PROOF BY AFFIDAVITS OR DEPOSITIONS.

As has been already stated, proofs are usually, except by agreement between the parties, to be given at the trial by the oral evidence of witnesses, ante, p. 152; in certain cases, however, affidavits or depositions are allowed to be substituted for such oral evidence.

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The following are the rules relating to the subject. By Rules, 1883, 0. xxxvii. r. 1, the court or a judge may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial on such conditions as the court or judge may think reasonable, or that any witness, whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner; provided that where it appears to the court or judge that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit." By rule 3, "An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on "other than ex parte applications, upon the party desiring to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence." By rule 4, "Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice shall be admissible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would be admissible." See observations on this rule, ante, p. 97. By rule 5, The court or a judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the court or judge or any officer of the court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court or a judge may direct." Rule 6 provides the form of order for a commission to examine witnesses, and of the writ of commission. By rule 16, the depositions authenticated by the signature of the examiner are to be transmitted by him to the central office and there filed. By rule 24, "No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the court or a judge be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf." By O. xxxviii. r. 3, "Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted." By rule 16, "No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself." By rule 17, "Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner."

Affidavits or depositions so taken will, under O. xxxvii. r. 4, supra, be proved at the trial by production of office copies; see also Duncan v. Scott, 1 Camp. 101; Fleet v. Perrins, L. R., 3 Q. B. 536; L. R., 4 Q. B. 500, Ex. Ch.; but the order so to take evidence must, it seems, be previously

proved. See Bayley v. Wylie, 6 Esp. 85, post, p. 186. The judge cannot, under rule 1, at the trial, order an affidavit to be read, when the opposite party bonâ fide desires the witness to be produced for cross-examination; Blackburn Union v. Brooks, 7 Ch. D. 68; unless the witness cannot be found. See Gornall v. Mason, 12 P. D. 142.

By Rules, 1883, O. xxxviii. r. 25, "Within fourteen days after a consent for taking evidence by affidavit as between the parties has been given, or within such time as the parties may agree upon or the court or a judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof." Rule 26: "6 The defendant within fourteen days after delivery of such list, or within such time as the parties may agree upon, or the court or a judge may allow, shall file his affidavits and deliver to the plaintiff or his solicitor a list thereof." Rule 27: "Within seven days after the expiration of the last-mentioned fourteen days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof." Rule 28: "When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the court or a judge may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the court or a judge."

The consent under rule 25 must be a formal consent in writing. New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278. It may be given by the guardian ad litem of an infant. Knatchbull v. Fowle, Id. 604. The plaintiff may use affidavits in reply which are confirmatory only of his evidence in chief, notwithstanding rule 27. Peacock v. Harper, 7 Ch. D.

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Unless the agreement has been that evidence should be given by affidavit only, the affidavits may be supplemented by the oral evidence of the deponents. Glossop v. Heston, &c. Local Board, 47 L. J., Ch. 536.

Where the defendant's evidence is given by affidavit, supplemented by the oral testimony of the deponents, the plaintiff is not entitled to crossexamine those deponents whose affidavits had not been read. Massam v. Thorley's Cattle Food Co., W. N., 1879, p. 181, Malins, V.-C. As to the power of the judge to order a trial by witnesses, and to exclude the affidavits filed, see Lovell v. Wallis, W. Ñ., 1883, p. 231, Mich. S., Kay, J. The power of authorising the examination of witnesses out of court was formerly given to the courts of common law by stat. 1 Will. 4, c. 22. These provisions of the statute are no longer in force, but it is necessary shortly to state them, and the decisions thereon, as they may afford some guide to the practice under 0. xxxvii. r. 5, ante, p. 184. Sect. 4 empowered a judge to order any witness within the jurisdiction to be examined orally before an officer of the court or other person named in the order, or to order a commission to issue to examine in places out of the jurisdiction; the same or a subsequent order was to give "directions touching the time, place, and manner of such examination." Sects. 5 et seq., contained provisions for examination of witnesses on oath and for the production of documents. By sect. 10, "no examination or deposition to be taken by virtue of this Act 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."

Except in the case of lost commissions of ancient date, the commission must have been proved at the trial, in order to make the examination evidence. Bayley v. Wylie, 6 Esp. 85; Rowe v. Brenton, 8 B. & C. 765. And on the same principle it seems that where the examination is taken by order, the order should be produced, though the certified examinations themselves require no proof, being made evidence by the 8 & 9 Vict. c. 113, s. 1, ante, p. 100, and may be proved by office copies under O. xxxvii. r. 4, ante, p. 184.

The inability of the witness to attend must have been proved by a witness who knew it otherwise than by hearsay. Robinson v. Markis, 2 M. & Rob. 375. The court would not interfere with the discretion of the judge exercised under this section, unless he had been misled by false evidence. Beaufort, Dk. of v. Crawshay, L. R., 1 C. P. 699. It appears that the affidavit of the witness's ordinary medical attendance was sufficient evidence. Ibid. "Permanent sickness," meant such as to preclude the hope of deponent attending the trial within a reasonable time. Ibid. Where the witness had actually sailed, the depositions were allowed to be read, though the vessel was, at the time of trial, driven back into port by contrary winds. Fonsick v. Agar, 6 Esp. 92. It was held not sufficient that the witness was a seafaring man, and that he lately belonged to a vessel lying at a certain place, without proving some effort had been recently made to procure his attendance. Falconer v. Hanson, 1 Camp. 172.

Where depositions on interrogatories are read on the part of the plaintiff, the whole, including the answers to the cross-interrogatories, must be read as part of his case. Temperley v. Scott, 5 C. & P. 341. The answers to illegal questions put under the authority of a commission, might be objected to, and struck out at Nisi Prius; but not by the party who put the question. Hutchinson v. Bernard, 2 M. & Rob. 1. The deposition might be read, though it appeared on the face of it that the deponent referred to papers not shown to the commissioners. Steinkeller v. Newton, Id. 372. So, where copies of documents and oral evidence relating to their contents were received by the commissioners without objection from the other party who joined in the commission, it was held that the latter could not, at the trial, object to the non-production of the originals. Robinson v. Davies, 5 Q. B. D. 26. Where the commission was issued irregularly, or the execution was against good faith, yet it seems the judge must have received the depositions at Nisi Prius, if there was due notice of execution to the other side; though the court might, under such circumstances, set aside the verdict and grant a new commission. Steinkeller v. Newton, as reported (variously) in 1 Scott, N. R. 148; 8 Dowl. 579; and 9 C. & P. 313. See White v. Hallett, 28 L. J., Ex. 208, where it seems to have been doubted whether notice of the execution was necessary, if there was notice of the commission. Where the commission directed the depositions to be returned, certified copies returned were inadmissible. Clay v. Stephenson, 7 Ad. & E. 185. The depositions could not be read if the order, on which the commission issued, did not pursue the statute; thus, if it omitted to name a place of examination, though one be inserted in the commission. Greville v. Stulz, 11 Q. B. 997. But if the order was not produced, it was presumed that it was in conformity with the commission. S. C. And the omission made the commission irregular only, and not void, and might therefore be waived

by the conduct of parties; as by acting under it, or using the documents obtained under it and returned with it. Hawkins v. Baldwin, 16 Q. B. 375; 20 L. J., Q. B. 198. Where the order obtained a clause as to the signature of the depositions which was omitted in the commission, and the depositions were not signed in this particular way, it was held that the clause was merely directory, and as the commission had been executed in conformity with the statute, "as to the time, place, and manner of examination," the depositions were receivable in evidence; Hodges v. Cobb, L. R., 2 Q. B. 652; and it appears that a mere irregularity in the execution of the commission could only be taken advantage of by an application to set aside the depositions, and if this had not been done they were admissible in evidence. S. C.; Grill v. General Screw Collier Co., L. R., 1 C. P. 600. The commission was sufficient though the order did not name the commissioners. Nicol v. Alison, 11 Q. B. 1006. If the order and commission required witnesses to be examined apart, this was presumed to have been done, unless the contrary appeared by the depositions returned. Simms v. Henderson, Id. 1015. Where the return was ordered to be made to the master's office, and a clerk of the office produced a commission, return, and examinations, delivered at the office by an unknown party, and it was proved that it was the same commission that issued, and the signatures of the commissioners to the return were identified, this was held enough to make the examinations admissible without proof that they were the identical examinations sent forth by the commissioners. S. C. Where the deponent refers in his deposition to a former deposition of his, thus:-"Î hand you a legalised copy of a deposition D. which I made at the English consulate, and which I now confirm," and the paper D. was annexed and purported to have been produced to the witness, yet the paper D. was held inadmissible. Alcock v. R. Exchange Assurance Co., 13 Q. B. 292. As to the jurisdiction of a court in India to examine witnesses, to which court had been transferred the jurisdiction of the court to which the commission was directed, see Wilson v. Wilson, 9 P. D. 8, C. A.

As to the use in evidence of depositions taken by a British Consul abroad, vide post, p. 200.

As to proof under the Bankers' Books Evidence Act, 1879, ss. 4, 5, by affidavit that a book is a banker's book and verification of a copy thereof, vide ante, p. 123.

EFFECT OF DOCUMENTARY EVIDENCE.

WE have already seen in what manner various written instruments of a public or private nature are to be proved. Ante, pp. 96 et seq. Under the present head will be collected some of the principal cases relating to the effect and authority of such instruments when duly proved, and the circumstances under which they are admissible evidence of the facts which they purport to show.

Where a document, inadmissible as evidence, has been in part read at the instance of counsel, he cannot afterwards object to the admissibility of the whole of it. Laybourn v. Crisp, 4 M. & W. 320.

Effect of Acts of Parliament.

The preamble of a public general Act of Parliament, reciting the existence of certain outrages, is evidence to prove that fact; because in

judgment of law, every subject is privy to the making of it. R. v. Sutton, 4 M. & S. 532. But it seems that allegations of fact in a public statute are not conclusive; therefore, a place named as a borough or corporation in the Municipal Reform Act, may be proved not to be one. R. v. Greene, 6 Ad. & E. 548. Indeed, recitals in a private Act are not conclusive either of fact or law. R. v. Haughton, 1 E. & B. 501; 22 L. J., M. C. 89. And a private statute, though it contains a clause requiring it to be judicially noticed as a public one, is not evidence at all against strangers, either of notice or of any of the facts recited. Ballard v. Way, 1 M. & W. 520; Brett v. Beales, M. & M. 421; Taylor v. Parry, 1 M. & Gr. 604. But it may be evidence of reputation respecting a franchise as between lords and tenants of a manor. Carnarvon, El. of v. Villebois, 13 M. & W. 313. In Beaufort, Dk. of v. Smith, 4 Exch. 450, a general saving in certain Acts of the plaintiff's rights, including a right of toll on all coal exported within his manor, was considered to be inadmissible evidence of such claim in favour of the plaintiff. It is observable that in both the last cases, the rights saved were of a public nature; the Acts were local and personal, public Acts; and the savings were in the usual form in such Acts. In Carnarvon, El. of v. Villebois, supra, the Act was an inclosure Act, to which the lord and copyholders were, as it were, parties, and the claim was of free-warren over copyholds. In Beaufort, Dk. of v. Smith, supra, the Acts were harbour and canal Acts. As to the effect of the marginal notes, and title, vide ante, pp. 104, 105.

Effect of Proclamations, Gazette, State Papers, &c.

The King's proclamation, being an act of state of which all ought to take notice (per Treby, C. J., Wells v. Williams, 1 Ld. Raym. 283), is evidence to prove a fact of a public nature recited in it, viz., that certain outrages had been committed in different parts of certain counties. R. v. Sutton, 4 M. & S. 532.

The Gazette is evidence of all acts of state published therein; as where it states that certain addresses have been presented to the King, it is evidence to prove that fact. R. v. Holt, 5 T. R. 436. So proclamations may be proved by production of the Gazette. Ibid. 443; Att.-Gen. v. Theakstone, 8 Price, 89; and see the Documentary Evidence Act, 1868, ante, p. 105. But the Gazette is not evidence (unless made so by statute) of matters therein contained which have no reference to acts of state, as a grant by the King to a subject of a tract of land or of a presentation; R. v. Holt, 5 T. R. 443; or of the appointment of an officer to a commission in the army; Kirwan v. Cockburn, 5 Esp. 233; R. v. Gardner, 2 Camp. 513. The statutory effect of the Gazette has been much extended by the Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), and subsequent statutes: vide ante, pp. 105 et seq.

A paper from the Secretary of State's office, transmitted by the British ambassador at a foreign court, and purporting to be a declaration of war by the government of that country against another foreign state, is evidence of the precise period of the commencement of that war. Thelluson v. Cosling, 4 Esp. 266. The existence of a war between this country and another requires no proof. Fost. Cr. L. 219; R. v. De Berenger, 3 M. & S. 67. The articles of war, printed by the King's printer, are evidence of such articles; R. v. Withers, cited 5 T. R. 446; of which, it seems, the court will take judicial notice. Per Abbott, C. J., Bradley v. Arthur, 4 B. & C. 304; vide ante, p. 83. By the Bankruptcy Act, 1883, s. 132, the Gazette is evidence, in some cases conclusive, of certain proceedings in bankruptcy stated therein, vide post, Part III., Actions by trustees of bankrupts.