Material witness absent.

Motion to put off trial.

By plaintiff.

cise a discretion in either refusing a rule or order altogether, or granting it on terms adapted to prevent the abuse of the statute to purposes of oppression or delay. In general the examination is made by interrogatories previously prepared, but it may be directed that the witnesses shall be examined and cross-examined vivá voce, or partly vivá voce and partly on interrogatories. (1) If taken vivá voce, the answers are reduced into writing, and returned to the Court from which the process

issued.

If the defendant is unable to proceed to trial, on account of the absence of a material witness, he may move the Court in term-time, or apply to a Judge in vacation, on an affidavit of the facts, to put off the trial till the next term; or in the Common Pleas, if necessary, to a more distant period. (2) An application to put off a trial beyond the existing sittings, or from sittings to sittings, is not allowed on the part of the plaintiff; for he has the power at any time of withdrawing the record, if he is not prepared to try the cause. But where, from the sudden indisposition of a witness, who may be able to attend in the course of a day or two, or for any other temporary reason, the plaintiff is prevented from trying his cause in its order in the paper, yet has ground to believe that he shall be able to try before the sittings are over, it would be too much to make him, in such a case, withdraw his record; and a Judge at nisi prius will therefore make an order for the trial to stand over, till the witness is likely to attend. (3) It is a rule in the Court of Common Pleas, that the trial of a cause can never be put off on the consent of the parties and counsel, at the sittings at nisi prius, but the plaintiff must either proceed to try or withdraw his record. (4)

Before the Court will consent to put off the trial on account of the absence of a material witness, it requires to be satisfied

(1) Pole v. Rogers, 3 Bing. N.C. 780.

(2) Pr. Reg. 368. Tidd. Pr. 831. See form of affidavit in Tidd. App.

(3) Ansley v. Birch, 3 Campb. N. P. C. 333, by Lord Ellenborough.

(4) 2 Taunt. 221.

that injustice would be done by refusing the application, and that the party, who makes the application, has not conducted himself unfairly, nor been the cause of any improper delay. (1) The rule will not be granted to the defendant, after he has By defendant. pleaded a sham plea, by which a trial has been lost, unless he consent to pay the money into Court; (2) nor, where the testimony of the absent witness is intended to set up an odious defence, (as, that the plaintiff is slave to the defendant, and therefore cannot recover in the action, or that he is an alien enemy, &c.); (3) nor will it grant the rule for the purpose of giving the defendant an opportunity, which he has once lost by his own neglect, of applying to a Court of Equity for a commission. (4)

When a motion is about to be made to a Judge at nisi prius, Affidavit. for putting off the trial of a cause on account of the absence of a witness, notice should first be given to the plaintiff's attorney, with a copy of the intended affidavit. This affidavit ought regularly to be made by the defendant himself; but if he is abroad or out of the way, it may be made by his attorney or a third person. (5) The affidavit generally states, that the person absent is a material witness, without whose testimony the defendant cannot safely proceed to trial; that he has endeavoured without effect to get him subpoenaed; but that he is in hopes of procuring his future attendance. (6)

(1) Saunders v. Pitman, 1 Bos. & Pull. 33.

(2) Tidd. Pr. 831.

(3) Robinson v. Smyth, 1 Bos. & Pull. 454.

(4) Calliard v. Vaughan, 1 Bos. & Pull. 212.

(5) Peake, N. P. C. 97.

(6) See form of affidavit, Tidd. Pr. Appx. 312.

FFF

Records.

Copy of indictments.

Order for.

In case of felony.

SECTION II.

Of the Inspection of Public Writings.

The judicial records of the king's courts are safely kept for the public convenience, that any subject may have access to them for his necessary use and benefit;-which was the ancient law of England, and is so declared by an act of parliament in the forty-sixth year of Edward III. (1)

Some restriction of the general right of inspecting records has been thought necessary in the case of an acquittal on a prosecution for felony; in which case, if the trial is at the Old Bailey, a copy of the indictment cannot regularly be obtained without an order from the Court; and it is a common practice, on the circuits, to apply to the Court for a copy at the time of the trial. This practice appears to have been first adopted at the Old Bailey, in pursuance of an order made by some of the Judges, for the regulation of those sessions, in the twenty-sixth year of Charles II. (2) It was then ordered, "that no copies of any indictment for felony be given without special order, upon motion made in open court, at the general gaol delivery for the late frequency of actions against prosecutors which cannot be without copies of the indictment, deterreth people from prosecuting for the king upon just occasions." And Lord Holt has laid it down as a general rule of law, that if a person be indicted for felony and acquitted, and means to bring an action (without sufficient cause), the Judge

(1) 3 Inst. 71. Pref. to 3d Rep. p. 3, 4. See Sir R. Grahame's Trial, 12 Howell's St. Tr. 659.

(2) Directions for Justices at the Old Bayley, prefixed to Kelyng's Rep. p. 3, order 7. See Brangam's case, 1 Leach, Cr. C. 32. In this case, Willes, C. J., is reported to have said, that, by the laws of the

realm, every prisoner, upon his acquittal, has an undoubted right and title to a copy of the record, for any use which he may think fit to make of it; and that, after a demand, the proper officer might be punished for refusing to make out

a copy.

will not permit him to have a copy of the record, and he cannot have a copy without leave. (1) In the case of Vandercomb and Abbott, (2) the prisoners after their acquittal applied for copies of the several indictments, for the purpose of assisting them in their plea of autrefois acquit: the Court, however, refused to grant them copies, but ordered the officer to read over the indictments slowly and distinctly, which was accordingly done.

The rule of the Judges states, that an action against a prosecutor cannot be maintained without a copy of the indictment, and that a copy is not to be given without an order from the Court; but it is not to be inferred from this, that an order is essentially necessary for the introduction of a copy in evidence, if a copy were offered to be produced without an order, that it could on that account be properly rejected. The admissibility of such evidence has been determined in the case of Legatt v. Tollervey. (3)

or,

The rule, which has been before mentioned, is confined to In case of cases of felony. In prosecutions for misdemeanors, the defend- misdemeanor. ant is entitled to a copy of the record, as a matter of right, without a previous application to the Court. (4) So, in the case of a conviction by a magistrate, the defendant is entitled to a copy of the conviction, in order to defend himself against an action for the same offence; and if it should be refused, and the defendant in consequence sue out a writ of certiorari, merely for the purpose of procuring a copy and making his defence, the magistrate will be compelled to pay his own costs of returning the conviction. (5) The conviction may be drawn up at any time, before the return to the certiorari or to the sessions, though after a commitment, (6) or after the levying of the penalty. (7) And the conviction returned to the sessions, or to

(1) In the case of Dr. Groenvelt v. Dr. Burwell and others, 1 Lord Raym. 253. But see Browne v. Cumming, 10 B. & C. 70, in which this seems to have been considered a doubtful point.

(2) 2 Leach, Cr. C. 821. (3) 14 East, 302.

(4) Morrison v. Kelly, 1 Black. Rep. 385. Evans v. Philips, reported from MS. in Selw. Ni. Pri. 952.

(5) Rex v. Midlam, 3 Burr. 1721. (6) Massey v. Johnson, 12 East, 67, 82. 16 East, 20.

(7) Rex v. Barker, 1 East, 186.

Inspection of depositions.

Prisoner's counsel act.

the Court of King's Bench, is the only one, of which those courts take judicial notice. (1)

Formerly a defendant on a criminal charge was not entitled to an inspection of the grounds, upon which the prosecution had been instituted. In some species of treason, indeed, the prisoner was entitled to a copy of the indictment, a privilege not allowed by the common law, but conferred by act of par liament; but neither in cases of treason nor of felony had he any right to a copy of the depositions of witnesses, who were to appear against him.

But by the statute (2) to enable prisoners to make a full defence by counsel, or attorney, it is enacted, that all persons held to bail or committed to prison for any offence against the law, shall be entitled to copies of the examinations of the witnesses respectively upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding three half-pence for each folio of ninety words: provided always that if such demand shall not be made before the day appointed for the commencement of the assize or sessions, at which the trial of the person, on whose behalf such demand shall be made, is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person presiding at such trial shall be of opinion, that such copy may be made and delivered without delay or inconve nience to such trial; but it shall nevertheless be competent for such judge, or other person presiding at such trial, if he should think fit to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged. And by another section (3) of the same act it is enacted, that all persons under trial are entitled at the time of their trial to inspect without fee or reward all depositions, (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had.