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the gi ant was connected with any person who had an interest in the estate, (i)
A terrier is strong evidence against a parson; but it is never admitted for him, unless it be signed by a churchwarden, or (if the churchwardens are nominated by him,) by some of the substantial inhabitants of the parish (2). Terriers are generally signed by the minister of the parish ; but this does not appear to be essentially necessary. In a late case (3), on a bill, filed by a vicar p.gainst the impropriatrix of a rectory, for agistment tithe, a terrier was given in evidence, on the part of the vicar, signed only by the churchwardens; it was objected, first, that it was not a terrier, because made by the churchwardens alone, and not signed by the vicar; secondly, that 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 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 successor.
HeraWs The ancient books of the herald's office (4), and their visitation-books of counties (5), are evidence on a question of pedigree. The visitation-books contain the pedigrees and arms of the nobility of the kingdom from the twentyfirst year of Henry VIII. to the latter end of the seventeenth 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
(1) Swinnerton v. Marquis of Suf. (4) King dem. Lord Thanet v. Fcs
ford, jTaunt.or. ter, 2 Jon. 124.
(i) Bull. N. P. 14S. (5) Pitton v. Walter, 1 Str. Ml.
(3) lUingworih v. Leigh, 4 G will. Matthews v. Port, Comb. 63.
14 them 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. (1) From these visitation-books, entries were afterwards made into the books kept at the College of Heralds.
A licence from the Pope, granted in the reign of Ed- Pope's bull ward the Second, has been adjudged to be evidence of an impropriation, the Pope being formerly the supreme head of the church, and having the disposition of all spiritual benefices (2). For the same reason, a Pope's bull was formerly admitted in evidence, to shew that monastery lands had a special exemption from the payment of tithes. (3)
Corporation-books, containing an account of the pri- Corporavileges or public transactions of the body, are evidence in a oon books. 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 (4): and before they can be admitted in any case, it ought to be shewn that they have been regularly kept by the proper officer of the corporation. On an information in the nature of a quo warranto, th^ 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;
(1) S«e First Report of the House of (3) Lord Clanrirard's case, Palm. 37. Commons on the Public Records, p. 81. (4) 1 H. Black. 214. n. (c). Mayor Appendix, (c. &.) of London v. Mayor of Lyon.
(2) Cope v. Bedford, Palm. 417.
this evidence was rejected at the trial, and, on a motion 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 shewn that the townclerk ie sick, or refuses to attend."(1)
Histories. A general history may be admitted, says Mr. Just. Buller, to prove a matter relating to the kingdom at large (2). Thus, in the case of St . Katherine'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 in any part of the town, or only in a certain 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 augmentationoffice (7). So, it has been determined, that Dugdale's Baronage is not evidence to prove a descent. (8)
Proof of With regard to the proof of entries in public books, public books. ^'s now clearty settled, that wherever an original is of a public nature and admissible in evidence, an examined copy
(1) R. v. Mothersell, I Str. 91. (4) Skin. 14.
ia Vin. Abr. Evidence, (A. b. 15.) (5) BulL N. P. 148. Codonan T.
pi. 16. Mather, 1 BaYnard. 14.
(a) Bull. N. P. 848. (6) 1 Salk. a82. Skin. 613.
(3) 1 Vent. 151. Stainer v. Burgesses (7) lb.
of Droitwich. 1 Salk. a8z. Skin. 6l3. (8) Piercey's case, a Jon. 164.
will equally be admitted (i). The rule is necessary, as well for the security of the instrument, as for the convenience of the public. Examined copies, therefore, of entries in the Journals of the Lords or Commons (2), or of entries in the Bank books (3), or in the books of the East India Company (4), and examined copies of entries in parish registers, or in the books of assessments made by the commissioners of land tax (5), or in the books of the commissioners of excise (6), or in the court rolls of a manor (7), and in other cases of the same kind, have been admitted in evidence, when the original books themselves would have been admissible. But where an original is of a private nature, a copy will not be evidence, unless the original is lost, or destroyed, or in the possession of the opposite party. Thus, the copy of an old letter, brought from the chest of a corporation, has been refused (8). In one case, indeed, where the original was kept in the Bodleian library at Oxford, and by the statutes of the university not removeable, an examined copy was allowed to be given in evidence (9); the court admitted the case not to be within the general rules of evidence, but, under the particular circumstances, permitted the copy to be read.
(1) Per Holt C. J. in Lynch v. (6) Carth. 346. R. v. CommissionClerkc, 3 Salk. 153. R. v. Haines, ersof Land-tax, 2T. R. 234. Comberb.337. Skin.583. S.C. (7) Tuckyv.Flower,Combetb. 137.
(2) Jones v.Randal, Cowp. 17. R. R.v.Haines, ib. 337., per HoU C. J. v. Ld. O. Gordon, 1 Doug.593. Doe dem. Churchwardens of Croydon
(3) Marsh T. Colnet, 2Esp N.P.C. v. Cook, 5 £sp. N. P. C.22I. 665. Breton v. Coape, Peake N. P. C. (8) R. v. Gwyn, 1 Sir. 401. CHAP. VII.
On the Inspection of Public Writings.
Records. ^HE judicial records of the king's courts are safely kept for the public convenience, that any subject may have access to them for his necessary use and benefit; which was the ancient law of England, and is so declared by an act of parliament in the forty-sixth year of Edward the Third(1). Copy of in- Some restriction, however, of the general right of inspect4i«ment. j„g recor(ls has been thought necessary in the case of an acquittal on a prosecution for felony; in which case, if the trial is at the Old Bailey, a copy of the indictment cannot regularly be obtained without an order from the court; and it is a common practice, on the circuits, to apply to the court for a copy at the time of the trial. This practice appears to have been first adopted at the Old Bailey, in pursuance of an order made by some of the judges, for the regulation of those sessions in the twenty-sixth year of Charles II. (2) It was then ordered, "that no copies of any indictment for felony be given without special order, upon motion made in open court, at the general gaol delivery; for the late frequency of actions against prosecutors (which cannot be without copies of the indictment) dctcrrcth people from prosecuting for the king upon just occasions." And Lord Holt has laid it down as a general rule of law, that if a person be indicted for felony and acquitted, and means to bring an action (without sufficient cause), the judge will not permit him to have a copy of the record, and he cannot have a copy without leave (3). In the case of Vander
(O 3 Inst. 71. l'ref. to 3d Rep., right and title to a copy of the record,
p. 3, A. for »ny use which he may think fit to
(2) Directions for Justices at the make of it; and that, after a demand.
Old Bailey, prefixed to Kelyng's Rep. the proper officer might he punished (or
p. 3., order 7. See Brangam's case, refusing to mike out a copy.
CJ. is reported to have said, that, by Dr. Burwell and Others, ILd.Rayro.
the laws of the realm, every prisoner 253.