DEPOSITION, in its extended sense, means the act of giving public testimony, but as applicable to English law the word is used to signify the testimony of a wit ness in a judicial proceeding reduced to writing. Informations upon oath and the evidence of witnesses before magistrates and coroners are reduced into writing in the very words used by the witnesses, or as near as possible thereto. Evidence in the Court of Chancery is taken in written answers to interrogatories, which are also in writing, either by commis sioners appointed for that purpose in the particular cause, if the witness resides at a greater distance from London than twenty miles, or if he resides nearer or is otherwise willing to appear, before the examiners of the Court of Chancery. These depositions are the evidence which is read at the hearing of the cause. The course of the Ecclesiastical Court is also by written interrogatories and answers. The Court of Chancery has power to grant a commission for the examination of wit nesses residing abroad ; and by the 1 Wm. IV. c. 22, which extends the provisions of the 13 Geo. III. c. 64, the courts of law at Westminster, in actions pending before them, have power to order the ex amination of witnesses residing in any of his Majesty's foreign dominions. By the 13 Geo. III. c. 63, § 40, in cases of indict ments in the King's Bench for misde meanors or offences committed in India, that court may award writs of mandamus to the judges. of the courts in India to examine witnesses concerning the matters charged in such indictments and offences, and the depositions so taken may be read at any trial for such misdemeanors or offences. Sections 41 and 42 provide for taking the depositions of witnesses on any information or indictment in the King's Bench against the judges of the Supreme Courts in India, and in proceedings in parliament for offences committed in that country. By section 44, when an action or suit in law or equity, the cause whereof shall arise in India, is commenced in any of the courts of Westminster, such court on motion may award a writ in the nature of a mandamus to the judges of the courts in India for the examination of witnesses, and such examination may be read at any trial or hearing between the parties in such action or suit. The 1 Wm. IV. c. 22, § 1, extends the power and provisions of the 13 Geo. III. c. 63, to all colonies and places under the king's dominion, and to all the judges of the same, and to all actions depending in the courts of law of Westminster. The fourth section of this act empowers the courts at West minster, and also the Court of Common Pleas of the County Palatine of Lancaster and of Durham, and the several judges thereof, in every action depending in such courts, upon the application of any of the parties to such action, to order the ex amination upon oath, upon interrogatories or otherwise, before the master or protho notary of such court, or person or persons 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 in places out of such jurisdiction by interrogatories or other wise. But (§ 10) no examination or de
position to be taken under this act shall be used as evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the jury that the examinant or deponent is beyond the jurisdiction of the court, or dead, or un able, from permanent sickness or other permanent disability, to attend the trial.
When a witness is above the age of 70, or very infirm, or about to go abroad, so that his testimony may be lost before the regular period for his examination arrives, the Court of Chancery will order him to be examined de bens ease, as it is termed ; that is, his examination is received for the present, and will be accepted as evidence when the proper time for taking the other evidence in the cause arrives, if the wit• ness cannot be then produced. Courts of law do not possess similar power without the consent of both parties, but in order to enforce consent they will put off the trial at the instance of a defendant, if the plaintiff will not consent ; and if the de fendant refuse, will not give him judgment in case of nonsuit.
The Court of Chancery will also, upon bill filed by a person in the actual and undisturbed possession of property, and who has therefore no means of making his title the subject of judicial investiga tion, but which nevertheless may be ma Wrially affected by the evidence of living witnesses, allow the witnesses to be ex amined in perpetuam rei memoriam, that is, to perpetuate testimony. This is done in order that if any of the witnesses should die before the title to the property is disputed, their evidence may be pre served ; otherwise a claimant might lie by until all the evidence against him was lost.
Depositions are not admitted as evi dence in courts of law, unless the witness is either dead, or from some cause beyond the control of the party seeking to read the deposition, cannot be produced, or against any other persons than the parties to the proceeding in which they were taken, or claimants under them, and who had the opportunity of cross-examining the witness. In cases, however, relating to a custom, prescription, or pedigree, where mere reputation would be good evidence, a deposition may be received as against a stranger.
Depositions taken in Chancery de bene ease before answer put in, unless the de fendant is in contempt for refusing to answer, are not admissible as evidence in a court of law, because until the defendant has answered he could not have an oppor tunity of cross-examining the witness ; but the Court of Chancery will some times direct such depositions to be read. Such order, however, while it concludes the parties, is not binding upon the court of law ; of course, however, if the depo sitions be not read and the decision should be contrary to justice, the Court of Chan cery would interfere as between the parties.