absence of a witness is no ground for reading his deposition, though he cannot be found (z). Where, by mistake, depositions are begun to be taken and put in writing before the prisoner arrives, the party should be re-sworn in his presence, and the depositions then read over to the deponent, who must state them to be correct. The prisoner should then be asked, if he will ask the witness any questions, and nothing should be returned as a deposition unless he has had an opportunity of knowing what was said, and of cross-examining the witnesses (a). The statements elicited on cross-examination should be carefully taken down, and each sheet signed by the magistrates (b). The depositions may afterwards be signed by the magistrate, and when returned by him will be evidence at the trial (c), if proved by him or his clerk, who were present when they were taken; as before stated with respect to confessions (d). ex No vivá voce evidence of the deposition of a witness, (or of the " amination" or confession of a prisoner, see ante, p. 497,) when either takes place before a magistrate, can be admitted at the trial of either a felony or misdemeanour, unless it be clearly proved that in fact the magistrate neglected the duty of reducing it into writing, which is imposed on him by 7 G. IV. c. 64, s. 2, 3 (e). What a prisoner says in other places is, of course, receivable on oral testimony (f). Depositions taken before a coroner under 7 G. IV. c. 64, s. 4, on the oath of persons afterwards charged with the murder, are not within the purview of the sessions (g). Written depositions properly taken as above before a magistrate, are the best evidence of the witness's statement on that occasion, not only in the proceeding for which they are taken, but also in all other proceedings, civil as well as criminal, in which it is sought to give the witness's statement in evidence (h). Examination of Paupers as to Settlements; and herein of Soldiers, &c.]-In general the ex parte examination of a pauper touching his (z) R. v. Morley, Kelynge, 55. R. v. Smith, 2 Stark. R. 208; But a note of a witness's statement before a magistrate, which was not signed by either, need not be produced, and what he said may be proved by any one present. Jeans v. Wheedon, 2 M. & Rob. 486, Cresswell, J. (f) R. v. Jacobs, 1 Leach, 310. (g) As to this, see Reg. v. Owen and others, 9 C. & P. 238; Reg. v. Plummer, C. & Kir. 600. Held not evidence on indictment for murder, Reg. v. Wheeley, 8 C. & P. 250; R. v. Lewis, 6 id. 161. (h) Leach v. Simpson et al. 5 M. & W. 309. settlement, though committed to writing and taken before two justices, is not admissible evidence of such settlement (i); but the examination of a soldier, militiaman, marine, &c. as to his settlement, is made evidence by clauses in the annual mutiny acts, which provide (k), That any justice in the United Kingdom within whose jurisdiction "any soldier in the regular army or on the permanent staff of the militia, having a wife or child, shall be billeted, may summon such soldier before him in the place where he is billeted, which summons he is hereby directed to obey, and take his examination in writing upon oath, touching the place of his last legal settlement in England, and such justice shall give an attested copy of such examination to the person examined, to be by him delivered to his commanding officer, to be produced when required, which said examination and such attested copy shall be at any time admitted evidence as to such last legal settlement before any justice or at any general or quarter sessions, although such soldier be dead or absent from the kingdom; provided that in case any soldier shall be again summoned to make oath as aforesaid, then, on such examination or such attested copy thereof being produced by him or by any other person on his behalf, such soldier shall not be obliged to take any other oath with regard to his legal settlement, but shall leave a copy of such examination, or a copy of such attested copy of examination, if required. On the enactments of this kind which have been long repeated every year with little variation, and have made so material an inroad on the old determinations respecting evidence, it has been decided, first, that there can be only one attested copy in each case entitled to this privilege, viz. that which is delivered to the commanding officer (1); next, that this examination must be authenticated before it can be received in evidence, for it is not one of those instruments which proves itself (m); also that it must state that the soldier at the time he was examined was billeted in the place where the justices have jurisdiction (n); and lastly, that as a copy is declared to be evidence, it follows that the original examination must be admitted also (o). Examination of a Prisoner.]-And by 59 G. III. c. 12, s. 28, " in (i) R. v. Ferrybridge, 2 East, 54. (K) See 1 Vict. c. 17, s. 70. Repeated as to soldiers, in 8 Vict. c. 8; and as to marines, 8 Vict. c. 9, s. 61. (1) R. v. Clayton-le-Moor (Inh.), 5 T. R. 704. (m) R. v. Bilton (Inh.), 1 East, R. 13. (n) R. v. All Saints, Southampton, (Inh.), 7 B. & Cr. 785. See 5 Ad. & E. 191. (0) R. v. Warley (Inh.), 6 T. R. 534. the case of any person having a wife or child, who shall be a prisoner by warrant of commitment in any gaol or house of correction, or in the custody of any keeper of such, or of any constable or peace officer by virtue of a warrant or commitment, any justice of peace may take his examination on oath in writing touching the place of his last legal settlement, which examination such justice shall sign, and it shall be received and admitted in evidence as to such settlement before any justices, for the purposes of any order of removal, so long only as such person shall continue a prisoner." Certificate of Pauper's chargeability-Copy of Order, Minute, &c. of Board of Guardians.]-These documents are now made evidence in some cases (p). Oaths and Affidavits in Courts of Justice.- Voluntary Oaths and Declarations.]-The 5 & 6 W. IV. c. 8, was passed for the purpose of substituting declarations for the oaths and affirmations formerly necessary in many transactions of public business, and for suppressing extrajudicial oaths and affidavits; but being found totally ineffectual for those objects, it was repealed within three months after, by 5 & 6 W. IV. c. 62, which substitutes more considered enactments. (p) By s. 69 of 7 & 8 Vict. c. 101, (passed 9th August, 1844,) it is lawful for any board of guardians, or district board at any meeting thereof, to make a certificate in the form or to the effect contained in the schedule of this act marked (C), and every such certificate, and every copy of a minute of any order, complaint, claim, application, or authority of any such board of guardians, or district board, purporting respectively to be signed by the presiding chairman of such guardians or district board, and to be sealed with their seal, and to be countersigned by their clerk, shall, unless the contrary be shown, be taken to be sufficient proof of the truth of all the statements contained in such certificate, and of the directions respecting such order, &c. having been given as alleged in the copy of such minute, and shall be received in evidence accordingly by and before all courts of justice, and all justices, without any proof of the signatures or of the official characters of the persons signing the same, or of such seal or of such meeting, and that for the purpose By sections 6 & 7 of the latter act, nothing in it extends to dispense with administering the oath of allegiance, or any oath, solemn affirmation, or affidavit, which now is or may hereafter be, or be required to be made or taken "in any judicial proceeding in any court of justice, or in any proceeding for or by way of summary conviction before any justice or justices of the peace.' Sect. 13 recites that a practice had prevailed of administering and receiving oaths and affidavits voluntarily (q) taken and made in matters not the subject of any judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received, and that doubts have arisen whether or not such proceeding is legal; and then enacts, for the more effectual suppression of such practice and removing such doubts, "That it shall not be lawful for any justice of the peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation, touching any matter or thing (r) whereof such justice or other person hath not jurisdiction or cognizance, by some statute in force for the time being: Provided always, that nothing herein contained shall be construed to extend to any oath, affidavit, or solemn affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or punishment of offences, or touching any proceedings before either of the houses of parliament, or any committee thereof respectively, nor to any oath, affidavit, or affirmation, which may be required by the laws of any foreign country to give validity to instruments in writing, designed to be used in such foreign countries respectively" (s). Ancient Deeds.]-Deeds purporting upon the face of them to be (g) See 13 Car. II. c. 12, s. 4, which abolished purgation of crimes by voluntary oath. (r) In indictments for breach of this act, it must be averred what was the "matter or thing" touching which the oath was administered, Reg. v. Nott, 4 Q. B. R. 768; 12 L. J. (M. C.) 142; 1 C. & Mar. 288; but not the particulars of the oath or statement sworn to, ibid. Semble. (9) 5 & 6 W. IV. c. 62, s. 18, reciting whereas it may be necessary and proper in many cases not herein specified to require confirmation of written instruments, or allegations or proof of debts, or of the execution of deeds or other matters, enacts, that it shall be lawful for any justice of the peace, notary public, or other officer now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form in the schedule to the act annexed, and if any declaration so made shall be false or untrue in any material particular, the person wilfully making such false declaration shall be deemed guilty of a misde meanour. This section has been held to extend not only to the declarations mentioned in the act, but to every other sort of declaration, Reg. v. Boynes, 1 C. & Kir. 65. thirty years old or upwards, may be given in evidence without proof of execution; but some account of what custody they are produced from, and other circumstances to show the fairness of the exhibition, may be necessary to entitle them to unqualified credit. If there be any erasures or interlineations, or other circumstances to create doubts, such circumstances must be accounted for, to rebut the presumption of fraud or fabrication (t). In other cases, the only proof of deeds or other writings to which there are subscribing witnesses, is by calling one of them ; unless all be dead, or beyond seas, or incompetent; when the proof is by showing the handwriting of one of them, and the identity of the witness to the deed with the person whose handwriting is proved. Copies.]-It may be laid down as a general rule, that wherever original instruments can be obtained, no inferior evidence of their contents is admissible; but where the record, the contents of which it is necessary to give in evidence, is public property, and cannot be obtained by subpoena, or other process, from the place where it ought always to remain; or where, though private property, it is not produced by the party possessing it on notice or subpoena; or, in such instances as parish registers, and other depositaries where the contents concern the public, attested copies of such records and entries are good evidence (u). copy of a letter taken by a machine worked by the witness who produces the copy may be proved by him as secondary evidence (x). A Private Writings not under Seal, are proved by evidence of the handwriting of the party by whom they purport to be written or signed. This proof may be given either by a person who has seen the party write; or by one who has received letters from him in the course of correspondence, and acted on them (y). It is never necessary that a witness should swear positively to handwriting; it is sufficient if, having means of knowledge, he swears that he believes it to be the handwriting of the individual alleged to be the writer; this belief may be formed even from once seeing the party write (z); and it will be a question whether, under all the circumstances, the belief is such as the jury can safely act "All evidence of handwriting, except where the witness sees the document written, is, in its nature, comparison. It is the belief which on. (t) Bul. N. P. 255. (u) Peake, Ev. 91. See as to inclosure awards, ante, p. 522. (x) Simpson v. Thoreton, 2 M. & Rob. 433. (y) Layer's case, 6 St. Tri. 275; Cary v. Pitt, Peake, Ev. App. 85; cases collected, 2 Phill. Ev. 9th ed. 273. (z) Harrington v. Fry, Ry. & M. N. P. C. 90; Lewis v. Sapio, M. & M. 49. |