ments under any one of those who had signed, yet that circum- Terriers. stance could not affect the admissibility of the instrument, which was offered in evidence, not on the footing of an agreement, but as evidence of tradition and the received opinion within the manor. (1) Terriers are of two kinds, temporal and ecclesiastical. It has Terriers. been established by a variety of cases, that old terriers or surveys of a manor, are evidence of nanorial tenures or boundaries. (2) And an ecclesiastical terrier is evidence of the possessions of a church, if it has been regularly made and preserved in the proper repository. Ecclesiastical terriers are constantly received in questions of tithes: they are ecclesiastical records, made in perpetuam rei memoriam, and are as solemn instruments as any that can be produced on such subjects. (3) By the ecclesiastical canons, an inquiry is directed to be made, from time to time, of the temporal rights of the clergyman in every parish, and to be returned into the registry of the bishop. This return, which is generally signed by the minister, is denominated a terrier, and derives its authority from being found either in the Custody of. bishops register office, (4) or the registry of the archdeacon of the diocese. (5) Unless it comes from one of these repositories, it cannot, in general, be admitted in evidence. A paper, therefore, purporting to be a terrier, found in the charter-chest of a college, which had property in the parish, was thought to be inadmissible to disprove a modus. (6) However, under particular circumstances, this rule respecting the custody of the terriers has been relaxed, and a terrier has been admitted, though not brought from one of the regular repositories, when the custody in another place has been satisfactorily explained. One that was found in the registry of the dean and chapter of Litchfield, has been admitted in evidence against a prebendary. (7) This evidence was rejected at the 10. (1) Chapman v. Cowlan, 13 East, (2) Gilb. Ev. 69. (3) 5 Price, 380, 383. (4) Atkins v. Hatton, 4 Gwill. 1406. 2 Anstr. 386, S. C. 4 Gwill. 1593. (5) Potts v. Durant, 4 Gwill. 1450, 1454. 3 Anstr. 789, S. C. See Drake v Smyth, ante, p. 409. (1) (6) 4 Gwill. 1406. (7) Miller v Foster, 4 Gwill. 1406, n., and see Bullen v. Michel, stated in ch. S, s. 2, infra. Terriers. Private custody. Evidence against whom. Signature. trial; but a new trial was afterwards granted by the Court of King's Bench, on the ground, that the evidence ought to have been received, as there appeared to be a proper connection between the terriers and the place where it was found; and a strong corroborating circumstance was, that the terrier was found annexed to an old lease of the prebend, of nearly the same date. (1) But when the custody is merely private, and unconnected with the subject-matter, the courts have never gone the length of admitting such papers in evidence. An instrument, therefore, purporting to be an endowment, without the seal of the bishop, and another purporting to be an Inspeximus of the former under his seal, were rejected, because they came out of the hands of a private person entirely unconnected with the matters contained in them. (2) A terrier is strong evidence against a parson; but it is never admitted for him, unless it be signed by a church-warden, or, if the church-wardens are nominated by him, by some of the substantial inhabitants of the parish. (3) Old terriers signed by the rector, church-wardens, and other inhabitants of the parish, are evidence for a succeeding rector against the land-owners, on a question of farm-modus, although they are not proved to have been signed by occupiers of the farm, or by any person from whom the land-owners derive title. (4) Terriers are generally signed by the minister of the parish; but this does not appear to be essentially necessary. In a late case, (5) on a bill filed by a vicar against the impropriatrix of a rectory, for agistment tithe, a terrier was given in evidence, on the part of the vicar, signed only by the church-wardens: it was objected, first, that it was not a terrier, because made by the church-wardens alone, and not signed by the vicar; secondly, even supposing it to be a proper terrier, yet that it could not be admitted in evidence in that cause against the rector, as it was (1) 4 Gwill. 1453. (2) Potts v. Durant, 4 Gwill. 1450. (4) Mytton v Harris, 3 Price, 19. Wood, B. contra. (5) Illingworth v. Leigh, 4 Gwill. not signed by any person claiming under, or on the part of the rector. However, the court were of opinion that the terrier was admissible; that such imperfect terriers were now uniformly received; that the terrier in question was signed by persons who were in no respect interested, and whose duty it was, from their official situation, to sign it; and that the want of the vicar's signature made it stronger evidence in favour of his suc cessor. books. The ancient books of the heralds' office, (1) and their visit- Heralds' ation-books of counties, (2) are evidence on a question of pedigree. The visitation-books contain the pedigrees and arms of the nobility of the kingdom from the twenty-first year of Henry VIII. to the latter end of the 17th century, during which period the two provincial kings of arms, soon after their investiture in office, usually received a commission under the great seal, authorizing them to visit the several counties within their respective provinces, "to take survey and view of all manner of arms, cognizances, crests, and other like devices, with the notes of the descents, pedigrees, and marriages of all the nobility and gentry therein contained; and also to reprove, control, and make infamous by proclamation, all such as unlawfully and without just authority usurp or take any name or title of honour or dignity." The first of these commissions was issued in the twenty-first year of Henry VIII., and the last in the second of James II. (3) From these visitation-books, entries were afterwards made into the books kept by the college of heralds. A licence from the Pope, granted in the reign of Edward II., Pope's bull. has been adjudged, in an old case, to be evidence of an impropriation, the pope being formerly the supreme head of the church, and having the disposition of all spiritual benefices. (4) For the same reason, a Pope's bull was formerly admitted in (1) King dem. Lord Thanet v. Foster, 2 Jon. 224. 82. (3) See First Report of the House of Commons on the Public Records, p. (2) Pitten v. Walter, 1 Str. 161. Appendix, (c. 8.) Matthews v. Port, Comb. 63. (4) Cope v. Bedford, Palm. 427. Corporation books. Tolls. 'ublic right. Tithes. Custody of. evidence to show that monastery lands had a special exemption from the payment of tithes. (1) Corporation-books, containing an account of the privileges or public transactions of the body, are evidence in a suit between the several members, on the same footing as manor-books between the tenants of a manor. But they are not evidence, in favour of a corporation, to support a claim of right against a stranger;(2) as, where a right to certain tolls is claimed by a corporation, entries in the corporation-books, respecting payments made by individuals in former times, are not admissible, on the part of the corporation, against a party who contests the right to tolls; (3) for such entries relating to the private interests of the corporation, and being of a private nature, cannot be evidence for the party to whom the books belong. (d) On a question of public right, such as the right of swearing and admitting freemen, &c., corporation-books are admissible. (4) And on a question of tithes also, (in which the books of a former rector are, in some cases, admissible in evidence for the successor,) entries made in the books of an ecclesiastical corporation aggregate are admissible, if they would be properly admitted from the books of a sole ecclesiastical corporation. On such a subject the rule must be the same, whether the corporation consists of one or many. (5) The books of a corporation cannot be admitted in any case, unless shown to have been regularly kept by the proper officer of the corporation. (e) On an information in the nature of a quo warranto, the prosecutor produced in evidence a book written by the prosecutor's clerk, not an officer of the corporation, which appeared to be only minutes of corporate acts done some years before, and was not kept as a public book of the corporation; this evidence was rejected at the trial, and, on a notion 37. (1) Lord Clanricard's case, Palm (2) 1 H. Black. 214, n. (c), Mayor of London v. Mayor of Lynn. In the case of the Mayor of Kingston-onHull v. Horner, Cowp 102, such evidence was received by consent; see 1 H. Bl. 214. (3) Maniage v. Lawrence, 3 Barn. & Ald. 142. Another case to illustrate the same principle is R. v. Debenham, 2 Barn. & Ald. 185. (4) Case of Gibbon, upon a quo warranto, 17 Howell's St. Tr. 810, 854. (5) Short v. Lee, 2 Jac. & Walk. 470, 476, 479. afterwards for a new trial, the Court held that it had been properly rejected. "Corporation-books," the Court said, "are generally allowed to be given in evidence, when they have been publicly kept as such, and when the entries have been made by the proper officer; not but that entries made by other persons may be good, if it be shown that the town-clerk is sick, or refuses to attend." (1) (ƒ) "A general history may be admitted," says Mr. Justice Buller, Histories. "to prove a matter relating to the kingdom at large." (2) Thus, in the case of St. Katharine's Hospital, Lord Hale allowed Speed's Chronicles to be evidence of a particular point of history in the time of Edward III. (3) And the same book was admitted as evidence of the death of Edward the Second's queen, in the case of Lord Brounker v. Sir R. Atkins, (4) where Ch. J. Pemberton said he knew not what better proof they could have. Histories, however, it is admitted, cannot be received as proof of a private right or particular custom. (5) Camden's Britannia was therefore rejected on an issue, whether by the custom of Droitwich, salt-pits could be sunk inny part of the town, or only in a cer⚫ tain place. (6) And in another case, where the question was, whether a particular abbey was of the inferior order, Dugdale's Monasticon was refused, because the original records might be had in the augmentation office. (6) So, it has been determined, that Dugdale's Baronage is not evidence to prove a descent. (7)(g) A question arose, on the impeachment of Warren Hastings, as to the competency of proving a national custom by a general history. The managers for the Commons wished to prove the customs in Hindostan, respecting the treatment of women of rank; and, for this purpose, proposed to read extracts from the History of the Growth and Decay of the Ottoman Empire, by (1) R. v. Mothersell, 1 Str. 92. 12 Vin. Abr. Evidence, (A. b. 15.) pl. 16. 17 Howell's St. Tr. 854. (2) Bull. N. P. 248. (3) 1 Vent. 151. Stainer v. Burgesses of Droitwich, 1 Salk. 282. Skin. 623, S. C. (4) Skin. 14. Cockman v. (5) Bull. N. P. 248. (f) See Note 802, p. 1159. (g) See Note 803, p. 1161. |