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for though the chirographer is authorized to make out copies of the fine itself, he is not appointed to copy the proclamations. (1)
A verdict will not be admitted in evidence, without also Verdicts, producing a copy of the judgment founded upon it. The production of the postea alone is not sufficient; for it may happen that the judgment was arrested, or a new trial granted (2). But this rule will not apply to the case of a verdict on an issue directed out of Chancery, as it is not usual to enter up judgment in such a case; and here, therefore, the decree of the court must be shewn, which will be a sufficient proof, that the verdict was satisfactory, and stands in force (3). And though the nisi prius record, with the postea indorsed, is not evidence of the verdict, it is good and proper evidence that the cause came on to be tried 4). In the case, just cited, of Fisher v. Kitchingman, Willes C. J. doubted whether the associate was the proper person to produce the postea in evidence; because, by several rules of court, it ought to be returned into court to the proper officer within the four first days of the next term; but, on the prothonotaries informing the Court, that scarely one postea in a hundred was so returned, he was of opinion, that this objection was not of sufficient weight to set aside the verdict.
When a writ is only inducement to the action, the fact Wriu. of taking out the writ may be proved without a copy, because possibly the writ might not have been returned, and then it is not a record. But where the writ itself is the gist of the action, there ought to be a copy from the record, as the best proof of which the nature of the case is capable. (5)
(1) Gilb. Ev. */. Alien s case, Bull. (4) Pitton v. Walter, 1 Str. 161., cor. N. P. azo. 3 Taunt. 166. Pratt C. 1. Fisher v. Kitcbingham,
(i) Bull. N. P. 134. Fisher v. Kitch- Willes Rep. 368. ingham, Willes Rep. 367. (5) Gilb. Ev. 34. BulL N. P. i34.
(3) Momgomerie v. Clarke, at the Delegates, 1745, Bull, N. P. 234.
If an notion of trespass, for taking goods in execution, is brought by the party, against whom the writ of fieri facias issued, it will be sufficient for the officer to give the writ in evidence, without shewing a copy of the judgment. But if the plaintiff is not the party, against whom the suit issued, and claims the goods by a prior execution or sale, the officer, in order to prove the sale or the execution fraudulent, must produce not only the writ, but also a copy of the judgment. In the first case, he will justify himself, by proving that he took the goods in obedience to a writ issued against the plaintiff; but, in the other case, the goods do not prima facie belong to the party against whom the writ issued, and therefore the officer is not justified by the writ in taking them, unless he can bring the case within the statute 13 Eli2. c. 5. (against fraudulent alienations, &c.) for which purpose it will be necessary to shew a judgment. (1)
The return of the sheriff upon a writ, which has been duly returned and filed, is primd facie evidence of the fact there stated, when that fact comes incidentally into question. If the sheriff return a rescue, the court above, to which the return was made, would give it such credit, as to issue an attachment in the first instance; though, upon an indictment for a rescue, the defendant might shew, that the return was false (2). And so, in an action for maliciously suing out an alias fieri facias, after a sufficient execution under the first fieri facias, the Court of King's Bench held, that the sheriff's return annexed to the writs, (in which he stated, that he had forborne to sell under the first, and had sold under the second writ, by tl»e request and with the consent of the plaintiff,) had been properlv admitted at the trial as evidence of that fact, in support of a plea of licence pleaded by the defendant; for, as the Court said, faith ought to be given to the official act of
(1) Lake v. Billen, t Ld. Ray. 733 (1) R. v, Elltins, 4 Burr. mo. Martin v. Podger, a Black. Rep. 701.
a public officer, like the sheriff, even where third persona are concerned. (i)
It is enacted by statute 14 G. 2. c. 20. s. 4., (made for the Common purpose of protecting purchasers in cases, where recoveries have not been entered on record,) that where any person has purchased any estate, whereof a recovery was necessary to be suffered in order to complete the title, such person and all claiming under him, having been in possession of the purchased estate from the time of the purchase, may after the end of twenty years produce in evidence the deed. making a tenant to the writ of entry, or other writ for suffering a common recovery and declaring the uses, and the deed so produced (execution thereof being duly proved) shall in all courts be deemed good and sufficient evidence for the purchaser, and all claiming under him, that the recovery was duly suffered and perfected according to the purport of the deed, in case the record of recovery cannot be found, or should not appear to be regularly entered.
A decree in the court of Chancery may be proved by an Proceeding* exemplification under the seal of the court; or, by a sworn mCnani:erycopy; or, by a decretal order in paper, with proof of the bill and answer (2). But it has been held, that the bill and answer need not be proved, if they are recited in the decretal order (3). And it is said in a book of authority (4), "that, if a party wants to avail himself of the decree only, and not of the answer, the decree, under the seal of the court and enrolled, may be given in evidence, without producing the bill and answer, and the opposite party will be at liberty to shew, that the point in issue was not the same as the present issue." However, the rule, generally laid down, seems to be, that, where a party intends to avail
(1) Gyffbrd v. Woodgate, n Eatt, (3) Per Trevor C. J. in Wheeler v. 207. Lowth, cited Com. Dig. ib. 1 Kcb. 11,
(1) Trowel v. Cattle, 1 Keb. 21. cantra. Com. Dig. Ev. (C. 1.), p. 94. (4) BulL N. P. 135. citing Ld.Thanet
v. Patteraon, K. B. East. 12 G. 1.
U 4 himself,
himself of the contents of a decree, and not merely to prove an extrinsic collateral fact, (as, that a decree was made by the court,) he ought regularly to give in evidence the proceedings, upon which the decree is founded. "The whole record," says Ch. B. Comyns, "which concerns the matter in question, ought to be produced (1)." So, " a sentence in the admiralty court, may be evidence, upon the libel and answer produced; and a judgment in a court baron, or other interior court, with proof of the proceedings in which the judgment was given (2)." If, indeed, the fact to be shewn were merely, that a decree has been made in the court of Chancery, or that a decree, made there, has been reversed on appeal, proof of the previous proceedings will not be necessary. (3)
An answer cannot be regularly given in evidence without proof of the bill; for without the bill there does not appear to be a cause depending. But if there be proof by the proper officer, that the bill has been searched for in the office and cannot be found, the answer has been allowed to be read without a sight of the bill (4). As the defence in Chancery is upon oath, it will be presumed in ordinary cases, that the answer was sworn to by the defendant. And when an answer is offered in evidence as an admission of the party upon oath, it will be sufficiently proved by an examined copy; nor will it be necessary to shew, that there has been any decree in the suit (5). But stricter proof is required on a prosecution for perjury alleged to have been committed by the defendant in his answer. Some evidence of the administration of the oath will there be required; as, that a person, calling himself by the defendant's name, was sworn, and that the signature on the answer (which must be produced) is his hand-writing; or, that the answer is signed by the defendant, and that the jurat, purporting to
(1) Com. Dig. tit. EviJ. (A. 4.), (4) Gilb. Ev. 49.
, is) Lady Dartmouth v. Roberts,
(2) Com. I,v 1b. (C.I.), p. 94. 16 East, 334.
(3) See Jones v. Randall, Co» p. 17.
have been sworn before a master, is attested by the master's hand-writing (1). This strictness of proof is required, not only in criminal proceedings, as on a trial for perjury, but also in actions which are in the nature of a criminal proceeding, as in an action for a malicious prosecution. (2)
With regard to depositions, the general rule is that they Depositions are not to be admitted in evidence without proof of the bill and answer (3'; for, if there do not appear to be a cause depending, the depositions are considered to be mere voluntary affidavits; and the bill and answer ought to be produced, in order to shew, who were the parties to the suit, and what the points in issue, as depositions are evidence only upon the same points, and between the same parties, or those who claim under the parties. But if the defendant is in contempt, or has had an opportunity of cross-examining, which he chose to forego, the depositions may then be read, after proving the bill, although no answer has been put in. (4)
As the practice formerly was not to enroll the bill and answer, ancient depositions may be given in evidence without them (5). And where the court of Chancery, on directing a trial at law, makes an order, that the depositions of a witness shall be read, the proof of the bill and answer will be dispensed with. This order is never made for the purpose of making that admissible in evidence, which is not strictly admissible in courts of common law (6); and the depositions cannot be admitted, even under the order, unless it be satisfactorily proved at the time of the trial, that
(1) R. v. Morris, 2 Burr. 1189. R. had not been duly proved, nor inquired v. Benson, 2 Campb. 5o8. after. But it is said by the reporter,
(2) 16 East, 340. that the rejection of this evidence was
(3) Gilb. Ev. 56. Bull. N. P.24o- one of the grounds, upon which a new Nightingale v. Devisme, 5 Burr. 2594. trial was afterwards granted.
ad 6n. Baker v. Sweet, Bunh. 91. 11- (4) Cazcnove and Another v.