witnesses may be obtained under the provisions of the statute 13 G. 3. c. 63. ss. 40. & 44. This statute enacts, that the Court may award a writ of mandamus to the judges of the courts in India, as the case may require, for the examination of witnesses, who are to be examined publicly in the court upon oath, administered according to the form of their several religions; and these depositions, duly taken and returned, in the form prescribed by the act, are to be allowed and deemed as good and competent is then discretionary with the court to grant or refuse the commission, who appoint the commissioners, being the persons sug gested by the respective parties, if not objected to for some valid reason the name of the witness must be inserted in the commission, and interrogatories must be drawn up in writing, a copy served on the opposite party, who is entitled to propound cross-interrogatories, and if there is any disagreement to the propriety of the questions of either party, the interrogatories are to be settled by the court or a judge, and when approved must be annexed to the commission. A commission will not in general be granted until after issue, joined, and is a stay of proceedings for such time as would reasonably be sufficient for the execution and return of the commission. The mode of examining the witnesses and of closing up and returning their examinations are particularly pointed out by the statute and must be strictly observed. Columbian Ins. Co. 3 Johns. Cas. 137. Caines' Rep. 260. Hackley v. Patrick, Biays v. Merrihew, 3 Johns. Rep. 251. 'Caines' Rep. 503. Coles v. Thompson, Ibid. 517. Bouchereau v. Le Guen, 2 Johns. Rep. 196. Vide Vandervoort v. Watson v. Delafield, 2 2 Johns. Rep. 478. Kirby v. Watkies, 1 Where a commission was sent to a foreign country, where the government as a principle refused to let the commissioners act, as being an assumption of sovereign power, but the commission was executed by a judge or court of the country, in presence of the commissioners, the depositions of the witnesses were permitted to be read, as otherwise the course of justice might be impeded, but the court observed they would see that the evidence was fairly taken. Winthrop v. Union Ins. Co. C. C. U. S. P. 2 Condy's Marsh. 706 n. Depositions before com missioners of bankrupt. * 274 evidence, as if the witness had been sworn at the trial, and examined viva voce. The depositions of witnesses, taken by commissioners of bankrupt, could not formerly be given in evidence, in an action to try the question of bankruptcy or any other question connected with it, because in these proceedings the parties interested had not the power of cross-examining the witnesses (3). But now, by the statute 5 G. 2. c. 30. s. 41. Upon petition of any person to the great seal, praying that the commission and the depositions taken thereon, or any part of such depositions, and any other matter or thing relating to the commission, or the proceedings thereon, *may be entered of record, the great seal may direct them to be entered of record; and in case of the death of the witnesses proving the bankruptcy, or in case the commission, depositions, proceedings, or other matters or things, be lost or mislaid, a true copy of the record of such commission, depositions, and proceedings, or other matters or things, signed and attested as therein mentioned, may upon all occasions be given in evidence to prove such commission and the bankruptcy of such person, against whom the commission issued, or other matters or things (a).” These depositions, when recorded, are evidence in an action at law, to prove the precise time when the act of bankruptcy was committed (1); for the witness cannot tell his story before the commissioners, without saying when the act of bankruptcy was committed. He must mention that naturally and of course, and therefore is the more likely to speak the truth. In many cases, its being an act (3) 2 Roll. Ab. 679. pl. 9. Bull. (1) Janson v. Wilson, 1 Doug. N. P. 242. 257. (a) Certified copies of the proceedings filed in the District Court, of the commissioners under the late bankrupt law of the U. S. were held prima facie evidence, against all persons, of the commission, trading, and act of bankruptcy. Rugan v. West, 1 Binney of bankruptcy depends on the time. The legislature considered the commissioners as indifferent persons, examining the witnesses with impartiality, and taking care of the interests of all parties (2). By statute 49 G. 3. c. 121. s. 10., in all actions brought by or against assignees, the commission and the proceedings of the commissioners are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, unless the other party in the action, if defendant, at or before the time of pleading to the action, and if plaintiff, before issue joined, give notice in writing to such assignee, that he intends to dispute the same. And by section 11. of the same act, in all suits in equity by or against assignees, the commission and proceedings are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, against all the *other parties in the suit, unless such parties, some or one of them, within ten days after rejoinder in the cause, give notice in writing to the assignees, that they intend to dispute the same. This statute applies only to those cases where the assignees are parties to the action. In an action between third persons, if the validity of a commission of bankruptcy comes incidentally into question, as a ground of defence, it must be regularly proved, as it would have been before the passing of the statute (1.) But the statute is not confined to cases where the assignees are named as such upon the record; and will apply, where the opposite party knows that they make out their title under the commission (2). When the proceedings are offered in evidence, it will be sufficient to prove that they came out of the proper custody, (namely, that of the solicitor to the commission,) or to prove the hand-writing of one of the commissioners, before whom they were taken (3). Such evidence is necessary, although there has (2) Per Ld. Mansfield, ib. (1) Doe dem. Mawson v. Liston, 4 Taunt. 741. (2) Simmonds v. Knight, 3 Campb. 251. (3) Collinson v. Hillear, 3 Campb. * 276 Depositions before jus tice of peace. not been any notice of an intention to dispute their validity. The words of the statute are, that "the commission and the proceedings of the commissioners are to be received as evidence of, &c., unless the other party give notice in writing, that he intends to dispute the same." The proceedings are therefore prima facie evidence; but not conclusive. The bankrupt, in an action against the assignees, may call witnesses to contradict the depositions respecting the petitioning creditor's debt, the trading, or the bankruptcy, although he has not given such a notice to the assignees (4). In an action of assumpsit for a creditor's share, under an order of commissioners of bankrupt for a dividend, the *proceedings of the commissioners are conclusive evidence of the debt, against the bankrupt's assignees (1): where the debt has been once liquidated before the commissioners, it cannot be litigated, except on an application to the great seal. But on an indictment for perjury, charged to have been committed by the defendant in passing his examination before the commissioners, strict evidence of the bankruptcy seems to be necessary, and the commission and proceedings under it will not be sufficient proof; for the authority of the commissioners in taking the examination is grounded, not in the commission, but in the bankruptcy (2). Justices of the peace are enabled and directed to take the depositions of witnesses in cases of felony, by the statutes 1 & 2 Ph. & M. c. 13. s. 4., and 2 & 3 Ph. & M. c. 10. (3). By the first of these statutes, "justices of the peace, when any person is brought before them for manslaughter or felony, being bailable by law, shall, before any bailment, take the examination of the prisoner, and the examination of them who bring him, of the fact and (4) Ellis v. Shirley, 3 Campb. 424. (1) Brown v. Bullen, 1 Doug. 407, Hal. P. C. 52. Tong's case, Kel. circumstances thereof, and the same, or as much as may be material to prove the felony, shall put in writing, before they make the bailment; which examination, with the bailment, the said justices shall certify at the next general gaol delivery to be holden within the limits of their commission." As this statute extended only to bailable felonies, and not to cases where the justice committed a prisoner on suspicion of manslaughter or felony, (in which cases, however, the examination of the prisoner, and of those who brought him before the magistrate, was more necessary, than where the prisoner was bailed,) it was therefore enacted by statute 2 & 3 Ph. & M. c. 10., "that the justice, before he shall *commit a prisoner, brought before him on suspicion of manslaughter or felony, shall take the examination of the prisoner, and the information of those who bring him, of the fact and circumstance thereof, and shall put the same, or as much thereof as shall be material to prove the felony, in writing, within two days after the said examination, and the same shall certify in such form and at such time as they ought to do, if such prisoner so committed had been bailed (a)." In the construction of these statutes, it seems now to be settled (1), that the depositions of a witness, taken upon oath (2), in the presence of a prisoner (3) who has been brought before the magistrate on a charge of felony, may be given in evidence on the trial of an indictment for the same felony, if it be proved on oath to the satisfaction of the court, that the informant is dead (4), or not able to (1) See Hawk. Pl. Cr. b. 2. c. 46. s. 15. (2) 1 Hal. P. C. 305. 586. 2 Hal. P. C. 52. 120. 284. Dalton. Just. c. 111. p. 369. Bull. N. P. 242. (3) R. v. Payne, 5 Mod. 163. cited per Ld. Kenyon, 3 T. R. 723. Woodcock's case, 2 Leach Cr. C. 566. R. v. Vipont, 2 Burr. 1163. (4) 4th res. in Ld. Morley's case, Kel. 55. Bromwich's case, 1 Lev. (a) Vide Laws N. Y. sess. 36. c. 104. s. 2. 2 R. L. 507. Dunl. New-York Just. 100, 101. * ве 27.7 |