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contradict them.(1)(a) Thus, if a verdict, finding several issues, were to be produced in evidence, the opposite party would not be allowed to shew, that no evidence was offered on one of the issues, and that the finding of the jury was indorsed on the postea by mistake.(2) An officer, who has the care and custody of records, anay be examined as to their condition, though he cannot be examined as to their matter or contents.(3)(b)

A record, then, is conclusive proof, that the decision or judgment of the Court was, as is there stated: and evidence to contradict it will not be admitted.(c) But it will not be conclusive as to the truth of allegations, which were not material nor traversable.(4) Thus, for example, a party will not be estopped from averring in an action of debt on a bond, that the bond was made at A, though in a former action upon the same bond, he averred it to have been made at B.(5) So, in the case of a conviction for felony, &c. where the jury have given a general verdict, the record will not be conclusive, that the offence

(1) Co. Lit. 117. h. 260. a. Lamb. Just. B. 1. c. 13. p. 71. Gilb. Ev. 5. Bull. N. P. 221.

(2) Reed v Jackson, 1 East, 355.

(3) Leighton v Leighton, 1 Str. 210. (4) Co. Lit. 352. b.

(5) Com. Dig. tit. Estoppel, E. 6.

evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrolment of the judgment? The maxim in this, as well as in other cases is, that nihil tam naturale quam quidlibet dissolvi eo modo quo ligatur. To give an entry on the minutes, that authority would destroy the certainty, order, and solemnity of enrolments; and it has been frequently held, that the courts cannot regard any proceeding as a matter of record until it is enrolled." Croswell v Byrnes, 9 Johns. Rep. 287.

(a) Vide Leech v Armitage, 2 Dall. 125.

(6) The King in aid of Reed v Hooper, 3-Price Ex Rep. 495. The endorsement of the clerk of the enrolments of the day of the enrolment by way of date is part of the record, and cannot be averred against, nor is evidence admissible to, show that it was in fact enrolled on some other day; and this, although the date be written on an erasure.

(c) The validity of a record cannot be impeached by any allegation in the pleadings. Green & Green v Ovington et al. 16 Johns. Rep. 55.

was committed on the day mentioned in the indictment, for the time is not of the substance of the charge; and, therefore, the party interested to dispute the forfeiture, (which, in the case of real property, relates to the time of the offence,) may falsify the record, and shew that the offence was committed on another day.(1) But if the jury find specially the precise day, all parties are concluded.(2)(a)

The first sort of records to be considered are acts of parliament; and these, says Ch. B. Gilbert, are the highest and most absolute proof. Acts of parliament relate either to the kingdom at large, when they are called general acts; or only to particular classes of men, or to certain individuals, in which case they are called private acts. Laws which concern the king, or all lords of manors, or all officers in general, or all spiritual persons, or all traders, &c. are public laws. But such as relate.to the nobility only, or to spiritual lords, or to particular officers or particular trades, are private acts.(3) This distinction between public and private acts is not applied, in collections of the English statutes at large, to any statutes previous to those of Richard the Third. From that period the distinction commences in the several ta bles prefixed to the respective collections. (4)

The general rule is, that public acts of parliament are to be taken notice of judicially by courts of law, without being formally set forth; but particular or private acts are not regarded by the judges, unless formally shewn

(1) Ives' case, 3 Inst. 230. Gilb, Ev. 230.

(2) Gilb. Ev. 230.

(3) Gilb. Ev. 39, 40.
(4) See preface to new edit. of Stat-
utes at large.

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(a) An entry on the record of the issuing of a writ, is not conclusive; it is a fact triable by the jury and not by the record. Such an entry, the court say, is like a committitur entered of record; it does not estop the party to deny the fact, and it shall be tried per pais, and the record is but evidence and not conclosive. Brown v Van Deuzer, 10 Johns, Rep. 51.

and pleaded.(1) In some cases, however, the necessity of pleading a private act has been dispensed with; as, where there is a special clause, enabling the defendant, in answer to any action for matters done under the act, to plead the general issue; or, where the private act has been recognised by some public act of the legislature. Thus, the statute 23 H. 6. c. 9. relative to sheriffs' bonds, (even supposing it in its original constitution to be a private act, as relating only to officers of a certain description, which however according to the best authorities it is not,) must now be taken notice of judicially, because the statute 4 & 5 Ann. c. 16. s. 20. enaables the sheriff to assign the bond, and thus makes it a general law.(2)

The preamble of an act of parliament, reciting that certain outrages had been committed in particular parts of the kingdom, has been adjudged by the Court of King's Bench in a late case(3) to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. Public acts of parliament, it was said, are binding upon every subject; the Judges are bound to take judicial notice of their contents; every subject is, in judgment of law, privy to the making of them, and supposed to know them; the passing of an act of parliament is a public proceeding in all its stages, and when the act is passed, it is, in the contemplation of law, the act of the whole body of the kingdom. The Court of King's Bench, for these reasons, were of opinion that the preamble in question had been properly admitted in evidence.

In many cases a defendant will be precluded, by the nature of the pleadings, from taking advantage of a pub

(1) Bull. N. P. 222.

(3) R. v Sutton, Hil. Term. 1810. (2) Saxby v Kirkus, Bull. N. P. 224. 4 Maule & Selw. 532. Samuel v Evans, 2 T. R. 575.

lie act of parliament. Thus, in an action of debt upon a bond, the defendant cannot, under the plea of non est factum, avail himself of the statute 13 Eliz. c. 8. s. 4.(1) which makes usurious contracts utterly void. But if he pleads that the bond was void on account of usury, he may insist upon the statute, though he has not formally recited it. (2) In an *action of assumpsit, indeed, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may shew under the general issue, that the contract was usurious, (3) or founded on an illegal consideration which makes the contract void. (4)

If an action or information be brought upon a penal statute, and there is another statute which exempts or discharges the defendant from the penalty, this latter act (as some books lay down the rule) cannot be given in evidence under the general issue, but ought to be pleaded; for the general issue is but a denial of the plaintiff's declaration, and the plaintiff, it is said, has proved him guilty, when he has proved him within the law upon which he founds his declaration.(5) It is, indeed, enacted by statute 21 Jac. 1. c. 4. s. 4., that in actions on penal statutes it shall be lawful for the defendant to plead not guilty, or that he owes nothing, and to give in evidence such special matter, which, if pleaded, would have discharged the defendant at law; but this statute has been generally considered to attach only on antecedent penal laws, and not to extend to those subsequently enacted.(6) However, it should seem, according to the modern practice, the defendant may plead nil debet, and give in evidence the statute; which would shew, that he does not owe the penalty. Thus, on a prosecu

(1) See also 12 Ann. St. 2. c. 16. (2) Com. Dig. tit. Pleader, 2 W. 23. (3) Ld. Bernard v Saul, i Str. 498. Bull. N P. 152. S. C.

(4) Adm. per Cur. in Hussey v Jacob, iLd. Ray. 89.

(5) 2 Roll. Ab. 683. pl. 13. Bull.

N. P. 225.

(6) Gaul's case, I Salk. 372. Hicks" case, ib. by Lord Mansfeld in 4 Burr. 2167. Bull. N. P. 196. French q. t v Coxoo, 2 Str. 1081. S. C. more fully stated in 2 Selw. N. P. 562. n. (112)

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tion for exercising a trade contrary to the provisions of a statute, the defendant may shew, under the general issue, that he is exempted from penalties by a subsequent statute (1) and on the trial of an indictment against a parish for not repairing a highway, the defendants may on the general issue give in evidence an act of parliament, which exempts them from the repair, and transfers it to commissioners. (2) And if the same act, which imposes the penalty, contains also the proviso of exemption, it is quite clear that this proviso may be shewn under the general issue. (3)

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CHAP. II.

*Of Verdicts and Judgments of Courts of Record.

IN treating of judicial proceedings, and inquiring in what cases they are admissible in evidence, it is proposed to consider, first, the verdicts and judgments of courts of record; secondly, the judgments of courts of exclusive jurisdiction; and thirdly, certain other proceedings of an inferior kind.

The admissibility of verdicts and judgments of courts of record is the subject of the present chapter, in which will be considered, first, their admissibility, with reference to the parties in the suit: secondly, their admissibility, with reference to the subject-matter of the suit; thirdly, the admissibility, in civil cases, of verdicts which have been given in criminal prosecutions.

(1) R. v Pemberton, 1 Blac. Rep. 230

(2) R. v Inhabitants of St. George, 3 Campb. 222.

(3) Sutton v Bishop, 4 Burr. 2284. Sibly v Cuming, 4 Burr. 2469. Bull N. P. 225.