livered by plaintiff, is not evidence to fix him with a fraud, though the note is proved to have been destroyed. Hughes v. Wilson, 1 Stark. 179. Ellenborough, C. J. 1816.

134. But it would be evidence of the time of sailing. Ibid.

135. Notice of dissolution, signed by a partner, is evidence against him, of legal dissolution, though partnership be created by deed. Doe, d. Waithman, v. Miles, 1 Stark. 181. Ellenborough, C. J. 1816.

F. (b) How proved. (And see STAMPS, D. 9, 10, 11, 3 Anst. 789.)

136. An entry made by a clerk in a trader's book, can only be proved by the clerk himself. Cooper v. Marsden, 1 Esp. 1. Kenyon, C. J. 1793.

142. A bond 30 years old, found amongst the papers of a corporation, who were the obligees, is admissible without proof of the hand-writing of the obligor or attesting witness. The Governor and Company of the Chelsea Water-works v. Cowper, 1 Esp. 275. Kenyon, C. J. 1795.

Acc. Bull. N. P. 255; Fry v. Wood, Selw. 517, (n) 8; Rees v. Mansell, ibid. (n) 9.

143. If accompanied with possession or something equivalent. Forbes, administrator of Henchett v. Wall, 1 Esp. 278. Lord Mansfield, C. J. 1764.

S. C. 1 Bla. 532. And see Co. Litt. b. b. Doe v. Earl of Pembroke, 11 East, 504.

Sed vide Benson v. Olive, Bunb. 284, 5.

144. Copy of a letter taken by a copying machine, is not evidence with137. Such an entry is not made evi-out notice to produce the original. dence by proving the hand-writing of Nodin v. Murray, 3 Campb. 228. the clerk, and that he is abroad. Ibid. Ellenborough, C. J. 1812.

138. But semble, that a person who 145. Held, that where the copy of a saw the entry soon after it was made, deed is given in evidence after notice to may prove that fact in corroboration of the opposite party to produce the origimore direct evidence. Digby v. Stedman nal, the execution need not be proved. et alt. 1 Esp. 328. Kenyon, C. J. 1795. Doxon v. Haigh et alt. 1 Esp. 409. 139. After notice to produce a letter, Kenyon, C. J. 1795. the correctness of a copy may be proved by any person who has read the original, as well as by the clerk who wrote it. Liebman and others v. Pooley and others, 1 Stark. 167. Ellenborough, C. J. 1816.

Sed vide post, pl. 149, 150; Gordon v. Secretan, 8 East, 548; Pearce v. Hooper, 3 Taunt. 60.

146. The copy of a notice is in itself an original, and may be given in evidence without notice to produce_the 140. But where plaintiff had given counterpart delivered. Gotlieb v. Dannotice to defendants to produce a letter, vers, 2 Esp. 455. Eyre, C. J. 1796. and proved an acknowledgment of their 147. An instrument produced by the having received a copy of such letter, adverse party, under a notice, cannot be in the plaintiff's book, made by a de- given in evidence as an agreement beceased, whose entries had frequently tween such party and a stranger, unless been examined, and found correct, was it he stamped. Doe d. St. John v. Hore, allowed to be read. Pritt and others v. 2 Esp. 724. Kenyon, C. J. 1799. Fairclough and others, 3 Campb. 305. Ellenborough, C. J. 1812.

148. Semble, that a notice to produce a notice calling for the production of 141. So the copy of a letter, accom- papers, is unnecessary, and that an panied with a memorandum, in the examined copy of the notice served is hand-writing of a deceased clerk, pur- sufficient. Surtees et alt. v. Hubbard, porting that the original had been for- 4 Esp. 203. Ellenborough, C. J. 1802. warded by him, was admitted as evi- Acc. Jory v. Orchard, 2 Bos. and Pul. dence, upon proof that this was his usual mode of transacting business. Hagedorn v. Reid, 3 Campb. 377, 9. Ellenborough, C. J. 1812.

And see ante, F, (a) 117, 119.

39.

149. Where ship's articles come out of the hands of the adverse party upon notice, the subscribing witness must be called, except in the single case of an

K

action by a seaman for wages, for which may be given of the contents of such occasion the articles are made evidence notice, without a notice to produce it. of themselves, by 2 Geo. II. cap. 26. Ackland v. Pearce, 2 Campb. 599. Le 2 Geo. II. cap. 36. sect. 2. and 8. Blanc, J. 1811. Johnson v. Lewellin, 6 Esp. 101. Ellenborough, C. J. 1807.

155. Where the terms of a licence require that the time of sailing should 150. And the rule extends to agree-be indorsed thereon, and the licence was ments not under seal. Wetherston v. burnt at the Custom-house, a proper Edgington, 2 Campb. 95. Heath, J. indorsement was presuined. Butler v. Kingston, 1809. Allnutt, 1 Stark. 222. Ellenborough, C. J. 1816.

151. An indorsement on a bond in the hand-writing of the obligee, dated in 1795, acknowledging the receipt of interest and part of principal, cannot be produced to meet evidence of payment 157. To make signatures to ancient in 1794, without proving that it was on documents available for this purpose, a the bond recently after the day on which witness must be produced, who will it bears date, and at a time when such swear that by examining several such indorsement directly militated against signatures, he has acquired a sufficient the writer's interest. Rose, administra- knowledge of the hand-writing, to be tor, &c. v. Bryant, 2 Campb. 321. El-enabled, without a contemporaneous lenborough, Č. J. 1809.

161. A clerk from the post-office may] of the receipt of such letters. Doe d. be asked whether, from the bare inspec-Turner v. Wallinger. Holroyd, J. Dortion of the signature, he can pronounce chester Spring Assizes, 1819.

it to be a forgery. Ibid.

169. But a person skilled in the

S. P. Goodtitle v. Braham, 4 T. R. detection of forgeries, may prove that a 497, 8. particular libel is written in a feigned 162. An acknowledgment by a party hand, though he never saw the defendof his hand-writing, though made pend- ant write. The King, on the prosecution ing a treaty for a compromise, is evi- of Jackson, v. Cator, 4 Esp. 117. dence against him. Waldridge v. Ken- Hotham, B. Maidstone, 1802. nison et alt. 1 Esp. 143. Kenyon, C. J. 1794.

163. In a case where there was contradictory evidence respecting the defendant's hand-writing, the jury were allowed to compare letters, admitted to have been written by him with the disputed signature. Allesbrook v. Roach, 1 Esp. 351. Kenyon C. J. 1795.

S. C. Peake's Evid. 104, 7. Chitty on Bills, 496. Acc. Goodtitle v. Braham, 4 T. R. 497. And see Co. Litt. 6, b. Sed vide Dacosta v. Pym, Peake's Evid. App. lxxxv.

164. To prove the hand-writing of a member of parliament, the opinion of a clerk employed to inspect franks, who has never had occasion to apply to the member to verify his hand-writing, is insufficient. Batchelor v. Sir John Honeywood, 2 Esp. 714. Kenyon, C. J. 1799.

165. If a witness, who has seen the drawee write only once, thinks that the acceptance is in his hand-writing, it is evidence to go to a jury, though he state that he can form no belief on the subject. Garrells v. Alexander, 4 Esp. 37. Ellenborough, C. J. 1801.

S. P. Goodtitle d. Revett, v. Braham, 4 T. R. 497.

170. But his opinion, that the particular libel is in the defendant's handwriting, which he forms from comparing it with letters, which are proved to have been written by the defendant, is inadmissible. Ibid.

Acc. Cary v. Pitt, Peake's Evid. App.

lxxxiv.

Sed vide Goodtitle d. Reve, 4 T. R.

497.

171. And the same rule is observed in civil cases. Macferson v. Thoytes, Peake, Kenyon, C. J. 1790.

20.

14.

172. S. P. Stranger v. Searle, 1 Esp. Kenyon, C. J. 1793.

173. A witness who has seen a party write, but has forgotten the character of the hand-writing, may refresh his memory by referring to the instrument which he saw the party write. Burr v. Harper, Holt, 420. Dallas, J. 1816.

174. To prove an acceptance to have been forged by J. S. the drawee cannot give evidence of similar forgeries committed by J. S. Balcetti v. Serani and another, Peake, 142. Kenyon, C. J. 1792.

166. If, however, his opinion rests 175. S. P. ruled in Viney v. Barss, upon a comparison of hands, it is inad-1 Esp. 293. Kenyon, C. J. 1795. missible. Ibid.

S. P. ruled by Lord Mansfield, in Graft v. Bertie, Peake's Evid. 103.

167. As where he has merely seen the party subscribe his name to another Chitty on Bills, 494. instrument, to which he is the attesting witness, and is unable to form an opinion respecting the hand-writing of the party,

without examining such other instru

G. PAROL EVIDENCE.

ment. Filliter and others, assignees of G. (a) To supply the place of written

Blisset, v. Minchin and Carter. Holroyd, J. Winchester Spring Assizes,

1819.

instruments.

176. Where, on principles of public

Cooke v.

168. Hand-writing is well proved by policy, a document cannot be read in a witness who has received letters from evidence, the effect will be the same as the party, in answer to letters written to if it was not in existence. him by the witness, although the witness Maxwell, 2 Stark. 183. Bayley, J, has never done any act in consequence 1817.

177. Therefore where such a docu- | prove the payment without the producment contains an order from a public tion of the warrant of attorney. Bayne officer, no evidence can be given of its v. Stone, executor of Stone, 4 Esp. 13. contents, but it may be shewn that Kenyon, C. J. 1801.

was done, was done by the order of such officer.

Ibid.

178. Oaths taken by a preacher under the toleration act, are matter of record, and cannot be proved by parol evidence. Rex v. Hube and others, Peake, 131. Kenyon, C. J. 1792.

179. Held, that in trover for a bill of exchange, parol description of the instrument cannot be given, unless the defendant has had notice to produce the bill. Cowan v. Abrahams and another, 1 Esp. 50. Kenyon, C. J. 1793, and K. B. 1794.

180. But it has since been held, that in assumpsit against a carrier for the non-delivery of promissory notes, the instruments may be described by parol, without notice to produce the originals. Jolley v. Taylor, 1 Campb. 143. Mansfield, C. J. 1807.

Acc. How v. Hall, 14 East, 274. And see Bucher v. Jarratt, 3 Bos. and Pull. 143; Rex v. Aikle, Leach, C. C. 330.

185. A witness cannot give evidence of the particular contents of accounts which are not produced. Roberts and another, assignees, &c. v. Doxon, Peake, 83. Kenyon, C. J. 1791.

186. But he may be examined as to the general state of accounts. Ibid.

187. So he may prove that a party has accepted bills in a particular form according to one invariable course of dealing. W. Spencer v. Billing, 3 Campb. 310. Ellenborough, C. J. 1812.

188. But if the mode of dealing varies, the bills must be produced. Ibid.

189. In an action for not delivering goods, manufactured by the defendant in pursuance of an order signed by the plaintiff only, the precise terms of the contract, and the defendant's accession to it, may be proved by parol. Ingram v. Lea, 2 Campb. 521. Ellenborough, C. J. 1810.

190. Although a receipt have been given, the fact of payment may be proved by a person present. Rambert v. Cohen, 4 Esp. 213, 4. Ellenborough, C. J. 1802.

181. Where usury is stated to have been committed in discounting the bill, upon which the action is brought, and another bill, in one undivided transac- 191. In an action against overseers, tion, no parol evidence is admissible as acts done by them in that capacity, are to the contents of the latter, unless no- evidence of their being overseers. Mertice has been given to produce it. Hat-rill's lessee, v. Whitechurch and others. tam v. Withers, 1 Esp. 259. Kenyon, C. J. 1795.

182. Semble, that evidence of usage, is inadmissible to support a claim to a private right. Withnell, clerk, v. Gartham, clerk, 1 Esp. 322, 4. Kenyon, C. J. 1795.

Burrough, J. Salisbury, 1817.

192. But they are not concluded by the acts of former overseers, without regular proof of their appointment. Ibid.

193. Or by the act of a co-defendant previous to the commencement of his overseership; comme semble. Ibid.

S. P. arg. in S. C. 6 T. R. 338. 194. To prove rent to be payable 183. To prove that A. was chosen quarterly, evidence that the land.ord's constable, the wardmote book contain- other tenants, under similar circuming an account of the election, should stances, pay quarterly, is not admisbe produced; a list from the town clerk's sible. Carter v. Pryke, Peake, 95. office of the persons sworn in to serve Kenyon, C. J. 1791. the office, in which the name of B. ap- 195. Upon an indictment for sacrilege, pears as having been sworn as substitute laying the property in the custody of A. for A. is not the best evidence. Under- and B. churchwardens, it is sufficient to hill v. Witts, 3 Esp. 56. Kenyon, C. J. shew that A. and B. have acted in that capacity. Rex v. Mitchell. Abbott, J. Salisbury Spring Assizes, 1818.

1799.

184. A. gives a warrant of attorney to secure a joint debt to B. and C. B. receives the whole. In an action by C. to recover his moiety, A. may be called to

197. Or that a particular meaning was affixed to the word of indeterminate written agreement is shewn to have existsignification, (privilege) in a previous ed, such party is not bound to produce it, conversation between the parties. Birch although he has averred in his declaraand another v. Depeyster, 4 Campb. 385, tion, that the defendant was not ex1 Stark. 210. Gibbs, C. J. 1816.. empted from the operation of the custom And see Iggulden v. May, 7 East, by any special agreement. Senior v. 237; 3 Smith, 269; 9 Ves. 325; 2 N. Armytage, bart. Holt, 197. Thomson, R. 449, S. C. C. B. York, 1816.

199. In an action on a promissory 205. Parol evidence is not admissible note, the defendant cannot set up a to vary the terms of a written declaraverbal agreement entered into at the tion; but it may be shewn that the time of the making of the note, where-party signed the instrument by mistake. by the plaintiff engaged to take a renewal Holsten v. Jumpson, 4 Esp. 189. Ellenof the note, instead of payment at ma- borough, C. J. 1802. turity. Hoare and others v. Graham and another, 3 Campb. 57. Ellenborough, C. J. 1811.