Great as a crime of this nature (murder) must always appear to be, yet the inquiry into it must always proceed upon the rules of evidence.

The most common and ordinary fpecies of legal evidence, confifts in the depofitions of witneffes taken on oath, before the jury in the face of the court, in the prefence of the prifoner, and received under all the advantages which examination and cross-examination can give.

But beyond this kind of evidence there are also two other fpecies, which are admitted by law.

The one is the dying declaration of a perfon who has received a fatal blow. The other is the examination of a prifoner, and the depofitions of the witneffes who may be produced against him, taken officially before a juftice of peace, by virtue of a particular act of parliament, which authorizes magiftrates to take fuch examinations, and directs that they shall be returned to the court of gaol delivery.

This laft fpecies of depofition, if the defendant should die between the time of examination and the trial of the prifoner, may be fubftituted in the room of that viva voce teftimony which the deponent, if living, could alone have given, and is admitted of neceffity, as evidence of

the fact.

In the prefent cafe, a doubt has arifen with the court, to which doubt I entirely fubfcribe; whether the examination of the deceased, taken in writing at the poorhoufe by Mr. Read, the magiftrate, is an examination of the nature I have defcribed?

It was not taken as the ftatute directs, in a cafe where the prifoner was brought before him in cuftody; the prifoner therefore had no opportunity of contradicting the facts it contains. It was not in that part of Mr. Read's duty, by which he is, on hearing the witneffes, to bail or commit the prifoner; but it was a voluntary and extrajudicial act, performed at the request of the overfeers; and although it was a very proper and prudent act, yet being voluntary and under circumftances where the juftice was not authorized to administer an oath, it cannot be admitted before a jury as evidence; for no evi

dence

dence can be legal, unless it be given upon oath judicially taken. Leach's Cr. Caf. 2 Edit. 397. 3 Edit. 563. But the above depofition was read, as the dying declaration of the party who made it. Ante 37.

In the KING, v. DINGLER, Old-Bailey, September feff. 1791, before GOULD, J. the same point occurred. This was an indictment for murder. Mr. Addington, a juftice of the peace, faid he took the depofitions of the deceased upon oath, while fhe lay in a languishing state in the difpenfary, the prisoner not being present.

Garrow, counsel for the prifoner, objected to the reading of those examinations. He argued, that the law is precifely the fame, whether the examination taken be of the perfon whofe death is charged upon the prisoner, or of any other ordinary witnefs who has been examined to the tranfaction by a magiftrate, and who had died fubsequent to that examination. Taking the information offered in evidence, to be that of any other perfon befides the woman deceafed, and that fuch perfon died fince he was examined before the justice, could his examination be received in evidence? Certainly not.

Let us illuftrate, by fhewing the mifchiefs that must refult from receiving fuch an examination.

It may happen, where death is the confequence of a duel, or a rencontre, or in many other inftances, that there is but a fingle witness prefent. Now fuppofe that witnefs goes before a magiftrate, and depofes by whose hand the homicide was committed, and dies before the trial; fhall his information, though fworn to, and in writing, taken behind the back of the accused, and not containing all the facts and particulars the witness knew, and could depofe to if alive, but containing fo much as will justify the committal merely, be read in evidence on the trial? Certainly not.

Suppose this fame informant to live until the trial, though he should depofe on that trial, that the deceased affaulted the prisoner, that the prisoner was reluctant to return the affault, and offered terms of reconciliation, and that the prifoner was obliged to ufe a deadly weapon in his own defence; certainly, though on fuch evidence, by cross-examination, the party fo affailed should

be

be discharged of the indictment by the jury: yet by the fummary mode of proceeding against him now propofed, that is, by admitting the information, fworn before the magistrate as evidence, the witnefs being dead, the party accused would stand at this bar liable to a capital conviction, on the teftimony of a man, who meant no wrong indeed, but who had only difclofed fo much as was neceffary to his committal.

The deceased woman might have recovered after the examinations, and then the offence would have been different.

ROSE, recorder, was for receiving the evidence

Garrow, in continuance. There is an authority of confiderable weight exactly in point. It exprefsly fhews that this examination, under the circumstances attending it cannot be read, and he stated the King, v. Woodcock. Ante 257.

The answer to the objection, as it is understood at prefent is, that the ftatute has authorised the magistrate to take the examination of the prifoner, and the informations of witneffes; to return them to the court of gaol delivery, and if the witneffes fhould die before the trial of the defendant, then the information of the wit neffes, taken before the magiftrate judicially, fhould be read in evidence.

The confequence of the law is, that if an information. has been taken purfuant to the ftatutes of Philip and Mary, and is certified to the feffions of ayer and terminer, that then, if the occafion requires, and if the evidence given in the information, is let in by the death of the witnefs who fwore it, it may be read.

But the information offered in evidence has not been taken by the magistrate, pursuant to the direction of the ftatute-it has not been taken judicially. This appears,

First, by the language of the ftatute. Secondly, by the circumstances of the cafe. Vide the ftat. Ante

The language of the ftatute is this: that the juftice or juftices, have nothing to do but with a man coming before them to be committed.

1

This is an information, not taken in the courfe of a judicial proceeding. The prifoner was not prefentthe prifoner was not on his defence. The juftice might have held a judicial examination in the hospital, and ftrictly in pursuance of the ftatutes, and might have thus brought the prifoner before him, in which cafe this information might have been read.

The COURT, on confulting, refused to receive the evidence, relying on the King, v. Woodcock, as a determined cafe in point, Leach's Cr. Ca. 568.

M. S.

Ante 257.

The KING, v. the INHABITANTS of ERISWELL, Banc. Reg. 30 Geo. 3. appears relevant to the laff rule, in many particulars.

This was a pauper's cafe on the poor laws of England. The pauper had given examinations touching the place of his last refidence, No proceedings were had in confequence of this examination until the order of removal, which was the fubject of appeal, was applied for and made.

The pauper, from the time of the examination being taken, continued to refide in Icklingham, All Saints, for about five years, and without becoming chargeable to that parish, when he became infane, and continued in a ftate of infanity to the time of his removal to Eriswell parish..

On the part of the refpondents, this examination was offered in evidence, and objected to on the part of the appellants, but was received by the court of quarter sesfions, the hand writing of the juftices who took the fame being firft proved.

The queftion before the king's bench was, whether this evidence was admiffible.

Bower and Sayer argued in fupport of the admiffibility of the examination.

Partridge, Barnard, and Hay, against receiving it.
The COURT was divided on the question.

NOTE. This abridgement of the report is confined to the admiffibility of the examination.

GROSE, J. The question is, whether the information taken before the magiftrates is competent evidence of the pauper's fettlement in Erifwell, to warrant the juf

tices to make the warrant of removal, and the court of quarter feffions in confirming it?

To prove the facts of the appellant's cafe an examination of the pauper, taken before two magiftrates, was produced, and it appeared that the pauper, fince his examination, had become infane, and ftill continued in that state.

The objection to admitting this examination as evidence, is, that an agreement must be proved either by the parties, or the witneffes to it; and that the oath, either of the party or the witnefs, is not admissible in evidence, when it is given in the abfence of another who is to be affected by it.

To this it is anfwered first, that this examination may be read, because it is like a judgment upon which no execution has iffued. My answer is, that it is not like fuch a judgment, for in the firft place, before fuch a judgment can be obtained, the party to be affected by it muft have had an opportunity of being heard; he must have been ferved with a writ, or have had notice of the proceedings. And fecondly, the judgment must have been given by a court of competent jurifdiction; but in the prefent cafe the justices had not jurifdiction to administer the oath. By the 13 & 14 Car. 2. they are empowered only to remove; and unless they adminifter the oath for the purpose of removing it, it is no more than if a justice of another county adminiftered it. Here there was no removal, and they had no power, that appears but for that purpose.

Secondly, however, it is faid, that this examination is competent, because it is as good evidence as that of a perfon who had heard the pauper fay, that he had been hired for a year and served it, that fuch evidence would have been competent, and therefore this is fo.

As to it being as good evidence as that of a person who heard the pauper fay he had been hired, there is this material difference, that had the perfon been present, fuch perfon might have been cross-examined, as to all that paffed between him and the pauper, if any part of it were to be heard. But here we read only what the over

feers