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dence, though the person accused be not present when they are *taken, nor ever heard of them till the moment, when they are produced against him,) Lord Kenyon who differed from Mr. Justice Buller on the principal question said, (1) that the case, alluded to, was an exception founded on the statute of Philip and Mary. Besides, he added, the examination before the coroner is an inquest of office; it is a transaction of notoriety, to which every person has a right of access; and writs of ad quod damnum have been frequently set aside, for want of this notoriety in the execution of them by the sheriff. To this effect also Lord Hale lays it down, (2) that the coroner's inquest must hear evidence on oath as well for the party accused as for the king, if it be offered to them; because the proceeding is not so much an accusation on an indictment, as an inquisition of office to enquire truly, how the party came to his death; and for an omission in this respect an inquisition of felo de se has been quashed.

An inquisition of felo de se, taken before the coroner super visum corporis, is considered by Lord Coke (3) to be conclusive evidence of the fact against the executors or administrators of the deceased. But Lord Hale in his Pleas of the Crown (4) is of a different opinion, conceiving it unreasonable, that they should be concluded, and lose the goods of the deceased without an answer, by an inquisition, which may be taken by the coroner behind their backs. And it is now settled that such an inquisition may be removed into the King's Bench, and traversed by the executors and administrators of the deceased. (5)

If it be found by the coroner's inquisition, in case of the death of one who is not felo de se, that the person,

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(4) 1 Pl. Cr. 416. 1 East. P.

C.

(5) See 1 Saund. 362. note 1. by the Editor, who has there collected the cases on this subject. As to the duty of the coroner in taking an inquest, see stat. 1 H. 8. c. 8,

who committed the offence, fled for it, the authorities hold this finding to be conclusive and not traversable; yet, upon principle, it should seem as if the one case were as much traversable as the other. (1)

There are various other kinds of inquisition of office, which, if regularly taken, and under a competent authority, will be admitted by courts of law as evidence of the facts there found. Some inquisitions are taken on an enquiry made by the sheriff, or coroner, or escheator, by virtue of their office, or under a writ directed to them for that purpose: others are taken by commissioners, especially appointed to examine witnesses on oath, and enquire into the several matters specified. These inquisitions are evidence of the facts there found, even against third persons. An inquisition of escheat, for instance, is evidence, in any suit and between any parties, that the person, who was the subject of enquiry, died without issue, as the commissioners have stated. kind of inquisition is presented on the oath of a jury, and is a formal and solemn finding of the several facts. The escheators are bound to meet in a public and open place; and every person is to be allowed to give evidence openly in their presence. (2)

This

An inquisition of lunacy is evidence on the trial of an indictment, to shew that the prisoner was insane, when he committed the offence. (3) Such inquisitions are evidence even against third persons, who were strangers to the proceeding. Thus, in a case, where an inquisition of lunacy was offered as evidence to affect the rights of third persons, and objected against as res inter alios acta, Lord Hardwicke overruled the objection, and said that inquisitions of lunacy, and likewise other inquisitions, as post mortem, &c., are always admitted to be read, but

(1) See n. (1) and Hawk, b. 2. a 9. 8. 54.

(2) St. 1 H. 8. c. 8.

(3) R. v Bowler, O. B. June, 1812, before Le Blanc J. and the present Ch. J. of the Common Pleas, MS.

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not conclusive. (1) So an inquisition taken by virtue of a commission which issued in the reign of Queen Elizabeth, under the seal of the court of Exchequer, to commissioners to enquire, whether a prior was seized of certain lands as parcel of a manor, or whether the crown was seized of them after the dissolution of the priory, was adjudged to be good evidence of those facts. (2) And an inquisition, taken under an order of the House of Commons, is evidence respecting the fees of certain offices. (3)

*Inquisitions, which are extrajudicial or irregularly taken, will not be received in evidence. Thus an inquisition made by a sheriff's jury, for the purpose of ascertaining, who was entitled to the property of goods taken under an execution, is not admissible evidence even against the sheriff, in an action of trover brought by the party, in whose favour the inquisition was found. (4) This evidence was received at the trial of the cause by Mr. Justice Buller, who admitted it, but held it not to be conclusive; and, a verdict having been found for the defendants, a motion was afterwards made for a new trial, on the ground, that the inquisition was conclusive evidence in favour of the plaintiff, as against the person who contested the property with the plaintiff, and who was present at the time of taking the inquisition, But the court refused the application. Ch. J. Eyre said, he doubted whether a sheriff can, strictly speaking, hold any inquisition as to property, except under a writ de proprietate probanda in replevin. And Mr. Justice Buller said, he thought he ought not to have admitted the evidence at the trial, as the inquisition was [902] not under the king's writ, but merely a proceeding by the sheriff on his own authority.

(1) Sergeson v Sealey, 2 Atk. 412. Faulder v Silk and another, 3 Campb. 126. See Jones v White, ante, p 257. (2) Tooker ▾ Duke of Beaufort, 1 Burr. 146.

(3) Green v Hewett, Peake N. P. C. 184.

(4) Latkow v Eamer and Burnett, Sheriff of Middlesex, 2 H. Blac. 437. Glossop v Poole, 3 Maule & Selw. 175.

In order to make an inquisition evidence, the commission, under which it was taken, ought regularly to be proved, or shewn to be lost. But in cases of more general concern, such as the minister's return to the commission in the reign of Hen. 8. for enquiring into the value of livings, a copy of the whole record need not be taken, and the commission is of such public notoriety as not to require any proof.(1)

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The general rule, respecting the admissibility of de- Examinations. positions after the death of the witness, is, that they are not evidence, unless they have been taken judicially, and unless *the party, whose interests would be affected by them, had an opportunity of being present and crossexamining the deponent. It is therefore now clearly established, that the ex parte examination of a pauper concerning his settlement, taken on oath before magistrates, is not admissible, upon a question of settlement, as evidence against the appellant parish.(2) The objection against their admissibility is, not that the magistrates have no power to administer an oath, (for it seems to be admitted, that the statute 13 & 14 C. 2 c. 12 s. 1., which first gave them a power to remove, gave them also ineidentally a power to examine the pauper preparatory to a removal,) (3) but that the examination is ex parte, obtained at the instance of overseers, whose parish would be benefitted by the removal, and behind the backs of the appellants, who received no notice of the proceeding, and had not the benefit of a cross-examination.(4)

There are some exceptions to the general rule, besides those already mentioned, founded on the special provisions of acts of parliament. Thus, the examination of a

(1) Bull. N. P. 228. Hardcastle v Sclater, 2 Gwill. 787.

(2) R. v Nuneham Courtenay, 1 East, 373. R. v Ferry Frystone, 2 East, 54. R, v. Abergwilly, ib. 63.

(3) By Lord Kenyon, R. v Eriswell, 3 T. R. 721. See Lambard Just. b. 1. c. 21. p. 209.

(4) By Lord Kenyon, R.'v Eriswell, 3 T. R. 725.

single woman before a magistrate, under the statute 6 G. 2 c. 31. (which enacts, that, in case any single woman shall, in an examination to be taken in writing upon oath before any justice, &c. charge any person with having gotten her with child, it may be lawful for the justice to issue his warrant for the immediate apprehension of such person, &c. (a) will be evidence after the woman's death against the reputed father, on his appear. ance at the sessions to abide the order of the court according to his recognizance. This examination, taken by the directions of the statute in a judicial proceeding, will be evidence like depositions under the statute of * 285 Philip and Mary;(1) although the proceeding *before the magistrate is entirely ex parte, and though the party accused is not present at the woman's examination.

The examination of a soldier before a magistrate, touching his settlement, is made evidence on an appeal, by the mutiny act, (2) which enables "two or more justices for the county, where any soldier shall be quartered, in case he has either wife or child, to cause him to be summoned before them in the place, where he is quartered, in order to make oath of the place of his last legal settlement. And such justices are required to give an attested copy of such affidavit to the person making the same, to be by him delivered to his commanding officer, in order to be produced when required, which attested copy shall be at any time admitted in evidence as to such last legal settlement at any general quarter sessions of the peace." As an attested copy is thus made evidence, it has been determined, on a reasonable and obvious construction of the act, that the original affidavit, which is a higher kind of evidence, ought to be admitted as well as the copy. (3) The statute however is to be construed strictly; and therefore no other attested

(1) R. v Ravenstone, 5 T. R. 373.
(2) 55 G. 3. c. 108. s. 70.

(3) Rv Warley, 6 T. R. 534. See Burdon v Rickets, 2 Campb. 121.

(a) Vide Laws of New-York, sess. 36. c. 12. s. 2. 1R. L. 306.

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