300 CHAPTER III. ON DEPOSITIONS. In the preceding chapter the character and formal proof of writings of a public and judicial nature have been considered. In the present chapter the writings are of the same character; but since they are comprised under a large general title, they will be considered conveniently in a separate division. Depositions are secondary evidence, and are generally inadmissible where the original witness can be produced; but admissible in certain cases, and subject to certain common law and statutory restrictions, when he cannot be produced. The principle of this exclusion in the first instance rests on the hearsay nature of such evidence, and the prejudice to the adverse party who loses the benefit of his cross-examination. Absolutely and universally, they are inadmissible when such party has had no opportunity of controlling and explaining the evidence at the time of deposition, by cross-examining the deponent. But where he has had such opportunity, he is, in certain instances where public policy recommends such a course, affected by such testimony of an absent witness. Thus, a voluntary affidavit, as already stated,' is no evidence against another, for the courts will never try a question of fact on affidavits. A deposition, also, to be in any case admissible, must refer to the same 1 Supra, .p. 289. parties, or their privies, and where there is the same substantial issue. It is on this principle that the evidence of a witness in a former action may, after his decease, be read in a subsequent action. Thus, also, in criminal cases, a deposition taken on one charge cannot be read on a different charge. But it is sufficient in such a case that the charges should be substantially identical, or so connected as to create a reasonable presumption that the prisoner's mind, at the time of the first charge, was sufficiently directed to the matters which form the substance of the subsequent charge. Thus, where the prisoner was charged before magistrates with wounding A. with intent to do her some grievous bodily harm, and was afterwards indicted for wounding A., A.'s deposition on the original charge was received on the subsequent charge, because the prisoner had had necessarily full opportunity of cross-examining A.2 4 Where the deposition is received, it operates as a complete substitution for the evidence of the witness.3 But if it be wanting in any statutory formalities, as, if it be not signed by the magistrate or coroner, or if it contain hearsay, such as a letter purporting to have been written by the deponent but not produced, the deposition will, in the former case, be wholly inadmissible, and in the latter, the part purporting to recite the letter must be omitted.5 We proceed to consider DEPOSITIONS IN CRIMINAL CASES. At common law, depositions taken in the presence of a prisoner before a magistrate, and signed by the latter, were generally evidence against the prisoner on his trial if it appeared that he had had an opportunity of cross-examining the witness, and that the witness at the time of trial was either dead, or permanently unable to travel, owing to illness, or that he had been kept out of the way by the prisoner, or by some one on the prisoner's behalf, in order to prevent him from giving evidence against him. The admissibility of these depositions is now subject to the 11 & 12 Vict. c. 42, s. 17, by which it is enacted, that in all cases where any person shall be charged before any justice of the peace with any indictable offence, "such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement on oath or writing of those who shall know the facts and circumstances of the case, and shall put the same into writing; and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness be examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and authority to do; and if upon the trial of the person so accused as first aforesaid it shall be proved, by the oath or affirmation of any credible witness, that any person, whose deposition shall have been taken as aforesaid, is dead, or so ill as not to be able to travel; and if, also, it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same.” Before a deposition can be received under this section it must therefore appear 1. That it was taken in the presence of the prisoner, and that he either cross-examined, or had an opportunity of cross-examining, the deponent. 2. That it has been signed by the witness and also by the magistrate. The Christian name of the witness may be proved by any one who saw the witness sign.1 3. That it was made on oath by the witness, or on affirmation, in such cases only in which an affirmation is allowed. 4. That the deponent is either dead, or so ill as not to be able to travel. Only the first and last of these conditions is required to be distinctly proved, and the last is usually proved first. The signatures, purporting to be authentic, are presumed to be so until proved to be otherwise; and the deposition is declared on the face of it to be taken on oath. It is not enough to show that the deposition purports to be signed by the magistrate, but it must also be shown affirmatively by the prosecutor that the deposition was taken in the presence of the prisoner, and that he or his counsel or attorney had a full opportunity of cross-examining the witness; and, when the prisoner is not attended by counsel or attorney, it ought also to appear that the magistrate had asked him whether he would like to cross-examine, and that he had allowed the prisoner suffcient time to consider what questions he would put.2 It is to be observed on the last condition, that it does not contain all the circumstances in which a 1 R. v. Foote, 26 L. J. 79, M. C. 2 Platt, B.: R. v. Day, 19 L. T. 35. deposition is generally admissible. Thus, before the statute, the deposition was received at common law, not merely on proof that the deponent was either dead or so ill as to be unable to travel, but if he were proved to have become permanently insane,1 or to be actually insane at the time of trial with a possibility of recovery.2 2 So, it neither was nor is necessary to show that the illness under which a deponent is suffering is of a permanent, or of more than a temporary nature. But where the illness of the witness is proved to be of a very transitory nature, the judge may and will, in his discretion, postpone the trial until he recover; and this is the proper course whenever such postponement does not clearly clash with public convenience. But the illness must be real and serious, and there must either be a physical incapability of locomotion, or a probability that it might dangerously affect the witness's health.3 It is desirable, when it is possible, to prove this fact by a medical attendant, but it may be proved by any one who has seen and examined the deponent recently. The court will inquire scrupulously and even suspiciously into all thesse circumstances before receiving the deposition; and will reject it when the alleged illness appears to be not dangerous or serious enough to excuse the absence of the deponent. Thus, at the Salisbury Spring Assizes, 1853, Crompton, J., held that the fact of a woman being within a month of her confinement was insufficient, in her absence, to render her deposition admissible. But immediately after, at Exeter, the same learned judge considered that it might be received when it appeared, in such a case, that the woman was expecting every hour to be confined. So, where a witness had had an attack of paralysis, his deposition was read, although it would not have endangered his life to come into 1 R. v. Eriswell, 3 T. R. 707. |