1866. Friday, Evidence. Admission of deposition under 1 Will. 4, c. 22, s. 10. Power of Court to review decision of Judge as to admissibility of deposition. Permanent sickness. DUKE OF BEAUFORT V. CRAWSHAY. Stat. 1 & 2 Will. 4, c. 22, s. 10, enacts that no examination or deposition to be taken by virtue of that Act shall be read in evidence at any trial, without consent, "unless it shall appear to the satisfaction of the Judge," that the examinant or deponent is unable, from permanent sickness or other permanent infirmity, to attend the trial. In order to admit the deposition of a witness, evidence was given by a person not a medical man, that he had seen him four days before, that he was upwards of eighty years of age, and that he was so ill as to be unable to move from his bed. An affidavit by a medical man was also tendered. The Judge expressed himself "satisfied" with the oral evidence, and admitted the deposition. Held: 1. That the Court in banc, in virtue of its general jurisdiction to supervise all proceedings before its Judges and officers, has power to review the decision of a Judge under this enactment. 2. It will not, however, interfere unless satisfied that substantial injustice has resulted from his decision. 3. "Permanent sickness" means, not necessarily an incurable sickness, but a sickness of a grave and serious character, and at least so permanent as to make it morally certain that there is no prospect of the attendance of the witness at those assizes or sittings; and, per Byles and Smith, JJ., the interpretation of the term may differ according to circumstances. 4. Semble, that the proof adduced to satisfy the Judge need not necessarily be legal evidence. HIS was an action to try the right to an ancient and THIS several fishery in the River Usk. At the trial before Blackburn, J., at the Spring Assizes for the county of Brecon, the Defendant's counsel proposed to put in evidence the deposition of a Mr. Hawkins, who by reason of illness had been examined under a commission. The Judge's order authorizing the examination was in these terms," On affidavit I order that he be examined at his residence, with liberty to cross examine, and such evidence may be used at the trial saving just exceptions." This evidence was objected to by the Plaintiff's counsel, who then called upon the Defendant to prove the inability of Hawkins to attend the trial. For this purpose the managing clerk of the Defendant's attorney was sworn, 1866. DUKE OF BEAUFORT v. who said that he, in company with a medical man, had A verdict was found for the Defendant. Grove obtained a rule for a new trial on the ground that the evidence of Hawkins had been improperly received. Manisty, Dowdeswell and H. Allen now showed cause.First, the Judge, who presides at the trial, is the sole judge as to whether a witness is too ill to attend. By stat. 1 Will. 4, c. 22, s. 10, the deposition is not to be read in evidence, unless it shall appear to the satisfaction of the Judge that the deponent is unable from permanent sickness or other permanent infirmity to attend the trial. 1866. June 7. DUKE OF BEAUFORT บ. CRAWSHAY. His decision cannot be reviewed on that point. In the case of Winsor v. The Queen (a), it was held that the decision of the Judge discharging a jury from giving a verdict was not subject to review. In Stanhope, App. v. Thorsby, Resp. (b), an order made by the local authority, appointed by order of the Privy Council, prohibited the removal of cattle, except fat ones with the licence of a justice, in which he was to state that he had been satisfied, by the evidence of an inspector or otherwise, that there had been no case of cattle plague within a certain distance; and it was held that the Sessions could not inquire into the evidence on which the justice granted a licence, there being no fraud by the applicant for it. [They also referred to Bartlett v. Smith (c).] Very loose evidence may be given to satisfy the Judge, which would not be admissible to go to a jury. The wording of sect. 10 of this statute is more like the wording of stat. 11 & 12 Vict. c. 42, s. 17, than that of any other, and in the case of Regina v. Stephenson (d), which is a decision on that section, it was held, that it is for the presiding Judge at the trial to decide as to the sufficiency of the evidence that a witness is too ill to travel, and that the Court will not interfere with the exercise of his discretion. Reasonable proof of the necessity of resorting to the depositions need only be given Starkie on Evidence, 4th ed. p. 412. In certain cases where a Judge has power under a statute to certify as to costs, it has been held that the Court will not review his decision: Barker v. Hollier (e); Cann v. Facey (f); Twigg v. Potts (g); Merrick v. Wakley (h); Bury v. Dunn (i). And where the Court or a Judge has power to direct that the Plaintiff shall recover his costs, as under the County Court Act, 15 & 16 Vict. c. 54, s. 4, the Court will not, on facts substantially the same as those before the Judge, exercise the power given to them: Hatch v. Lewis (a). Secondly. If the decision of the Judge can be reviewed, the evidence given here was sufficient; for, in addition to the parol evidence, there was an affidavit of a medical man, which was admissible to satisfy the Judge. In Knight v. Campbell, Guildford Summer Assizes, 1848, cited in Taylor on Evidence, 4th ed. p. 474, such an affidavit was admitted by Pollock, C. B., as sufficient proof of the permanent sickness of a deponent to let in his deposition. Grove, H. Giffard, and G. B. Hughes in support of the rule. First, it is in the power of the Court to review the decision of the Judge at Nisi Prius upon this question: Taylor on Evidence, pp. 35-36, 4th ed. The words of the statute go no farther than to show that the reception of evidence, in the case of the illness of a witness, is for the Judge. They put the matter on the same footing as other questions of a similar nature; as, for instance, the right of a judge to decide whether a document has come from the proper custody: Doe dem. Jacobs v. Phillips (b). Even where a mere matter of fact, proper for a judge to decide, has been disposed of by him, the Court are entitled to review the decision: Wright v. Doe dem. Tatham, per Parke, B. (c). [They also cited Boyle v. Wiseman (d); Doe dem. Jenkins v. Davies (e); Doe dem. Earl of Shrewsbury v. Keeling (f).] [Byles, J. Will a bill of exceptions lie here ?] No; and that is a stronger reason for the Court entertaining the question. All that a Judge does at Nisi Prius is reviewable, unless the review of the particular matter is expressly taken away by (a) 7 H. & N. 367. (b) 8 Q. B. 158. (c) 7 A. & E. 313, 356. VOL. I.-C. P. (d) 11 Ex 360. Y Y 1866. DUKE OF BEAUFORT v. CRAWSHAY. 1866. DUKE OF BEAUFORT V. statute, and, in such cases, clear peremptory language is always used. If it is conceded that the Courts in Banco have such a general surveillance, then the words "to the CRAWSHAY. Satisfaction of the Judge" cannot of themselves oust their jurisdiction. The object of those words must be to point out to the Judge that it is for him, and not for the jury, to decide the particular matter specified. Stephenson's case (a) is distinguishable, because there the appeal was to a Court instituted for the purpose of deciding upon points of law only, not of fact. Under the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 31, the Court is excluded from reviewing a Judge's decision upon a question relating to stamps; but such an express prohibition is in favour of the Plaintiff's contention that the general power of review exists. Secondly. Assuming that the Judge's discretion is reviewable, here was no "permanent" disability within the meaning of the Act. In one sense, chronic gout may be said to be permanent sickness; but the question is whether the illness in this particular instance was of so permanent a character as to render postponement of the trial practically useless. In cases under the 11 & 12 Vict. c. 42, s. 17, where the words are so ill as not to be able to travel," it has been held that, at least, the surgeon in attendance should be called: Reg. v. Riley (b). Here also the Judge should have had the oral evidence of the medical man. His affidavit was not evidence, and was improperly received. ERLE, C. J. I am of opinion that this rule should be discharged. It was a motion for a new trial on the ground of the improper reception of evidence. The evidence in question consisted of the deposition of a person of the name of Hawkins, and was received by the learned Judge at the trial on an oral statement, by which it appeared to his satisfaction that Hawkins was unable, from permanent (b) 3 Car. & Kir. 116. (a) L. & C. 165. |