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ANSWER TO INQUIRIES AFTER WITNESS.

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Morley's case, and to that of Mr. Justice Coltman in R. v. Hagan; for it might be reasonably suspected in both these cases, that as the witnesses were not forthcoming after having had notice that their attendance would be required at the trial, they had purposely absconded, from a consciousness of the inaccuracy of their former statement. Regarded in this light the decisions are sound law; and the evidence that was rejected by each of them would, under similar circumstances, have been held inadmissible in a civil cause.

§ 350. How far answers to inquiries respecting the witness are admissible to prove that he cannot be found, is not very clearly defined by the decisions. That such answers will be rejected as hearsay, if tendered in proof of the fact that the witness is abroad is beyond all doubt (b); but where the question is simply whether a diligent and unsuccessful search has been made for the witness, it would seem, both on principle, and on authority, that the answers should be received, as forming a prominent part of the very point to be ascertained (c). In order to show that inquiries have been duly made at the house of the witness, his declarations as to where he lived cannot be received (d); neither will his statement in the deposition itself that he is about to go abroad, render it unnecessary to prove that he has put his purpose in execution (e).

§ 351. If the witness be proved at the trial to be insane, his deposition will be admissible in the same manner as if he were dead (f); and it has been said that this is so, though the insanity be only temporary (g). This, however, appears to be carrying the doctrine beyond its legitimate extent; for since the casual illness of a witness will not, as we shall presently see (h), warrant the reading of his former testimony, but will only furnish good ground for moving to postpone the trial, the same rule should

(b) Robinson v. Markis, 2 M. & Rob. 375, per Lord Abinger; Doe v. Powell, 7 C. & P. 617, per id.; post, § 367.

(c) Wyatt v. Bateman, 7 C. & P. 586, per Coleridge, J.; Burt v. Walker, 4 B. & A. 697. (d) Doe v. Powell, 7 C. & P. 617.

(e) Proctor v. Lainson, 7 C. & P. 631, per Lord Abinger. (ƒ) R. v. Eriswell, 3 T. R. 720, 721, per Ashhurst, J., and Lord Kenyon. (9) R. v. Marshall, C. & Marsh. 147, per Ludlow, S., after consulting Coltman, J. (h) Post, § 352.

334 SECONDARY EVIDENCE WHEN WITNESS INSANE OR SICK.

surely prevail in the event of a witness being afflicted with temporary madness. No sensible distinction can be drawn between the two cases. Where depositions are tendered on the ground of the witness being insane, it may sometimes be advisable to show that his intellects were sound at the time of his previous examination; and this course may even be necessary, if such examination were had but a short time before the trial (¿).

§ 352. It is somewhat difficult to discover from the authorities what degree of illness must be proved in order to let in depositions at common law. In an old case, where a witness on his journey to the place of trial, was taken so ill as to be unable to proceed, his deposition was allowed to be read (j); but too much weight must not be given to this decision, since, if the course there adopted were ordinarily allowed, there would be very sudden indispositions and recoveries (k). The rule laid down by Lord Ellenborough, that, where a witness is taken ill, the party requiring his testimony should move to put off the trial, is certainly less open to objection and abuse (). In the criminal courts, this practice has long prevailed, and it has there been expressly decided, that the deposition of a woman, who was so near her confinement as to be unable to attend a trial, could not be received (m). If, however, from the nature of the illness or other infirmity, no reasonable hope remains that the witness will be able to appear in court on any future occasion, it seems that his depositions are admissible in criminal (n), as they certainly are in civil (0), courts.

§ 353. The proposition that, if a witness be kept out of the way

(i) R. v. Wall, per Park, J., cited 2 Russ. C. & M. 890.

(j) Lutterell v. Reynell, 1 Mod. 284.

(k) Harrison v. Blades, 3 Camp. 458, per Lord Ellenborough; Jones v. Brewer, 4 Taunt. 47, per Heath, J.

(7) Harrison v. Blades, 3 Camp. 458.

(m) R. v. Savage, 5 C. & P. 143, per Patteson, J.

(n) R. v. Hogg, 6 C. & P. 176, per Gurney, B.; R. v. Edmunds, id. 165, per Tindal, C. J.; R. v. Wilshaw, C. & Marsh. 145.

(0) Jones v. Jones, 1 Cox, 184; Andrews v. Palmer, 1 Ves. & B. 22; Fry v. Wood, 1 Atk. 445; Corbett v. Corbett, id. 335, 336. The case of Doe v. Evans, 3 C. & P. 219, where Vaughan, J., is said to have rejected the depositions of a witness, who was bed-ridden and nearly a century old, and quite unable to attend the trial, is obviously not law.

EFFECT OF KEEPING WITNESS OUT OF THE WAY.

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by the adversary, his former statements on oath will be admissible, rests partly on the authority of several old decisions, both in the civil and criminal courts (p), and of a modern dictum by Mr. Baron Parke (q); partly on the analogies furnished by one or two statutes (r); but chiefly on the broad principle of justice, which will not permit a party to take advantage of his own wrong.

§ 354. The effect of a disqualifying interest, subsequently acquired by the witness, as laying the foundation for the admission of proof of his former testimony, remains to be considered. In courts of equity, it has long been the established practice to admit the deposition of a witness, who has become interested by operation of law, in the same manner, and to the same extent, as if he were dead, insane, or otherwise incapacitated; and the same rule prevails on the trial, at law, of an issue out of Chancery. Thus, where a plaintiff in equity died, and his executor, who had been previously examined as a witness, revived the suit, the deposition of such executor has, on several occasions, been ordered to be read (s). In Glynn v. The Bank of England (t), Lord Hardwicke thus laid down the law. "Where a witness is examined on interrogatories, being at that time indifferent, and afterwards by accident becomes interested in the matter in question, the Court has suffered his deposition to be read, and on just reason; because his evidence must be taken as it stood at the time of his examination, which should not be set aside, unless it could be supplied by other evidence."

(p) Lord Morley's case, Kel. 55, 5th Res. ; 6 How. St. Tr. 770, 771, S. C.; R. v. Harrison, 12 How. St. Tr. 851, 852, 868, per Lord Holt; Green v. Gatewick, B. N. P. 243. There "a witness was sworn in a trial at bar in C. B. between the same parties on the same issue, and he was subpoenaed by the defendant to appear at a second trial in K. B. and his charges given him, but he not appearing, persons were admitted to swear what he swore in C. B., for the Court said they would presume he was kept away by the plaintiff's practice. This supposition was strengthened by his having been produced by the plaintiff at a former trial." It may be doubted whether, at the present day, the Courts would feel authorised in making so offensive a presumption on such slight grounds; but the principle of the case would probably be recognised.

(9) R. v. Guttridge, 9 C. & P. 473. See also Egan v. Larkin, 1 Arm. Mac. & Ogle, 403, per Brady, C. B.

(r) See 50 Geo. 3, c. 102, § 5; and 56 Geo. 3, c. 87, § 3, noticed post, § 358. (s) Andrews v. Beauchamp, 7 Sim. 65; Haws v. Hand, 2 Atk. 615; Goss v. Tracy, 1 P. Wms. 288, 289, per Lord Cowper; 2 Vern. 699, S. C. (t) 2 Ves. Sen. 42.

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EFFECT OF WITNESS BECOMING INTERESTED.

§ 355. It is said that, except in the case of issues out of Chancery, the Common Law Courts will reject the former testimony of a witness, who, from subsequently acquiring an immediate interest in the suit, cannot himself be called, and two decisions of the olden time certainly support this view of the law. In the first, which was Tilley's case (u), depositions in perpetuam rei memoriam had been taken in Chancery, and the inheritance in question afterwards descending to the witness, he became party to an action of ejectment. At the trial, his depositions were tendered in evidence; but the judges of the Common Pleas, and of the King's Bench, with Lord Holt at their head, rejected this proof, observing that, as the depositions could not be read in any case between other parties till after the death of the witness, much less could they be read where the witness himself was a party. Now, unless there be some broad distinction between depositions taken to perpetuate testimony and other examinations, it is quite clear that the first proposition advanced by Lord Holt cannot be sustained; and as the second rests in a great measure upon the first, it can scarcely be entitled to any great weight. If, indeed, depositions for perpetuating testimony are so far distinguishable from other depositions, as to be governed by different legal principles, then the case may be sound law, but its authority on the general question falls to the ground; and with it falls also the case of Baker v. Lord Fairfax (v), where the depositions of a witness, who had become interested after his examination in equity, were rejected at the trial of an issue out of Chancery, the Court feeling themselves bound by the decision in Tilley's case. In opposition to these authorities, it has been stated by Lord Hardwicke, that, "in courts of law, if a subscribing witness to a bond happens to be afterwards representative of the obligee, and is forced to bring an action, you can never examine the plaintiff there; but the rule is to suffer his hand to be proved in like manner as if he had been dead" (w); and in Hovill v. Stephenson (x), Lord Chief Justice Best observed, "There are many cases, where a subscribing witness has acquired an interest after the execution of the instrument attested by him, in which it has

(u) 1 Salk. 286; 2 Lord Raym. 1009, S. C.
(w) Glynn v. Bank of England, 2 Ves. Sen. 42.
(x) 5 Bing. 496, 497.

(v) 1 Str. 101.

EFFECT OF WITNESS BECOMING INTERESTED.

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been decided, that proof of his handwriting may be received to establish such instrument. The handwriting of a subscribing witness, who has been appointed an executor or administrator, or has married the person to whom the instrument was given (y), has been allowed to be proved. We do not dispute the authority of any of those decisions; on the contrary, we should be disposed to extend the principle established by them to the case of a man entering into a partnership, and becoming interested in instruments by acquiring a share in the credits, and taking upon himself the responsibilities of the firm of which he becomes a member. Necessity requires that, in all these cases, such evidence should be received, as otherwise parties must lose the right secured by the instruments attested, or forego accepting of situations most important to their welfare. It would be a hard thing, if the law were to say, that a man should not become an executor or administrator, or accept a beneficial partnership, without giving up debts due to the estates in which he has acquired an interest."

§ 356. It is true that the instances cited in these extracts are, in words, confined to cases, where proof of the signature of an attesting witness will be admissible; but as it is hardly possible to conceive a reason for admitting evidence of handwriting, which does not equally apply to the admission of proof of former testimony, it may, perhaps, be safely asserted, notwithstanding the old authorities to the contrary, that, in all cases, whether at law or equity, the competent depositions or oral testimony of witnesses, who are rendered subsequently incompetent by accident or operation of law, will be receivable in evidence. If, indeed, after a witness has attested an instrument for a party, or has given a deposition in his favour, that party should voluntarily confer upon him such an immediate interest in the subject matter of the suit, as should disqualify his evidence, neither the party nor the witness could complain, though the Court should hold, as they have done, that the signature of the witness could not be proved in the one case, nor his deposition read in the other (2); but as, since Lord Denman's act (a),

(y) Buckley v. Smith, 2 Esp. 697, per Lord Kenyon. (*) See Hovill v. Stephenson, 5 Bing. 493, 497, 498. (a) 6 & 7 Vict. c. 85, § 1.

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