sequence would follow, that secondary evidence of testimony might be received under circumstances that would exclude the testimony itself. If, therefore, it should appear that depositions were taken, either by parties not legally authorised to take them,' or without the sanction of an oath or affirmation, or in the absence of the party against whom they are offered, when, as in most criminal investigations, his presence was requisite, they cannot be received." 6 § 466. But although the party, against whom depositions are 435 offered in evidence, must have had an opportunity of being present at the examination, and of cross-examining the witness,-and therefore, if a commission be executed without any notice, or without a sufficient notice, being given to the opposite party, to enable him, if he pleases, to put cross-interrogatories, the depositions will be rejected,—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. So, where a defendant, after joining the plaintiff in obtaining 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 order were admissible in evidence, although the defendant had received no notice of the time and place of taking them." 8 1 12 Vin. Ab., Ev. A. b. 31; B. N. P. 241. 2 The admissibility of depositions taken before a coroner, in the absence of the accused, will be discussed hereafter. See post, 494. In R. v. Eriswell, 3 T. R. 721, Ld. 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 privity of estate or interest with them." 5 Att.-Gen. v. Davison, M'Clel. & Y. 160. 6 Fitzgerald v. Fitzgerald, 3 Swab. & Trist. 397. 'Steinkeller v. Newton, 1 Scott, N. R. 148; 8 Dowl. 579; 9 C. & P. 313, S. C. 8 Cazenove v. Vaughan, 1 M. & Sel. 4. 9 M'Combie v. Anton, 6 M. & Gr. 27. § 467.' The admissibility of this evidence seems to turn, rather 436 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. 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. And although the two trials be 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. 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.* So, in criminal cases, a deposition taken on a charge either of assault and robbery, or of stabbing, or of doing grievous bodily harm, can, after the death of the witness, be read upon a trial for murder, where the two charges relate to the same transaction; and, indeed, if this were not the law, the depositions of the deceased would, in all cases of homicide, be most improperly excluded. In one case,' 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 in 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. So, on another indictment for murder, a deposition of the deceased taken on a prior charge of larceny against the accused was read, but this course was allowed, not as furnishing any evidence of the facts de 1 Gr. Ev. 164, in part. 2 Wright v. Doe d. Tatham, 1 A. & E. 3. 3 Com. Dig., Ev. A. 5, explained by Littledale, J., in Doe v. Derby, 1 A. & E. 790; Doe v. Powell, 3 C. & Kir. 323. *Doe v. Foster, 1 A. & E. 791, n. b, per Alderson, B.; B. N. P. 232; Llanover v. Homfray, L. R., 19 Ch. D. 224. 5 R. v. Smith, R. & R. 339; 2 Stark. R. 208, S. C.; R. v. Lee, 4 Fost. & Fin. 63, per Pollock, C. B.; R. v. Dilmore, 6 Cox, 52, per Wightman, J.; R. v. Beeston, 24 L. J., M. C. 5; Pearce & D. 405, S. C.; R. v. Williams, 12 Cox, 101. 6 2 Stark. R. 212, note by the reporter. 7 R. v. Edmunds, 6 C. & P. 164, per Tindal, C. J. posed, but simply as affording a motive for revenge on the part of the prisoner.' § 468. If the point in issue, though very similar, was so far 437 different in the two proceedings, that the witness, who was called to prove or disprove the issue in the former, need not have been fully cross-examined in regard to the matters in controversy in the latter, his deposition, if tendered on the second trial, will be excluded; and on this ground it has been held-though, perhaps, with questionable propriety-that a deposition taken on a charge of assault could not afterwards be received on an indictment for wounding. Again, it has been held in America, that where the issue in one action had been upon a common or free fishery, and that in another action was upon a several fishery, evidence of what a witness, since deceased, had sworn upon the former trial, was inadmissible.* 2 3 § 469. In stating that this rule mainly depends on the right of § 433 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." § 470. It has already been stated that secondary evidence of oral 439 testimony cannot be received so long as the witness himself can be called; but an attempt was, some years ago, made in equity to engraft an exception on this wise rule, whenever depositions have been taken against a party in one suit, who is also a party to a 1 R. v. Buckley, 13 Cox, 293, per Lush, J. 2 R. v. Ledbetter, 3 C. & Kir. 108; commented upon in R. v. Beeston, 24 L. J., M. C. 5. 3 Gr. Ev. 164. Melvin v. Whiting, 7 Pick. 79; Jackson r. Winchester, 4 Dall. 206. 5 Morgan v. Nicholl, 36 L. J., C. P. 86; 2 Law Rep., C. P. 117, S. C. Doe v. Derby, 1 A. & E. 783, 786. second suit, wherein substantially the same questions arise. The case in which this point was mooted was that of Blagrave v. Blagrave.' There, a person was tenant for life of certain real and personal estate. Two suits were instituted against him in respect of alleged mismanagement of the property, the one being commenced by the tenant for life in remainder, and referring only to the real estate, the other being commenced by the first tenant in tail, and embracing both the real and the personal estate. The objects sought in each suit, though not entirely identical, were to a great extent the same. Under these circumstances it was proposed, on the authority of Nevil v. Johnson, Barton v. Palmes, Byrne v. Frere, and particularly, the City of London v. Perkins, to read as against the defendant in the second suit the depositions that had been taken against him in the first, without any proof that the witnesses were dead, or otherwise incapable of being examined. Vice-Chancellor Knight Bruce, however, .very properly held that this course could not be pursued; and his decision would not have deserved any notice, had it not been that his Honour appeared to recognise the case of the City of London v. Perkins, as an authority to a certain extent for the doctrine propounded by the plaintiff's counsel. Now, it is submitted that this is a mistake. 3 5 2 § 471. The real facts were these. The City of London, having 439 filed a bill against Messrs. Perkins to recover certain tonnage dues under an alleged custom, claimed to read, as evidence of reputation with respect to the custom, certain depositions which had been taken by them in two former suits for the recovery of the same species of tonnage against two other defendants. The Court of Exchequer rejected this proof on the ground that the deaths of the witnesses were not shown by "the depositions taken in the cause;" and they refused to allow the plaintiffs to prove by vivâ voce testimony or by affidavit that the witnesses were in fact dead. The plaintiffs appealed, and prayed, among other things, that the order of the court below should be reversed, and that they might be at liberty to read the depositions; whereupon, the House of Lords, 1 1 De Gex & Sm. 252 42 Moll. 157. 3 Prec. in Ch. 233. 53 Br. P. C. 602. 2 2 Vern. 247. [PART II. without granting or alluding to the last paragraph of the prayer, gave judgment that the order be reversed.' It is obvious, therefore, that this case does not decide that depositions can in any event be read in evidence, where the witnesses are capable of being called. Neither can such a doctrine be supported by any of the three other cases cited in Blagrave v. Blagrave. In Byrne v. Frere, it is clear that the witnesses were dead, and there is nothing to show that they were alive, either in Nevil v. Johnson,* or in Barton v. Palmes.5 § 471A. Although the case of Blagrave v. Blagrave was clearly a right decision, the Rules of the Supreme Court, 1883, have so far relaxed the law there recognised, as to provide, by Ord. XXXVII., R. 25, that "all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter." 6 § 472. Returning now to the rule which rejects secondary 440 evidence of oral testimony so long as the witness can himself be called, it should be observed, that the common law regards a witness as incapable of being called,-1, When he is dead; 2, When he is out of the jurisdiction of the court, or possibly, when he cannot be found after diligent inquiry; 3, When he is either insane, or seriously sick; and 4, When he is kept out of the way by the contrivance of the opposite party. 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.' 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 1 See and compare, 3 Br. P. C. 602, and 24 Lords' J. 448, under date 28th Jan., 1734. See, also, Carrington v. Cornock, 2 Sim. 567. 2 1 De Gex & Sm. 252. 5 Prec. in Ch. 233. 3 2 Moll. 157. 4 2 Vern. 447. See post, 506, citing Rules of Sup. Ct., 1883, Ord. XXXVII., R. 18. |