165; 31 L. J., M. C. 147; and see R. v. Goodfellow, 14 Cox, C. C. 326. It is in such case a question for the presiding judge in his discretion to determine whether the witness is so ill as not to be able to travel. R. v. Wellings, 3 Q. B. D. 426; 47 L. J., M. C. 100. Where a witness came to the assizes, but returned home by the advice of a medical man, who deposed that it would have been dangerous for the witness to remain, Parke, B., held that the witness was "unable to travel" within the meaning of this section, and allowed his depositions to be read. R. v. Wicker, 18 Jur. 252. A superintendent of police having seen a policeman in bed two days before the trial stated that he appeared ill, and that when he tried to get out of bed he could not stand, but he was unable to state what was the matter with him, except that he believed it to be rheumatics, and no medical man was called to be examined as to his condition. Held, that the deposition could not be admitted. Per Piggott, B., R. v. Williams, 4 F. & F. 515. The witness, Mary Lee, whose deposition it was proposed to read, lived not far from the court. Her medical attendant was called, and said, "I know Mary Lee; she is very nervous, and seventy-four years of age. I think she would faint at the idea of coming into court, but I think she could go to London to see a doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it might be dangerous to her to be examined at all. I think she *71] *could distinguish between the court going to her house and she herself coming to the court." It was held by the Court of Crown Cases Reserved, that the deposition was not admissible, and Lord Coleridge, C. J., in giving judgment, said, "It would be dangerous to admit any such latitude of construction as would bring this case within the words of the statute." R. v. Farrell, L. R. 2 C. C. R. 116; 43 L. J., M. C. 94. See also R. v. Welton, 9 Cox, 281; R. v. Bull, 12 Cox, C. C. 31.

It is a question for the judge at the trial to determine whether the proof of a witness being so ill as not to be able to travel is sufficient ; and the Court of Criminal Appeal will not interfere with the exercise of his discretion. R. v. Stephenson, 1 L. & C. 165; 31 L. J., M. C. 147. In R. v. Farrell, supra, the case was reserved for the Court by Coleridge, C. J., and not at the request of counsel. But see now R. v. Wellings, ante, p. 70.

There is nothing in the words of the statute which renders it necessary that the inability of the witness to attend at the trial should be permanent; it may, therefore, be implied that it need not be so. Before the statute, it seems to have been doubted whether a merely temporary illness was a sufficient ground for admitting the deposition. 2 Stark. Ev. 383, 3rd. ed.; R. v. Savage, 5 C. & P. 143, 24 E. C. L. And there can be no doubt that a judge would now exercise his discretion and decide whether, in the interests of justice, it were better to read the deposition, or to adjourn the trial in order to obtain the oral testimony of the witness. See R. v. Tait, 2 F. & F. 553, where Crompton, J., postponed the trial to the next assizes.

Condition of absent witness-how proved. Of course, a surgeon's certificate, however authentic in itself, is no legal evidence of the state of the witness. His condition must be proved on oath to the satisfaction of the judge who tries the case, whose province it is to decide this preliminary question of fact. It appears to be the established practice that, in the case of a witness being alleged to be ill, the surgeon, if he be attended by one, must be called to prove his condition. In R. v. Riley, 3 C. & K. 316, Patteson, J., laid it down, that where a witness is ill, his deposition would not be received in evidence under this statute, unless the surgeon attended at the trial to prove that the witness was unable to travel. And he also stated that where a witness was permanently disabled, and was not attended by a surgeon, other evidence that the witness was unable to travel was receivable. In that case, it appears that the witness was attended by a surgeon, who was not called; but another person proved that he saw the witness in bed on the 18th March, when he seemed ill; the commission-day was the 21st, and the trial took place on the 23rd; ; it was held that the proof was insufficient to render the deposition admissible. In R. v. Philips, 1 F. & F. 105, the attorney for the prosecution was put into the box to prove that the witness was unable to attend, and stated that the witness's residence was twenty-three miles off, and that he had seen him that morning in bed with his head shaved. Erle, J., said, "The evidence, no doubt, is as strong as it can be, short of that of a medical man, but the case may be easily imagined of a person extremely unwilling to appear as a witness, and so well feigning himself to be ill as to deceive any one but a medical man;" and the evidence was rejected.'

Depositions, to be admissible, must be taken in proper form. To render a deposition of any kind admissible in evidence in any case, it must be proved to have been formally taken. In- [*72 dependently of the statute which regulates the taking of depositions before justices of the peace, 11 & 12 Vict. c. 42, s. 17, supra, they must appear to have been taken on oath, and that the party against whom they are tendered had an opportunity of examining the witnesses who made them. Attorney-General v. Davison, McClel, & Y. 169; R. v. Woodcock, 1 Lea. 500; R. v. Dingler, 2 Lea. 561. Now, not only these, but all the other requirements of the statute must be proved, by the party tendering the evidence, to have been complied with; though the usual presumptions in favor of the proceedings having been regular, will be made, if the depositions are in form correct.

Mode of taking depositions-caption. The title or caption of the deposition need state no more than that it is the deposition of the witness, and also the particular charge before the magistrate to which the deposition had reference. Where, therefore, upon the trial of a pris1State v. Granville, 34 La. An. 1088.

The affidavit of the relatrix instituting the prosecution cannot be put in evidence at the trial. Broyles v. State, 64 Ind. 460.

oner for unlawfully obtaining a promissory note by false pretences, the deposition of the prosecutrix proved to have been regularly taken before the committing magistrate, stated, by way of caption, that it had been taken "in the presence and hearing of Harriet Langridge, (the prisoner), late of, etc., wife of John Langridge, of the same place, laborer, who is now charged before me this day for obtaining money and other valuable security for money from M. R. (the prosecutrix), then and there being the money of, etc.;" it was held, that such caption charged an offence against the prisoner with sufficient distinctness, and that the deposition had been properly received in evidence at the trial, after due proof of the absence of the prosecutrix from illness. R. v. Langridge, 1 Den. C. C. R. 448; 18 L. J., M. C. 198. One caption at the head of the body of the depositions taken in the case is sufficient, and the particular deposition sought to be given in evidence need not have a separate caption. R. v. Johnson, 2 C. & K. 355, 61 E. C. L. So where the depositions had one caption, which mentioned the names of all the witnesses, and at the end one jurat, which also contained the names of all the witnesses, and to which was the signature of the magistrate, and each witness signed his own deposition, Williams, J., was of opinion that they were correctly taken. R. v. Young, 3 C. & K. 106. A deposition without a caption is inadmissible, though otherwise formally taken. R. v. Newton, 1 F. & F. 641

Mode of taking depositions-opportunity of cross-examination. The prisoner must have an opportunity of cross-examining the witness. Where the prisoner was not present during the examination, until a certain part of the deposition, marked with a cross, at which period he was introduced, and heard the remaining part of the examination, and when it was concluded, the whole was read over to him; Chambre, J., refused to admit that part of the depositions previous to the mark, which had not been heard by the prisoner. R. v. Forbes, Holt, 599 (n). But a different rule was acted upon in the following case. The prisoner was indicted for murder, and the deposition of the deceased was offered in evidence. It appeared that a charge of assault having been preferred against the prisoner, the deposition of the deceased had been taken on that charge. The prisoner was not present when the examination commenced, but was brought *into the room before the three last lines were taken down. The *73] oath was again administered to the deceased in the prisoner's presence, and the whole of what had been written down was read over to him. The deceased was then asked, in the presence of the prisoner, whether what had been written was true, and he said it was perfectly correct. The magistrate then, in the presence of the prisoner, proceeded to examine the deceased further, and the three last lines were added to the deposition. The prisoner was asked whether he chose to put any questions to the deceased, but did not do so. An objection was taken that the prisoner had not been present. The deposition, however, was admitted, and by a majority of the judges held rightly

admitted. R. v. Smith, Russ. & Ry. 339; 2 Stark. N. P. 208, 3 E. C. L. In R. v. Beeston, Dears. C. C. 405, Alderson, B., stated that he still thought he was right in the objection which, as counsel for the prisoner, he took to the admissibility of the deposition in R. v. Smith, upon the ground that "the prisoner had not a sufficient opportunity of cross-examination; that he had no opportunity of hearing the witness give his answer and seeing his manner of answering, and that so much of the evidence as had been taken in the prisoner's absence was inadmissible." And Platt, B., in R. v. Johnson, 2 C. & K. 394, 61 E. C. L., reprobated the practice of taking depositions in the absence of the prisoner, and then supplying the omission by reading them over to the prisoner, and asking him if he would like to put any questions to the witnesses. The law presumes that if the prisoner was present he had a full opportunity of cross-examination, but this presumption may be rebutted. R. v. Peacock, 12 Cox, C. C. 21.1

Mode of taking depositions-must be in presence of a magistrate. A person whilst before a magistrate had a full opportunity of cross-examining, and a note of the heads of the examination was taken by a clerk. Afterwards another clerk examined the witness from the notes so taken, and, in the absence of the magistrate, wrote down the answers and obtained the signatures of the witnesses. The prisoner's attorney was not there, though he might have been if he had liked, and the prisoner who was present was not asked if he would then crossexamine. The prisoner and witnesses were then taken before the magistrate, and the evidence taken before the clerk was read over to them. The prisoner was not then asked if he would cross-examine. The magistrate then cautioned the prisoner, who then signed his own statement, and the magistrate signed the depositions. It was held by the Court for Crown Cases Reserved that the depositions were inadmissible, because they were not taken in accordance with the 11 & 12 Vict. c. 42, s. 17, but the argument of counsel was mainly directed to the point that the depositions were not taken in the presence of a magistrate. R. v. Watts, 9 Cox, C. C. R. 395; 33 L. J., M. C. 63; L. & C. 339.

Mode of taking depositions—should be fully taken and returned. By the 11 & 12 Vict. c. 42, s. 17, it is expressly enacted that the justice "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 affirmation of those who shall know the facts and circumstances of the cases, and shall put the same into writing, and such depositions shall be read over 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.' The observa- [*74

tions of Parke, B., in R. v. Thomas, 7 C. & P. 718, 32 E. C. L., are still pertinent. He said, "Magistrates are required by law to put down the evidence of witnesses, or so much thereof as shall be material. 1 Hurley v. State, 29 Ark. 17.

They have hitherto in many cases confined themselves to what they deemed material, but in future it will be desirable that they should be extremely careful in preparing depositions, and should make a full statement of all the witnesses say upon the matter in question, as the experience we have already had of the operation of the Prisoner's Counsel Bill has shown us how much time is occupied in endeavoring to establish contradictions between the testimony of the witnesses and their depositions, in the omission of minute circumstances in their statements made before the magistrates, as well as in other particulars." Where there was an omission, in the depositions, of a conversation which was sworn to at the trial, and which the witness said he had told to the magistrate, Lord Denman, C. J., thought the complaint of the prisoner's counsel, that such omission was unfair to the prisoner, was well founded, and that the magistrate ought to have returned all that took place before him with respect to the charge, as the object of the legislature in granting prisoners the use of the depositions was, to enable them to know what they have to answer on their trial. R. v. Grady, 7 C. & P. 650, 32 E. C. L. The same learned judge expressed an opinion that although in a case of felony the committing magistrate need not bind over all the witnesses who have been examined before him in support of the charge, but only those whose evidence is material to the charge, it was very desirable that all which had been given in evidence before the magistrate should be transmitted to the judge. R. v. Smith, 2 C. & K. 207, 61 E. C. L. So also, in cases where the prisoner calls witnesses before the magistrate in answer to the charge, they should be heard, and their evidence taken down; and, if the prisoner be committed for trial, the depositions of his witnesses should be transmitted to the judge, together with the depositions in support of the charge. Anon., 2 C. & K. 854, 61 E. C. L. And see now the 30 & 31 Vict. c. 35, s. 3, in Appendix of Statutes. If the prisoner or his counsel cross-examine the witnesses when before the magistrate, the answers of the witnesses to the cross-examination ought to be taken down by the magistrate and returned to the judge. R. v. Potter, 7 C. & P. 650, 32 E. C. L. Nothing should be returned as a deposition against the prisoner, unless the prisoner had an opportunity of cross-examining the person making the deposition. Per Lord Denman, C. J., R. v. Arnold, 8 C. & P. 621, 34 E. C. L. But where a witness has undergone several examinations, it seems proper to return them all, although those only would be admissible in evidence against the prisoner which were taken in his presence. Thus, where a witness for the prosecution had made three statements at three different examinations, all of which were taken down by the magistrate, but the only deposition returned was the last taken after the prisoner was apprehended, and on the day he was committed; Alderson, B., said that every one of the depositions ought to have been returned, as it is of the last importance that the judge should have every deposition that has been made, that he may see whether or not the witnesses have at different times varied their statements, and if they have, to what extent they have done so. Magistrates ought to return to the