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PART THE SECOND.
ON WRITTEN EVIDENCE.
ry HE preceding chapters having treated of the competency of witnesses, and of parol or unwritten evidence, it is now proposed to inquire into the several kinds of written evidence.
Writings are either public or private. Some public writings are of record; others, not of record. And public writings, not of record, may be distinguished into such as are of a judicial character, and such as are of a public nature, but not judicial. In this order it is proposed to treat of the several kinds of written evidence; and to consider, first, in what cases they are admissible; and, secondly, if admitted, how they ought to be proved.
J^ECORDS are the memorials of the legislature, and of the King's courts of justice; and they are considered of such authority, that no evidence is allowed to contradict them (i). 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). So, where the declaration stated that a precept issued, directed to the mayor of a borough,
(1) Co. Lit. 117.1,.260.a. Gilb. (1) Reed v. Jackson, i East, 155. Ev. 5. Bull N. P. Mi.
and, and, on producing the precept, it appeared to have been written, thus, " to the mayor and commonalty" but the two latter words had been struck through with a pen, the Court refused to admit evidence, that those words had not been obliterated, when the precept was delivered and returned (1). An officer, who has the care and custody of records, may be examined as to their condition, though he cannot be examined as to their matter or contents (2).
A record, then, is conclusive proof, that the decision or udgment of the Court was, as is there stated: and evidence to contradict it, will not be admitted. But it will not be conclusive as to the truth of allegations, which were not material nor traversable (3). 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 (4}. 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 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 (5). But if the jury find specially the precise day, all parties are concluded. (6)
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 offi
(1) Dickson v. Fisher, 4 Burr. 1167 1 U) Com. Dig. lit. Estoppel,E.6. |B'ack.664,S.C. (5) Ives's cue, 3 Inst. a5o. Gilh.
(a) l.eighton v. Leithtod, 1 Sir, 210. Ev. 130.
cert cers in general, or all spiritual persons, or all traders, &c . are public laws. But such as relate to tbe nobility only, or to spiritual lords, or to particular officers or particular trades, are private acts(1). 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 tables prefixed to the respective collections. (2)
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 and pleaded (3). 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 recognized by some public act of the legislature. Thus, the statute 23 H. 6. c. 9., relative to sheriffs' bonds, (even supposing it to be a private act, as relating only to officers of a certain description,) must now be taken notice of judicially, because the statute 4 & 5 Ann. c. 16. s. 20. enables the sheriff to assign the bond. (4)
In many cases a defendant will be precluded, by the nature of the pleadings, from taking advantage of a public 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 13EUZ. o. 8. 8,4.(5), 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 (6). In an
(1) Gilb. Ev. 39, 40. (4) Saxby v. Kitkus, Bull. N. P. 214.
(2) See preface to new edit, of Sta- Samuel v. Evans, IT. R.575. tutes at large. (5) See alao ,2 Ann. St. a. e. 16.
(j) Bull N.P. Ml, (6) Cera.Dig. tit. Pleader, a W.23. 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 (1), or founded on an illegal consideration which makes the contract void. (2)
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 (3). 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 (4). 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. 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. (5)
(1) Ld. Bernard v Saul, I Str. 498. (4) Gaul's case, 1 Salk. 372. Hicks'*
Bull. N. P. 15a. S. C. rue, ib. Per Lord Mansfield in 4 Burr.
(1) Adm. per Cur. in Huscey v. 2467. Bull. N. P. 196. French q.t.
Jacob, 1 Ld. Ray. 89. v. Coion, 2 Str. 1081; more fully stated]
(3) 2 Roll. Ab. 683. pL 13. Bull in zSelw. N. P. 561. n. (117.) N. P. 425. (5) 4 Burr. 2469. Bull. N. P. 225. CHAP. II.
On Verdicts, and Judgments of Courts of Record.
T N 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.
Of Verdicts and Judgments, with reference to the Parties in
It is a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person, who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. Hence the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding a fact, or the judgment of the court on facts found, although evidence against the parties and all claiming under them, are not, in general, to be used to the prejudice of strangers (i). To this general rule there are some ex
(i) Judgment of De Grey C.J. in DucheM of Kingstoa's cas?, II State
T s. 261.