EVIDENCE. E. OTHER PUBLIC INSTRUMENTS. (a) Where evidence. (b) How proved. F. PRIVATE WRITINGS. (a) Where evidence. (b) How proved. (c) Hand-writing. G. PAROL EVIDENCE. wood, 3 East, 346, 366. And see Gilb. 2. The record of a judgment for work Sed vide ACTION, A. 3. The registered memorial of a deed is not primary evidence. Molton qui tam v. Harris, 2. Esp. 549. Kenyon, C. J. 1797. 4. But the production of a deed with (a) To supply the place of writ- the memorial indorsed, is sufficient proof ten instruments. (b) To explain them. (c) Hearsay. H. ADMISSIONS, (a) By parties. of the inrolment. Compton v. Chandless, 5. To charge A. and B. as partners, the record of an issue out of the exchequer, directed to try the fact of the partnership in a suit between A. and B. is evidence. Whately v. Manheim and Levy, (b) By persons referred to by the 2 Esp. 608. Kenyon, C. J. 1797. parties. (c) By privics. (d) By co-trustee. (g) By partner. (h) By agent. (i) By stranger. I. DECREE OF EVIDENCE. (c) Conclusive. K. NEGATIVE AVERMENTS. A. RECORDS. 6. A conviction is not evidence for the informer, though his name do not appear on the face of the proceedings. Smith v. Rummens, 1 Campb. 9. Ellenborough, C. J. 1807. 7. S. P. ruled in Hathaway v. Barrow and others, 1 Campb. 151. Mansfield, C. J. 1807. Acc. Burden v. Browning, 1 Taunt. 520. And see Richardson v. Williams, 12 Mod. 319; Rex v. Boston, 4 East, 572. S. C. 1 Smith, 302; Gibson v. McCarty, Cas. temp. Hardw. 311; Hillyard v. Grantham, 2 Vez. 246. 8. In an action by A. against B. for suing out an alias fieri facias, before the first writ was returned, under which the sheriff had seized goods sufficient to satisfy the execution, the plaintiff put in the writs. Held, that the defendant was entitled to have the returns read. Gyfford v. Woodgate and another, 2 Campb. 117. Ellenborough, C. J. 1808. 9. And it being stated in the return 1. On an issue to try the right of to the first writ, that an alias had alelecting churchwardens, the record of a ready issued in pursuance of an agreetrial in which the same title was directly ment between the parties, it was held, in issue between other parties, claiming that this was prima facie evidence of a Ibid. the same office in the same right, is licence from the plaintiff, to proceed in evidence. Berry and another v. Banner this irregular manner. and another, Peake, 156. Kenyon, Ć. (a) In what cases evidence. J. 1792. And the court of K. B. refused a rule to set aside nonsuit. Ibid. and 11 East, N. But not conclusive, Reed v. Jack-297. son, 1 East, 355, 7; Outram v. More 10. Upon an information for obstruct ing an officer, the prosecutor, in order under exchequer process, grounded upon to invalidate the testimony of a person an information filed against the plaintiff, who came to prove an alibi, produced a the information must be produced. record of the conviction of the defendant | O'Connor v. Charter, 2 Esp. 641. Kenbefore two magistrates for the same of-yon, C. J. 1798. fence, which conviction purported to be 13. And the information must appear grounded upon the depositions of the to be prior to the process. Ibid. same witness. Ruled, that the record 14. An averment that J. S. was arcould only be read for the purpose of rested," under a writ indorsed for bail, shewing that such a proceeding had by virtue of an affidavit now of record," taken place, and that it was not evidence to contradict the statement of the witness, whose testimony could be impuned only by calling persons who were present at the former examination, to prove on oath what there took place. The King And the court of C. P. refused a rule v. Howe, 6 Esp. 124. Ellenborough, to set aside nonsuit. Ibid. and I Bos. C. J. 1808. and Pul. 281. must be proved by the production of the affidavit. The production of the writso indorsed, is not sufficient. Webb v. Horne and Williams, Sheriff of Middlesex, 2 Esp. 671. Eyre, C. J. 1798. 11. Upon the trial of an ejectment 15. To prove the issuing of a writ, an respecting Black Acre, between A. and office copy should be produced, as it B., in which it was necessary for A. to will be presumed to have been regularly prove that he was the legitimate son of returned. Edmonstone v. Plaisted, gent. J. S.; A., after proving by other evi-one, &c, 4 Esp. 160. Ellenborough, dence that J. S. was his reputed father, C. J. 1803. offered to give in evidence a deposition made by J. S. in a cause in Chancery, A. (a) 8. instituted by A. against C. D. in order And see Gufford v. Woodgate, ante, 16. To entitle a party to go into scto perpetuate testimony to the alleged condary evidence, it must be shewn, that fact disputed by C. D., that he was the search has been made in the treasury, legitimate son of J. S., in which charac-and that subsequently to the return-day, ter he claimed an estate in remainder in the writ has been in possession of the White Acre, which was also claimed in opposite party. Ibid. remainder by C. D. B., the defendant. 17. It is not sufficient to produce the in the ejectment, did not claim Black præcipe in the filazer's book, and to Acre under either A. or C. D., the plain- prove a notice to produce the writ. Ibid. tiff and defendant in the Chancery suit. 18. The payment of money into Held by the judges, (Graham, B. dissen-court can be proved only by the rule. tient,) that the deposition could not be Israel v. Benjamin, 3 Campb. 40. received upon the trial of such eject-Ellenborough, C. J. 1811. ment against B. as declaration of the al- 19. To prove the day on which the leged father, in matter pedigree, House court set for the trial of a cause at Nisi of Lords,-Committee of Privileges on Prius, the record itself must be prothe petition of William Fitzharding duced. Thomas v. Ansley and Smith, Berkeley, claiming as of right to the sheriffs of London, 6 Esp. 80. EllenEarl of Berkeley, Monday, May 13th, borough, C. J. 1806. 1811. 4 Campb. 401. 12. Where one of two defendants in assumpsit pays the debt and costs after verdict to avoid execution, the parties in evidence to shew the amount of the debt in an action against the defendant for contribution. Foster v. Compton, 2 Stark. 364. Abbott, J. 1818. A. (b) Where the only evidence. 20. Where, however, there are proper materials, the postea may be indorsed in court. Rex v. Hammond Page, 2 Esp. 650, and 6 Esp. 83. Kenyon, C. J. 1788. 21. But where a juror has been withdrawn and the cause referred, semble, that such special circumstances will not be allowed to be indorsed in court at the second trial. Ibid. 22. Nor can the postea be read with12. Upon a justification as an officer out a stamp. Ibid. EVIDENCE. And see Jones v. Randall, Cowp. 17. amination of the parliament roll. Rex 23. An averment, that a commission v. Barnitt, 3 Campb. 344. Ellenboof bankrupt has been duly superseded, rough, C. J. 1813. is not supported by the production of the chancellor's order for superseding the commission. Poynton v. Forster and others, 3 Campb. 60. Ellenborough, C. J. 1811. A. (c) How proved. B. COURT ROLLS. B. (a) Where evidence. 32. Court rolls, containing licences to fish, granted in the 17th century at cer24. A judge's order is sufficiently tain rents, are admissible to prove a proved by the rule of court thereon. prescriptive right to a several fishery, Still and another v. Halford, 4 Campb. claimed as appurtenant to a manor, 17. Ellenborough, C. J. 1814. 25. Office copies are not evidence in other courts, except where the officer has not performed his duty until he has delivered out a copy of the record. Black v. Lord Braybroke, 1 Stark. 13. K. B. H. T. 1817. without shewing the actual payment of those rents, where it appears that during the last century, leases have been granted of the fishery, and that for the last 40 years the rents under the leases have been regularly paid, or that other acts of ownership have been acquiesced in. 26. Therefore a copy of a colonial Rogers and others v. Allen, 1 Campb. judgment under the hand of the chief 309. Heath, J. Chelmsford, 1808. 33. Ancient presentments are not clerk of the court, is not admissible here, although usually received in evi-evidence for the lord, unless signed by dence there. Ibid. and Appleton v. a party in privity of estate with the person against whom they are produced. Lord Braybrooke, 2 Stark. 6. Benett v. Coster. Burrough, J. Wilts Summer Assizes, 1817. And the court of K. B. set aside a nominal verdict for the plaintiff. Ibid. K. B. H. T. 1817. copy And see post, FOREIGN LAWS. of a 27. The correctness of the record is sufficiently proved by a witness who held the copy while some other person read over the original. M'Neil v. Perchard et alt. sheriffs of London, 1 Esp. 263. Kenyon, C. J. 1795. 28. S. P. ruled in Reid v. Margison, esquire, late sheriff of Sussex, 1 Campb. 469. Macdonald, C. B. Lewes, 1808, and Exch. M. 1808. 29. S. P. ruled in Gyles and another, assignees of Smith, v. Hill and another, 1 Campb. 471. Lawrence, J. 1809. Dart v. Rolf, 2 Taunt. 52, S. P. 30. A fine may be proved either by an examined copy, or by the production of the chirograph or indentures. Doe d. Summer AsLord Dormer v. sizes, 1816. Thomson, C. B. 1816. 31. Where an indictment sets out the title of an old statute, (5 Eliz. cap. 4.) agreeably to Ruffhead, which differs from a copy of the act lately printed by the king's printer, the court refused to B. (b) How proved. 34. An examined copy of a particular entry in the court rolls of a manor, is evidence without producing the origi nals, even where it may be presumed that the books themselves contain other entries connected with the point in issue. Doe d. Churchwardens of Croydon v. Cook, 5 Esp. 221. Heath, J. Surry, 1805. Style, 450. C. OTHER LEGAL PROCEEDINGS. C. (a) Where evidence. 35. An examined copy of an affidavit direct a nonsuit without proof of an ex-made by a third person, filed at a judge's chambers and used by the defendant on tion. Mathews v. Haigh, 4 Esp. 100. a motion to put off the trial is evidence against the defendant of a fact therein stated (that defendant was mortgagee in possession.) Doe d. Hanley v. Wood. Abbott, J. Cornwall Lent Assizes, 1818. 36. The deposition of a deceased examinant before commissioners of bankrupt is not evidence to prove the act of bankruptcy, unless it be enrolled. Jellies, assignee, v. Mountford. Abbott, J. Sittings after Trinity Term, 1818. 37. Letters of administration are not evidence of the death of a party. Thompson v. Donaldson, 3 Esp. 63. Kenyon, C. J. 1799. 38. Semble, that the sentence of the spiritual court is not sufficient evidence of a divorce, without producing the libel and proceedings. Stedman v. Gooch, 1 Esp. 4, 6. Kenyon, C. J. 1793. Le Blanc, J. 1802. And see ante ATTORNEY, A. 4. Johnson v. Smith, 2 Burr. 950. 43. Where a rule is made for examining a witness upon interrogatories, on the ground of his being about to leave the kingdom, his depositions may be read, if he has actually sailed on the voyage, though the vessel has been driven back into port by contrary winds. Fonsick v. Agar and others, 6 Ésp. 92. | Mansfield, C. J. 1806. Acc. Ward v. Wells, 1 Taunt. 461. 44. As to the mode of examining upon interrogatories, see Cazenove v. Vaughan, 1 M. and S. 4. Gilb. Evid. 56, 7. Com. Dig. Evid. C. 4. 45. To prove the time of signing final judgment, the day-book at the judgment office, from which the judgments are entered into the docket-book, is not Noell v. Wells, 1 Lev. 235; Rex v. evidence. Lee v. Meecock, 5 Esp. 177. Vincent, 1 Stra. 481; Allen v. Dundas, Lawrence, J. 1804. 3 T. R. 125; De Metton v. De Mellon, 46. In an action for goods sold, where 12 East, 234. 1 Saund. 274, n. (3). the nisi prius record is entitled of Easter Peaselie's case, 1 Lev. 101. Elden term, the declaration delivered by the v. Keddell, 8 East, 187; Davis v. Wil-plaintiff in Hilary term, is admissible to liams, 13 East, 232, Bull. N. P. 108, 246; Tyssen v. Clarke, 3 Wills. 551. 39. A divorce under the seal of a foreign court, is not evidence without calling persons to prove the laws of the country. Ganer v, Lady Lanesborough, Peake, 17. Kenyon, C. J. 1790. Acc. Fremoult v. Dedire, 1 P. Wms. 431. 40. The production of the postea in a former cause between the same parties, will support a plea of set-off to the extent of the verdict. Garland v. Scoones, 2 Esp. 648. Kenyon, C. J. 1798. S. P. contra, Pitton v. Walter, 1 Strange, 162. shew that the action was commenced before the expiration of the credit. Harris v. Orme, 2 Campb. 497. Ellenborough, C. J. 1809. 47. A bill in chancery is not evidence against the party, even of the facts on which he grounds his claim for relief. Doe d. Bowerman v. Sybourn, 2 Esp. 499. Kenyon, C. J. 1796. And the court of K. B. refused a rule to set aside nonsuit. Ibid. and 7 T. R. 12. S. P. by all the judges, Banbury peerage, Dom. Proc. 1809; Selw. 713. S. P. cont. Com. Dig. Evid. C. 2. And see Owen v. Jones, 2 Anst. 505. 48. Under a rule of the court to ad41. The production of a bill of sale mit a notarial copy of the condemnation executed by the sheriff, reciting the issu-of a vessel in evidence, such copy only ing of the writ and the seizure under it, establishes the fact of the condemnation, is sufficient evidence of the taking, with- and is not evidence of the particular out producing the writ or directly prov-defects upon which the condemnation ing the seizure by the officer. Wood-purports to be grounded. Wright v. ward v. Larking, 3 Esp. 286. Eldon, Barnard, 2 Esp. 700. Kenyon, C. J. C. J. 1801. 1798. 42. In an action by original, the pro- 49. Where a defendant sets up his duction of the declaration is not evidence bankruptcy and certificate, and the of the commencement of the suit; but plaintiff contends that the bankruptcy it is evidence that a suit was pending at relied on is a second bankruptcy, under the time of the delivery of such declara-[which the defendant has not paid 15s. in the pound, the production of the proceedings under the former commission, wherein the surrender and last examination are stated, is sufficient evidence of such former commission. Gregory v. Merton, 3 Esp. 195. Kenyon, C. J. 1800. Sed vide BANKRUPT, D. (b) 4, 5. 50. And it lies on the defendant to prove, that he has paid 15s. in the pound, under the second commission. Ibid. have it read. Jackson v. Burleigh, 3 58. Secus, after proof of the affidavit 59. The copy of an Irish judgment is not proved by shewing that it was compared with a parchment roll, produced to the witness in the Four Courts, Dublin. Adamthwaite v. Synge, 4 Campb. 372. 1 Stark. 183. Ellenborough, C. J. 1816. 51. Where the captain of an India- 60. It must be shewn that the record man has been examined upon interroga- was seen in the hands of the proper tories, under a rule of court, and has pro- officer, or in the proper place for the ceeded as far as Portsmouth on his out-custody of such records. Ibid. ward bound voyage, his depositions may 61. The copy of the deposition of a be read without its being distinctly person examined upon interrogatories at proved, that he is out of the kingdom, and therefore incapable of being called. Fonsick v. Agar and others, 6 Esp. 92. Mansfield, C. J. 1807. 52. And semble, it is sufficient if the witness is on board the vessel and ready to sail. Ibid. the chief justice's chambers, signed by 53. If the master of a private vessel, examined on interrogatories, refer to his log book, the entries referred to may be read as part of his deposition. Falconer 62. So the office copy of a rule, when v. Hanson, 1 Campb. 171. Ellenbo-received in the usual course of office, rough, C. J. 1808. does not require to be proved to be an examined copy. Ibid. 1 Anst. 201, 276, 2 Anst. 386, 3 Anst. 880, 923. S. P. Selby v. Hawes, Lord Raym. 745. And see Peake's Evidence, 33. 54. To entitle a party to read a deposition taken upon interrogatories, it is 63. Depositions taken under a comnot sufficient to shew that the witness mission issuing out of the Exchequer, is a seafaring man, and that he lately cannot be read without producing the belonged to a vessel in the Thames, commission, unless they are of so long without proving for what post the vessel standing as to afford a presumption that was bound, or that any inquiry had the commission is lost. Bayley et alt. been made for the witness. Ibid. v. Wylie, 6 Esp. 85. Ellenborough, And see Quinct. lib. 5, cap. 7. C. J. 1807. 55. The examination of a party 64. But in no case is it necessary to charged with a felony before a magis- produce the bill and answer, upon which trate cannot be taken on oath. R. v. the commission was granted. Ibid. Smith and another, 1 Stark. 242. Le Blanc, J. York, 1816. 56. And if it purport to be so taken, evidence to prove that no oath was taken is inadmissible. Ibid. C. (b) How proved. 65. An examined copy of an answer in chancery may be read without producing the original. Hodgkinson v. Willis, 3 Campb. 401. Ellenborough, C. J. 1813. 66. But the identity of the parties must be shewn. Ibid. 67. The practice of the ecclesiastical 57. In an action for maliciously hold-courts is a matter of fact to be proved ing to bail, the bare production of the by witnesses. Beaurain, gent. v. Sir writ by a person who received it in a W. Scott, 3 Campb. 388. Ellenboletter, will not entitle the plaintiff to rough, C. J. 1813. |