employment, shall have committed any offence. By § 3 of this last-named statute, as also by § 81 of 24 Geo. 3, c. 25, the Court of Queen's Bench, instead of directing the evidence to be taken vivâ voce, is empowered, on motion made by the AttorneyGeneral, prosecutor, or defendant, to order that an examination de bene esse of witnesses upon interrogatories, in any case where the vivâ voce testimony of such witnesses cannot conveniently be had, should be taken before an examiner appointed by the Court; and the depositions so taken shall be read, and deemed sufficient evidence, upon the trial of the indictment or information, or in any subsequent proceedings relating thereto, saving all just exceptions to the same. The Legislature has also, by the Act of 6 & 7 Vict., c. 98, § 4, extended the provisions contained in 13 Geo. 3, c. 63, § 40, to all indictments or informations laid or exhibited in the Court of Queen's Bench, for misdemeanors or offences committed against the Acts passed for the suppression of the slave trade, in any places out of the United Kingdom, and within any British Colony, settlement, plantation, or territory.

§ 470. By none of these statutes is the party, who seeks to use the depositions, directed to prove, that the witnesses, at the time of the trial, are beyond the jurisdiction of the Court. Still, upon general principle, some slight evidence of this nature would seem to be requisite; for although the language of the Acts, rendering the depositions evidence, is exceedingly strong, it may well be doubted whether an express enactment would not be necessary, in order to override the long established rule of law, that when a witness is living within the jurisdiction of the Court, and the party who requires his evidence has the power of calling him, his deposition cannot be read. This view of the subject is confirmed by the subsequent enactments of 1 Will. 4, c. 22, Eng., and 3 & 4 Vict., c. 105, Ir., which expressly provide that depositions taken under them shall be deemed merely secondary proof.

§ 471. The Act of 1 Will. 4, c. 22, after reciting that "great difficulties and delays are often experienced, and sometimes a failure of justice takes place, in actions depending in courts of

law, by reason of the want of a competent power and authority in the said courts to order and enforce the examination of witnesses, when the same may be required before the trial of a cause;" and further reciting, that it is expedient to extend the powers and provisions contained in the Act of 13 Geo. 3, c. 63, enacts, in § 1, that "all and every the powers, authorities, provisions, and matters, contained in the said recited Act, relating to the exami nation of witnesses in India, shall be, and the same are * hereby extended to all colonies, islands, plantations, and places, under the dominion of His Majesty in foreign parts, and to the judges of the several courts therein, and to all actions depending in any of His Majesty's courts of law at Westminster, in what place or country soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the Court, to the judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examination of witnesses, under a writ or commission issued in pursuance of the authority hereby given, will be necessary or conducive to the due adminis tration of justice in the matter wherein such writ shall be applied for." The stat. 3 & 4 Vict., c. 105, contains a precisely similar enactment in § 66, with respect to the superior courts of law in Ireland, excepting only that, at the place marked above with an asterisk, the words "with reference to all actions in any of her Majesty's courts of law at Dublin are introduced; and the insertion of this clause is here noticed, because the omission of corresponding words in the Act of Will. 4, has raised some slight doubt whether § 1 of that statute does not apply to criminal proceedings in the Court of Queen's Bench, as well as to actions in any of the superior law courts. It is, however, clear that both of these enactments are inapplicable to informations filed by the Attorney-General in the Court of Exchequer, for penalties under the revenue laws; and, further, that they do not extend to any

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The costs of the writ or commission, whether under the Act of 13 Geo. 3, c. 63, or 1 Will. 4, c. 22, or 3 & 4 Vict., c. 105, and of the proceedings thereon, are in the discretion of the Court issuing the same. See 1 Will. 4, c. 22, § 3, and 3 & 4 Vict., c. 105, § 68.

2 R. v. Wood, 7 M. & W. 573, per Parke, B.

3 Att.-Gen. v. Bovet, 15 M. & W. 60; recognised in R. v. Upton St. Leonard's, 10 Q. B. 836.

actions instituted at the suit of the Crown; for the Crown is not bound unless specially named.'

$472. The alterations effected by these Acts do not rest here; but § 4 of the one, and § 69 of the other, respectively enact, that it shall be lawful for each of the courts of law at Westminster or Dublin, and the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham, and the several judges thereof, "in every action depending in such court, upon the application of any of the parties to such suit, to order the examination on oath, upon interrogatories or otherwise, before the master or prothonotary of the said court, or other person or persons to be named in such order, of any witnesses within the jurisdiction of the court where the action shall be depending, or to order a commission to issue for the examination of witnesses on oath at any place or places out of such jurisdiction, by interrogatories or otherwise, and by the same or any subsequent order or orders to give all such directions touching the time, place, and manner of such examination, as well within the jurisdiction of the court wherein the action shall be depending as without, and all other matters and circumstances connected with such examinations as may appear reasonable and just."" Under this enactment it has been held, that an order for a commission may be granted, though the action pending in the court be merely an issue directed by the Court of Chancery; and though it be in the nature of a criminal charge; but the language employed is not sufficiently comprehensive to include either indictments, or criminal informations,'

1 R. v. Wood, 7 M. & W. 571; 9 Dowl. 310, S. C.

* Sec. 11 provides that no order shall be made in pursuance of this Act by a single judge of the Court of Pleas at Durham, unless he be a judge of one of the law courts at Westminster.

'The costs of the rule or order, and of the proceedings thereupon, are to be costs in the cause, unless otherwise directed, either by the judge making the rule or order, or by the judge before whom the cause may be tried, or by the court. See 1 Will. 4, c. 22, § 9; and 3 & 4 Vict., c. 105, § 74. Bourdeaux v. Rowe, 1 Bing. N. C. 721; 1 Scott, 608, S. C.

5 Norton v. Melbourne, 3 Bing. N. C. 67; 3 Scott, 393; 5 Dowl. 181, S. C., nom. Norton v. Lamb.

6 R. v. Lady Briscoe, 1 Dowl. 520, per Parke, J.

7 R. v. Upton St. Leonard's, 10 Q. B. 827.

or informations in the Court of Exchequer for breach of the revenue laws,' or actions at the suit of the Crown. Neither will a commission be granted for the examination of witnesses in an enemy's country pending hostilities."

§ 473. It does not fall within the scope of this work to furnish minute directions as to the course to be pursued by parties, who seek under these Acts, either for an order to examine witnesses at home, or for an order for a commission, when the witnesses are abroad; but a few of the more important decisions may briefly be noticed. The Court or judge-for applications of this nature may generally be made to either—will not, except in an extreme case of urgency, to prevent the defeat of justice,' make an order either for the examination of witnesses, or for a commission, until after issue has been joined; for before that step has been taken it cannot well be ascertained what witnesses are material, neither is it easy to discover how a false witness can be indicted for perjury. An order, however, may be made prospectively, with reference to a new trial, in case the verdict already obtained should be set aside; and if the witness reside beyond the jurisdiction of the Court, the application should be made as soon as possible after issue joined. In the case of a foreign commission, the order must specify the place, and also, within certain limits, the time, of examination; but it need not name the witnesses to be examined." Neither is it necessary that the order should contain the names of the commissioners, but the parties are usually left to determine by subsequent arrangement who the commissioners shall be, and their names are then inserted in the

1 Att.-Gen. v. Bovet, 15 M. & W. 60.

2 R. v. Wood, 7 M. & W. 571; 9 Dowl. 310, S. C.

3 Barrick v. Buba, 16 Com. B. 492.

4 See ante, p. 434, n. 3.

Finney v. Beesley, 17 Q. B. 86. See Braun v. Mollett, 16 Com. B. 514. 6 Mondel v. Steele, 8 M. & W. 300; 9 Dowl. 812, S. C.; Clutterbuck v. Jones, 6 Dowl. & L. 251, per Patteson, J.; Dye v. Bennett, 1 L. M. & P. 92, n. a. 7 Hall v. Rouse, 4 M. & W. 27, per Parke, B.

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Brydges v. Fisher, 4 M. & Sc. 458. But see Weekes v. Pall, 6 Dowl. 462. ' Greville v. Stulz, 11 Q. B. 997; Simms v. Henderson, id. 1015. But the omission of these directions is a mere irregularity, which may be waived. See Howkins v. Baldwin, 2 L. M. & P. 250; 16 Q. B. 375, S. C.

10 Nicol. Alison, 11 Q. B. 1012, per Patteson, J.

commission. Moreover, the commission is not a writ, and therefore it need not be tested in term time, if, indeed, any teste be necessary, which is extremely doubtful."

§ 474. The affidavit in support of the motion must, except under very special circumstances,' state the names of at least some of the witnesses proposed to be examined, or otherwise describe who they are; though, to support a commission from the Court of Chancery, this precision will not be deemed essential, where the pleadings clearly show that the examination of witnesses is necessary. It should also state that the witnesses are material and necessary, though it need not, in general, add, either that their evidence is admissible, or that the application is made bonâ fide, or that the party moving has a good case on the merits; but, if the granting the commission would necessarily occasion great delay, and if the adverse affidavits were to show grounds for assuming that the witness would not be material or necessary," then the Court, in the exercise of its discretion, would probably not be satisfied unless the affidavit in support of the motion should point out, not only in what manner the evidence would be material, but also, that it would be admissible; and if

1 Nicol v. Alison, 11 Q. B. 1006.

2 Id.

3 Cow v. Kinnersley, 7 Scott, N. R. 892; 6 M. & Gr. 981; 1 Dowl. & L. 906, S. C., where the defendant, who required the commission, was an executrix, and was ready to bring the amount claimed into court to abide the event.

4 Gunter v. M'Tear, 1 M. & W. 201; 4 Dowl. 722, S. C., nom. Gunter v. M'Kear; Beresford v. Easthope, 8 Dowl. 294; Dimond v. Vallance, 7 Dowl. 590. In Boyce v. Rusboro', 2 Ir. Law R., N. S., 266, where a commission was applied for to examine witnesses in Canada, and the affidavit in support of the motion did not give the names, descriptions, and residences of the witnesses; the Court, in directing the commission to issue, made an order that the opposite side should be furnished with these particulars within a reasonable time.

Carbonell v. Bessell, 5 Sim. 636; Rougemont v. Royal Ex. Ass. Co., 7 Ves. 304; M'Hardy v. Hitchcock, 11 Beav. 93.

6 Norton v. Melbourne, 3 Bing. N. C. 67; 3 Scott, 398; 5 Dowl. 181, S. C.; Dye v. Bennett, 1 L. M. & P. 92.

7 Baddeley v. Gilmore, 1 M. & W. 55; Tyr. & Gr. 369, S. C.; Westmoreland v. Huggins, 1 Dowl. N. S. 800.

8 Dye v. Rennett, 1 L. M. & P. 92.

9

Lloyd v. Key, 3 Dowl. 253, per Parke, B.; Lane v. Bagshaw, 16 Com. B. 576.