1861. Ex Parte tracted, and has not resided, or been within this Province, for six months next preceding the application. In the brief style of the Revised Statutes, the provision, with respect to absent debtors, is contained in a very few lines, at page 315, § 3: The estate of any person indebted as aforesaid, departing from or residing out of "the Province after the debt was contracted, and after an “absence of six months next preceding the application, "may be proceeded against by the creditor, or his attor"ney, in like manner as nearly as possible as absconding "or concealed debtors, except that such departing or "absence may be proved by one witness." 66 Comparing the language of the section 6 of 13 Vict. c. 54 with that of section 3 in the Revised Statutes, the description of the class of persons would seem to be identical. In the first, it is the estate of any person who may depart from, "or who may reside out of." In the second, it is "the "estate of any person departing from, or residing out of." Under the 13 Vict. it was necessary that the debtor should remain out of the Province, with the object of preventing his creditors getting hold of his property; and proof was required that the debtor departed from, or REMAINED out of the Province, after the debt was contracted, and had not resided or been within the Province, for six months next preceding the application. By the Revised Statutes, the departing or absence must be for six months next preceding the application. In the one, there must be a remaining out of, and not being within, for six months; in the other, there must have been an absence of six months. The ideas conveyed by the language of these two Acts, seem to be precisely the same. If the former be held not to apply to persons who had never resided in the Province, we do not see how the latter can do so. There are two classes of persons included in section 3: first, those who, being in the Province when the debt was contracted, have subsequently departed therefrom; secondly, those who were residing out of the Province, at the time the debt was contracted, and have continued absent therefrom, for six months next preceding the application. We do not say that Ex Parte that this description might not possibly include those who 1861. had always resided out of the Province; but, in the ordinary use of language, the expression "remaining out of" remaining out of" KETTLE. would hardly be used in reference to those who had never been in the Province; but rather to those who had formerly been residing in the Province, and had gone away. Still less would those who had never been in the Province, be described as being absent from it. When a man is said to be absent from a place, it is generally implied that he has formerly been present there. The word "absence" is said in the Imperial Dictionary, to suppose primarily a prior presence. Admitting, however, that the expression would bear both constructions, we may fairly look to other parts of the same Act, and to other Acts in the same matter, to assist in discovering which construction was intended by the Legislature. Now, the Act of 28 Geo. III, c. 2, which was in force for more than sixty years, was most clearly inapplicable to persons who had never resided in the Province. Had it been the intention of the Legislature, in the Consolidation Act of 13 Vict. c. 54, to make a new class of persons subject to the somewhat summary provisions of this law, it may fairly be presumed they would have done so, in plain and unambiguous language, and still more so in the Revised Statutes, after a decision had been given that the 13 Vict. did not apply to persons who had never been resident in the Province. Again, if we look to the provisions of the 13 Vict. c. 54, and the Revised Statutes, for enabling the debtor to get rid of the summary process, by which the whole of his property in the Province has been taken from him, we find the only means to which he can have recourse, is, by a petition on oath, to the Judge who issued the warrant, before the appointment of trustees, for a supersedeas. By 13 Vict. c. 54, § 16, he could only have obtained a hearing in this matter, by proving to the Court that he is resident within this Province; and the form of petition for supersedeas, given in the Revised Statutes, commences by the statement, that your petitioner is resident within this Province." It is obvious that this averment could not be 66 made 1861. Ex Parte made by one who never was such resident. It is not to be supposed that the Legislature ever intended to make the arbitrary provisions of the law, applicable to a class of persons who, by the conditions imposed by that law, would be entirely debarred from the means of relief provided for another class, certainly not more deserving of consideration. The man to whom fraud is imputed, has the means of clearing himself and his property; while he who is not charged with fraud, but merely with absence, is without recourse, and must either pay a claim which may or may not be just, or have the whole of his property in the Province sacrificed. Inasmuch, therefore, as it is clear that by the original Act, 28 Geo. III, c. 2, debtors who had never been resident in the Province, were not included; as the 13 Vict. c. 54, has been held, and we think rightly held, not to include them; and as it appears to us, the language of the Revised Statutes does not go farther, if so far, as the 13 Vict. c. 54; we are of opinion that the warrant in this case was improvidently issued. Mandamus refused. Where a cause A SAYRE, Executor, &c., against STEEVES. RULE nisi was granted in Michaelmas term last, to set aside the verdict in this cause, on the ground of defendant, that it was tried out of its order on the docket, in the on statement of plaintiff's absence of the defendant and his attorney. The affidavit counsel that it was un defended, the Court set of the defendant stated that he had a good defence on the merits, and intended to defend the suit. The cause was aside the ver- tried on the statement of the plaintiff's counsel that it was dict on affi davit of the defendant, undefended. that he had a A. J. Smith now shewed cause, and produced an affi good defence on the merits, davit of the plaintiff's attorney, stating that the action was and intended to defend the brought on a promissory note given by the defendant to suit. the the testator; that he had a conversation with the defendant's attorney at the circuit, in which he stated that he thought of leaving the Court, whereupon the deponent told him that he had better not do so, if he wished to defend the suit, as the plaintiff intended to try it. The Court (without hearing the counsel for the defendants) said, that the rule must be made absolute, as the cause was tried out of its order at the express risk of the plaintiff; and the defendant had sworn that he had a good defence, and intended to defend the action. Rule absolute without costs. 1861. SAYRE against STEEVES. THE 66 THE QUEEN against MILLAR. of a deceased under which a committed, is admissible "the trial, Rev. Stat. c. 156, § 7, HE defendant was convicted of manslaughter, before The statement Wilmot, J., at the last Northumberland circuit, on witness taken on oath by a an indictment charging him with feloniously killing Stew- magistrate, art Johnston. The written examination of the deceased, circumstances detailing the taken before John T. Williston, Esquire, a Justice of the felony was Peace, and headed, "The complaint of Stewart Johnston, 'of, &c., taken and sworn to, this 28th day of August, in evidence on 1860, before me, who saith," &c. (detailing the circum- under the stances of the wound given by the prisoner), was received though it is in evidence, subject to the objection that it was a complaint, headed "The and not a deposition, and that it did not appear on its face, instead of to have been taken in presence of the prisoner. Evidence nation," of was admitted to shew that the prisoner had been arrested the deceased, and brought before the Justice; that the deceased was appear on its sworn, and his deposition taken, in presence of the pris- been taken in oner. The learned Judge reserved the question of the the accused, it admissibility of the evidence, for the consideration of the that, in fact, Court. complaint," "The exami and does not face to have presence of being proved it was taken in his presence. (Parker Johnson, Q. C., moved in arrest of judgment, in Mich- and Ritchie, aelmas term last. The evidence was inadmissible, because JJ., dubitanit was only a complaint made under the Rev. Stat. c. 156, tibus.) 1861. THE QUEEN against MILLAR. § 1, and in the very form given in page 453. It differs from a deposition of a witness, which must state on its face that it was taken in the presence and hearing" of the prisoner (1 Rev. Stat. 455); and unless it does so appear, the statement is not admissible in evidence, under the seventh section of the Act. Rex v. Smith (a). This paper states that it was "taken and sworn to." That means that it was taken first, and sworn to afterwards; therefore the statement of the deceased was not made under the sanction of an oath, though he swore to the truth of it afterwards; and in that case, the prisoner would not be bound to cross-examine. When the complaint or deposition is returned, it becomes a record, and cannot be varied by parol evidence, or any defects in it, supplied by evidence of what took place at the time. The statement of a prisoner cannot be taken on oath; and where a statement purported to have been so taken, parol evidence to shew that he was not sworn, was rejected. Rex v. Smith (b); Rex v. Thornton (c); Reg. v. Owen (d); 1 Phill. Ev. 106, 352. In Rex v. Wylde (e), where the examinations taken by the Justice, stated that the prisoner declined to say anything, evidence that he had made a statement before the Justice was rejected; and in Reg. v. Pikesley (f), where the depositions shewed that the prisoner was sworn and made a statement, the statement was rejected, though it was proved, that in fact he was not sworn. If parol evidence is not admissible to shew, in contradiction to the writing, that a prisoner was not sworn when he made a statement, a fortiori it is not admissible here. It is important to know in what character the evidence was received. [RITCHIE, J. If it had been offered as a declaration of the deceased, made in presence of the prisoner, to which he said neither yea or nay, I should hesitate to say it was not admissible, as a circumstance in the cause, to which the jury might give what effect they pleased.] If it had been offered in that character, I should have (a) 2 Stark. 211. (d) 9 C. & P. 238. (b) 1 Stark. 242. (c) 1 Moo. C. C. 27. (f) 9 C. & P. 124. adopted |