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the witnesses are unable to attend in person. If <
The proof of depositions is by an examined copy. Office copies are evidence in the court of Chancery, but not in courts of common law, for a reason before mentioned. (2)
Judgment in Judgments in the House of Lords are not formally drawn Lord" ,f uP» Dut niinutes only are entered on the journals. The
minutes of a judgment are the judgment itself; and they
may be proved by an examined copy. (3)
Proceeding! When the judgment of a court baron, or of any other tourts.n0r court of inferior jurisdiction, is offered in evidence, the proceedings on which it is founded ought to be shewn (4); but as the record is not usually made up in form, the minutes of their proceedings will be admitted (5), if they are perfect, and omit nothing material.
Probate of Testaments are proved in the ecclesiastical court either wills. in common form, or in form of law. The first mode of proof is, where the executor presents the will before the judge, without citing the parties interested, and deposes that it is the true and last will of the testator; upon which, the judge allows the will. The proof in form of law is, when the will is exhibited before the judge in presence of the parties interested, and after a full examination is finally allowed (6). If the will be proved in common form, it may
(i) Palmer*. Ld. Aylesbury,i5Ves. (4} See ante, p. 296. jun. 176. L'orbett v. Corbett, 1 Vet. (5) Fuher T.Lane, 2 Black. Rep.
fx Beam. 340. 834. Per Holt C. J. in R. v. Haim,
(1) See ante, p. 191. Comberb. 337.
(3) Jones v. Randall, Conrp.17. (6) 3 Bac. Ab. 40. tit.
be disputed at any time within thirty years; but if it be proved in the more formal mode, and there be no proceedings within the time limited for appeals, the will cannot afterwards be disputed (1). After proof of the will, the original is deposited in the registry of the ordinary or metropolitan, and a copy in parchment is made out under his seal, and delivered to the executor, together with a certificate of its having been proved before him, which copy and certificate are the probate.
It is not the practice in the ecclesiastical courts to grant a second probate, if the first should be lost, but only to grant an exemplification from the record of the court, and this exemplification will be evidence of the proof of the will (2). And an examined copy of the probate is evidence of the person there named being executor, as the probate is an original taken by authority, and of a public nature (3); but a copy of the will would not be evidence of that fact. (4)
The probate of a will, devising real property, is not evidence of the contents, in an action of ejectment, even to prove a relationship; for where the original is in being, the copy is not admissible; and, besides, the seal of the court does not prove it a true copy, unless the suit relate only to personal property (5). But the ledger-book, says Mr. Just. Buller, is evidence in such a case, because this is not considered merely as a copy, but is a roll of the court; and though the law does not allow these rolls to prove a devise of lands, yet when the, will is only to prove relationship* the rolls of the spiritual court, which has authority to enrol wills, are sufficient proof of such testament. And, under particular circumstances, the ledger-book may be evidence even in a devise of a real estate; as where, in an avowry
(1) 3 Bac. Ab. 40. tit. Executor. in R. V. Haynes, Skin. 584. See ante,
(a) Shepherd v. Shorthouse, I Str. p.145. 412. Bull. N. P. 146. (4) Bull N. P. 146.
(j) Hoe v. Nelthorp, 3 SaDc . 154; (5) lb. 1 Ld. Raym. 154. S. C. P«r Holt C. J.
for for a rent-charge, the avowant could not produce the will under which he claimed, that belonging to the devisee of the land, the ordinary's register of the will, and proof of former payments, were held to be sufficient evidence , against the plaintiff, who was devisee of the land charged. However, in such a case, notice ought to be given to the other party to produce the will. It has been often held, . that a copy of the ledger-book is not evidence; yet, since the original would be read as a roll of the court without further attestation, it seems fit, says Mr. Justice Buller, that the copy should also be read. The contrary practice, he adds, has been founded upon the mistaken supposition, that the ledger-book is read as a copy, when in fact it is read as a roll of the court. (1)
To prove that the probate of a will has been revoked, an entry of the revocation in a book of the prerogative court, in which all causes were entered by the register, and which was kept as the only record of such proceedings and of the decree of the court,' has been admitted to be good evidence. (2)
Letters of Administration is generally granted by writing under •dministra- seal. It may also be granted by entry in the registry without letters under seal (3). The ecclesiastical court never grants an exemplification of letters of administration, but only a certificate, that administration was granted; therefore, when a lessee pleads an assignment of a term from an administrator, such certificate is good evidence (4). And the original book of acts, directing letters of administration to be granted, with the surrogate's fiat for the same, is evidence of the title of the party, to whom administration of the intestate's effects is granted, without producing the letters of administration themselves, (notwithstanding subsequent letters of administration granted to another,) if the
(1) Bull N. P. a+6. (4) Kempton dem. BoyBeld v.Cross.
(1) Ramsbottom's case, I Leach Rep. temp. Hard. 108. Bull. N. P. Cr. C. 30, n. (c). 146. (3) Vin. Ab. Executor, D. p. 70.
first are not recalled; for, the original book was the authority for the proper officer to make out letters of administration, and the letters of administration were only the copy of the original minutes of the court, drawn up in a more formal manner (1). So an examined copy of the act-book, stating that administration was granted to the defendant at such a time, is proof of his being administrator in an action against him, without giving him notice to produce the letters of administration. (2)
In an action upon the judgment of a court of a foreign Foreign country, the sentence must be proved by proving the hand- iud^ment• writing of the judge of the court, who subscribed it, and the authenticity of the seal affixed. Thus, in a late case (3), the plaintiff, who sued here on a judgment obtained in the island of Grenada, was nonsuited, because he could not prove the seal affixed to be the seal of the island. And on a motion to set aside the nonsuit, the court said, they could not take official notice, that the seal affixed was the seal of the island, which was necessary to be shewn, in order to prove the judgment, which it purported to authenticate; and that proving the judge's hand-writing could not advance the proof of the seal, unless by considering him in the nature of a witness to it, which was not pretended.
The effect of an award has been before mentioned (4). Award. In an action upon an award, it will be necessary to prove both the submission and the execution of the award. And, in general, (whether the validity of the award comes into question directly, or only incidentally,) the submission of all the parties ought to be regularly proved. Thus, where there had been a deed of reference, between a creditor and several partners, of all copartnership accounts and of all matters in difference between the parties or any two of
(1) Elden v. Keddell, 8 East, 187. (z) Davis v. Williams, 13 East, 231. 16 East, 209. Gartett v. Lister, 1 Lev. Ray v. Cbik, ib. 238. n. (a). a5. Bull. N. P. 246. (3) Henry v. Adey, 3 East, tii.
(4) See ante, p. 179. 287.
them, and an action of trover was afterwards brought by the creditor, the assignee under a commission of bankruptcy of one of the partners, (in which action the plaintiff produced the award and deed of reference, as evidence of a separate debt due to him from the bankrupt,) the court of King's Bench held, that it was indispensably necessary to prove the execution of the deed by all the parties; for this was a reference of the aggregate accounts between all and each of the partners, and the consideration to each for entering into the submission was, that each party's account should be liquidated, not only as to one, but as to all; the accession of all therefore ought to be proved; and, without such proof, the arbitrator would not appear to have competent authority to decide the whole question between the parties. (i)
(i) AMram v. C'hace, 15 East, 109.
HE next species of evidence, which our subject lead* us to consider, relates to such public writings as are not judicial. In treating of this part of the subject, it will only be necessary to mention some of the principal documents of this description; after which, we shall proceed to enquire, how a party, who wishes to use public writings in evidence, may obtain an inspection.
Domesday- The most ancient public document in the kingdom ia book' Domesday-book, consisting of two volumes, kept in the receipt of the Exchequer. They contain a general survey of all the counties in England, excepting the four northern, and were compiled soon after the Conquest for the purpose of ascertaining the ancient demesne lends, which were the socage tenures first in the hands of Edward the Confessor,