depositions are rendered admissible only in one or other of four events. First, if the opposite party consent; secondly, if the witness be proved to be dead; thirdly, if he be shown to be beyond the jurisdiction of the Court; and lastly, if it appear that, from permanent sickness or infirmity, he cannot attend the trial. The judges seem inclined to construe these statutes strictly. Thus, where a witness stated that he had seen the deponent, whose examination had been taken before the master on board a ship bound for Montreal on the day preceding the trial; that he then had his luggage on board; and that the ship in the evening was lying below Gravesend waiting for the captain, Lord Denman held that this was not sufficient (w), though, as we have seen, less stringent evidence has satisfied other judges, in cases where the admissibility of the depositions rested on the principles of common law (x). So, where in order to put in the deposition of a witness examined under 1 Will. 4, c. 22, the attorney's clerk swore that he had made inquiries for the witness at his residence, and had then been told, by a person whom he believed to be the wife of the witness, that he had sailed in a certain ship, Lord Abinger rejected the testimony as hearsay, observing that the woman who gave the information to the clerk, or some person who knew of his own knowledge that the witness was abroad, should have been called (y). This decision was, no doubt, correct with reference to the wording of the act; but we have seen that, at common law, the evidence would have been admissible to prove, not indeed that the witness was abroad, but that inquiries had been made for him, and that he could not be found (z). § 368. Perhaps, independent of statutory provisions, the Court of Exchequer has a limited power to order, at the instance of the Crown, that witnesses in revenue causes should be examined before an officer of the Court; and the learned barons, in conformity with several old precedents, have recently exercised this power, by permitting the Attorney-General, in an information for penalties, to examine on interrogatories before the Queen's remembrancer a (w) Carruthers v. Graham, C. & Marsh. 5. (y) Robinson v. Markis, 2 M. & Rob. 375. (x) See ante, § 348. (z) See ante, § 350. 350 COMMISSIONS GRANTED BY COURTS OF EQUITY. material witness for the Crown, who was sworn to be too ill to attend the trial; but their lordships refused to make it part of the rule, that the examinations so taken should be received in evidence, saying that the question was not one to be disposed of on motion (a). § 369. However this question may be ultimately determined, it is clear that Courts of Equity have inherent power to grant commissions for the examination of witnesses whether at home or abroad (b), provided, in the former case, that the witnesses reside more than twenty miles from London (c); and the Courts are further authorised to sustain bills, filed for the purpose of preserving evidence in perpetuam rei memoriam, touching any matter which cannot be immediately inquired into by a court of law, or where the testimony of a material witness is likely to be lost by his death or departure from the realm, or by any other cause, before the facts can be judicially investigated (d). Previously to the passing of the statutes 1 Will. 4, c. 22, and 3 & 4 Vict. c. 105, which enabled courts of law to issue commissions for themselves, it was often necessary to institute proceedings in Chancery as auxiliary to an action at law; and even now it is occasionally expedient to have recourse to a bill for perpetuating testimony. As the object of this jurisdiction is to prevent litigation by preserving evidence, the equity courts will seldom decline to exercise it (e). § 370. The Legislature, having felt the advantage of extending the benefits derivable from this mode of proceeding, has lately enacted (f), that any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate (a) Att.-Gen. v. Reilly, 13 M. & W. 676; Jenkins v. Larwood, Bunb. 13. In Att.-Gen. v. Bovet, 15 M. & W. 69, Parke, B., observed, that the case of Att.-Gen. v. Reilly was decided as it was, merely because there would have been no appeal, had the Court decided against the Crown; whereas a decision in favour of the Crown left the question open to be determined by a court of error. See ante, § 363. (b) See Gresley on Ev. 69-93; and orders in Chancery E. T. 1845, xciv.—cx., set out post, in Chapter On Enforcing the Attendance of Witnesses, in note. See Index, tit. Commissioner. (c) 1 Smith's Ch. Pr. 478. (d) Mitf. Pl. 62; 1 Smith's Ch. Pr. 626. (f) 5 & 6 Vict. c. 69. (e) Mitf. Pl. 172, 173. BILLS TO PERPETUATE TESTIMONY. 351 or interest in any property real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, shall be entitled to file a bill in Chancery to perpetuate any testimony which may be material for establishing such claim or right; and that all laws, rules, and regulations, not contrary to the provisions of that act, now in force or in use in suits to perpetuate testimony, or respecting depositions taken in such suits, or the punishment of perjury committed in making such depositions, shall be in force, and shall be used and applied to all suits instituted under that act, and in respect to depositions taken on such suits. § 2 enacts, that in all such suits touching any honour, title, dignity, or office, or any other matter in which the Crown may have any estate or interest, the Attorney-General may be made a party defendant; and that in all proceedings, in which the depositions, taken in any such suit wherein the Attorney-General was made a defendant, may be offered in evidence, they shall be admissible, notwithstanding the objection that Her Majesty was not a party to the suit. § 371. In entertaining suits to perpetuate testimony, courts of equity will compel the defendant to appear and answer, provided he be shown by the bill to have an interest in contesting the plaintiff's claim in the subject of the proposed evidence (ƒ); and the cause being brought to issue, a commission for examining witnesses will be made out, executed, and returned, in the same manner as in other cases, though, no relief being prayed, the suit is never brought to a hearing (g). The Court will not, in general, permit the publication of the depositions, except in support of a suit or action, nor then, unless it be proved that the witnesses are dead, or otherwise incapable of attending to be examined (h). So, if a witness in imminent danger of death has been examined de bene esse, under the authority of the ecclesiastical courts, the deposition cannot be read, unless proof be given that the witness has since died, or is too ill to be again examined at the hearing of the cause (i). (f) Mitf. Pl. 63. (g) 1 Smith's Ch. Pr. 628. (h) Id. 629; Morrison v. Arnold, 19 Ves. 670. (2) Wequelin v. Wequelin, 2 Curt. Ec. R. 263. 352 VIVA VOCE TESTIMONY, HOW PROVED. § 372. We have seen, in the last chapter, that if a witness, after being examined on interrogatories, should be called at the trial of a cause, either party, on any subsequent trial respecting the same subject, provided the witness be then incapable of attending, may rely, at his option, either on the deposition, or on the previous vivâ voce testimony (j); and it may be here observed, that what such witness orally testified may be proved, either by any person, who will swear from his own memory (k), or by notes taken at the time by any person, who will swear to their accuracy (1), or perhaps, from the necessity of the case, by the judge's notes (m). However, this last mode of proof may be open to objection, as such notes form no part of the record, nor is it the duty of the judge to take them, nor have they the sanction of his oath to their accuracy or completeness (n). How far it may be necessary to prove the precise words spoken, does not clearly appear. Lord Kenyon mentions a case, where the evidence of a witness was rejected, "as he could not undertake to give the words, but merely to swear to the effect of them " (o); and the same precision has, on several occasions, been deemed requisite in America (p); but on the other hand, it has been urged, with much force, that to insist upon strict accuracy, goes, in effect, to exclude this sort of evidence altogether, or to admit it only in cases where the particularity and minuteness of the witness's narrative, and the exactness with which he undertakes to repeat every word of the deceased's testimony, ought to excite just doubts of his own honesty, and of the truth of his evidence (q). (j) Tod v. Earl of Winchelsea, 3 C. & P. 387, per Lord Tenterden, ante, § 293. (k) Strutt v. Bovington, 5 Esp. 56, per Lord Ellenborough; Mayor of Doncaster v. Day, 3 Taunt. 262; R. v. Jolliffe, 4 T. R. 290, per Lord Kenyon. (7) Mayor of Doncaster v. Day, 3 Taunt. 262; Chess v. Chess, 17 Serg. & R. 409. (m) Mayor of Doncaster v. Day, 3 Taunt. 262, per Sir Jas. Mansfield. (n) Miles v. O'Hara, 4 Binn. 108; Foster v. Shaw, 7 Serg. & R. 156; Ex parte Learmouth, 6 Madd. R. 113. (0) R. v. Jolliffe, 4 T. R. 290. (p) U. S. v. Wood, 3 Wash. 440; Foster v. Shaw, 7 Serg. & R. 163; Wilbur v. Selden, 6 Cowen, 165; Com. v. Richards, 18 Pick. 434. (q) See Cornell v. Green, 10 Serg. & R. 14, 16; Miles v. O'Hara, 4 Binn. 108; Caton v. Lenox, 5 Randolph, 31, 36; Jackson v. Bailey, 2 Johns. 17. |