cases, except in the instance of a plea of auterfois acquit, &c. (m) When nul tiel record is not pleaded, but it is necessary to prove In other cases. a record in support of some allegation in the pleadings, the record may be proved either by an exemplification or a copy. Exemplifications are either under the great seal or under the seal of the court in which the record is produced, and are admissible without proof of the genuineness of the seal.(n) A record may also be proved by an examined copy, except upon the issue of nul tiel record. The copy must be proved by some witness who has examined it line for line with the original, or who has examined the copy while another read the original. (o) It ought to appear, that the record from which the copy was taken was seen in the hands of the proper officer, or in the proper place for the custody of such records. (p) So an office copy in the same court, in the same cause, is equivalent to a record; but in another court, or in another cause in the same court, the copy must be proved. (q) In order to prove a verdict, a copy of the whole record, including the judgment, is necessary, for otherwise it would not appear but that the judgment had been arrested, and a new trial granted. (r) Records properly produced in evidence are conclusive against Effect of rethose who are parties to them :-thus, a record of conviction of a dence. parish for not repairing a road, is for ever afterwards evidence of their liability to repair; (s) but it is not conclusive as against other parties, except as to the fact that the persons charged have been convicted,(t) therefore an accessory may controvert the guilt of his principal, notwithstanding the record of his conviction. (u) cords in evi In order to give evidence of a writ, if it is the gist of the pro- Proof of writ. ceeding, it must be proved by a copy of the record after its return: but where the writ is only inducement, the fact of taking out the writ may be proved without a copy, because possibly the : (m) Upon this plea, the proof of the issue lies on the defendant, and he will have to prove the record of acquittal and also it has been said, the averments of identity in his plea. 1 Arch. Cr. Pl. 56. But this seems doubtful, for if the replication is nul tiel record, it should seem to admit the identity. The principal decisions regarding the plea of auterfois acquit, belonging rather to the law of criminal pleading than of evidence, will be found ante, p. 38, 370, 544. See also Rex v. Sheen, 2 Carr & P. 634., from which it appears, that if the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment. (n) Rosc. Ev. 44. Tooker v. Duke of Beaufort, Sayer 297. (0) Reid v. Margison, 1 Campb. 469. It is not necessary for the persons examining to exchange papers, VOL. II. (4) Rosc. Ev. 44. Nerot, 1 Carr & P. 578. Burnand v. But the nisi (r) Bull. N. P. 236. (s) Rex v. St. Pancras, Peake N. P. (t) See Rex v. Shaw and Others, Russ. & Ry. C. C. R. 526., where, upon an indictment for delivering instruments to a prisoner to facilitate his escape from gaol, it was held that the record of his conviction being produced by the proper officer, no evidence was admissible to dispute what it stated. 3 A (u) Rex v. Smith, 1 Leach 288. courts of equity. Proceedings in writ has not been returned, and then it is no record. (x) An answer in Chancery is proved by the production of the bill and answer, or of examined copies of them; (y) but on proof by the proper officer that the bill has been searched for in the office, and not found, the answer may be read without the bill.(z) Depositions in a suit in Chancery are not in general admissible without proof of the bill and answer, unless so ancient that no bill or answer can be found ; (a) but an examined copy is admissible for the purpose of contradicting the testimony of the deponent when Proceedings in produced afterwards as a witness. (b) The proceedings in the the ecclesiastical courts. Probate. ecclesiastical courts are proved in the same way as those in equity and their sentences are received in the temporal courts as conclusive evidence of the fact adjudged, upon questions within their jurisdiction: but in a suit of jactitation of marriage, a sentence against the marriage is not conclusive, as it decides not directly, but only collaterally, on the validity of the marriage. (c) Proof of will. When it is necessary to shew a title to personalty under a will, or that a particular person is executor, the will cannot be read in evidence without some indorsement for the purpose of authentication; but the probate must be produced. (d) The seal of the ecclesiastical court on the probate proves itself. (e) Generally speaking, a probate unrepealed is conclusive evidence of the va lidity of the will; but on an indictment for forging a will, probate of that will unrepealed is not conclusive evidence of its validity, so as to be a bar to the prosecution. (f) To prove a probate revoked, an entry of the revocation in the book of the ecclesiastical court called the assignation book,' in which all causes are officially entered, is good evidence. (g) Administration is proved by the production of the letters of administration, or a certificate or exemplification thereof, granted by the ecclesiastical court, (h) or by the original book of acts, directing the grant of letters, or an examined copy of it.(i) Proof of administration. Judgments of Judgments in a court-baron, county-court, or other inferior court, inferiorcourts. may be proved by the production of the book containing the proceedings of the court from the proper custody, and if not made up in form, the minutes of the proceedings will be evidence, or an exa (x) 1 Phil. Ev. 370. (y) The recital in the jurat of the place where the answer purports to be sworn, is sufficient proof that the oath was administered at the place sworn. Rex v. Spencer, Ry. & Mood. N. P. C. 97. (2) Gilb. Ev. 49. See as to the proof of the identity of the parties, ante, p. 549. An answer offered in evidence merely as an admission of the party on oath, is sufficiently proved by an examined copy, without proof of a decree, or the party's handwriting. Lady Dartmouth v. Roberts, 16 East. 334. Rosc. Ev. 47. See also Ewer v. Ambrose, 4 B. & C. 25. (a) Bull. N. P. 240. Gilb. Ev. 62. Rosc. Ev. 47. (b) Highfield v. Peake, Mood. & Malk. N. P. C. 109. (c) Duchess of Kingston's case, 11 St. Tr. 262. Ante, Vol. I. 190. (d) Rex v. Barnes, 1 Stark. N. P. C. 243. (e) Kempton v. Cross, Cas, Temp. Hardw. 10s. Rosc. Ev. 48. (f) Rex v. Buttery and Macnamara, Russ, & Ry. C. C. R. 342. (g) Rex v. Ramsbottom, 1 Leach 25. in note to Rhodes's case. (h) Kempton v. Cross, Cas. Temp. Hardw. 108. Rosc. Ev. 48. (i) Elden v. Keddel, 8 East. 187. Davis v. Williams, 13 East. 232. mined copy of such proceedings or minutes will be evidence. (a) The judgment of a foreign court must be proved by evidence of Foreign judgthe handwriting of the judge of the court who subscribed it, and ment. the authenticity of the seal affixed. In the case of Henry v. Adey, (b) 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 handwriting could not advance the proof of the seal, unless by considering him in the nature of a witness to it, which was not pretended. (c) If a colonial court possess a seal, it ought to be used for the purpose of authenticating its judgments, although it may be so much worn as no longer to make any impression. (d) If it is clearly proved, that the Court has not any seal, so that the document cannot be clothed with the form of a legal exemplification, it must be shewn to possess some other requisite to entitle it to credit; as, by proving the signature of the Judge upon the judgment. (e) An exemplification of a foreign judgment, that is, a copy authenticated under the seal of the court, is evidence of the judgment in the courts of this county:(f) but a document, purporting to be a copy of a judgment, made by the officer of the Court, is not admissible.(g) The written law of a foreign state Proof of fomust be proved by a copy duly authenticated. (h) Thus, when to reign laws. prove the law of France, as to marriage, the French vice-consul produced a book, which he said contained the code of laws upon which he acted at his office; that it was printed at the office for the printing of the laws of France; and that it would have been acted upon in any of the French courts; it was ruled by Abbott, C. J., to be sufficient proof of the law. (i) The unwritten law of a foreign state may be proved by the parol evidence of witnesses possessing professional skill. (j) So a person of experience in the profession of the law of another country may state his opinion, what, according to the law of that country, would be the legal effect of the facts previously spoken to by the witnesses, taking the facts to be accurate. Thus a gentleman at the Scotch bar has been (b) 3 East. 221. 1 Phil. Ev. 379. See also Buchanan v. Rucker, 1 Campb. 63. Flindt v. Atkins, 3 Campb. 215. in a note. (c) The statute 6 Geo. 4. c. 133. s. 7. enacting that the common seal of the society of apothecaries of the city of London shall be received as sufficient proof of the authenticity of the certificate, to which such seal is affixed, does not make such certificate evidence without proof that the seal affixed is the genuine seal of the society, Chadwick v. Bunning, Ry. (d) Cavan v. Stewart, 1 Stark. N. P. (e) Alves v. Bunbury, 4 Campb. 28. 1 Phil. Ev. 379. (f) Black v. Lord Braybrook, 2 Stark. N. P. C. 11, 12. (g) Appleton v. Lord Braybrook, 2 Stark. N. P. C. 6, 7. 1 Phil. Ev. 380. (h) Clegg v. Levy, 3 Campb. 166. Rosc. Ev. 48. (i) Lacon v. Higgins, 3 Stark. 178. (j) Per Gibbs, C. J., Miller v. Kenrick, 4 Campb. 155. Rosc. Ev. 48. Irish judg ment. the peace. Public books. allowed to state his opinion, whether a marriage, as proved by the witnesses, would be valid according to the Scotch law. (k) A judgment obtained in one of the superior courts in Ireland, since the Conviction be- Union, is not a record in England. (1) Convictions before justices fore justices of of the peace are proved by examined copies, which the clerk of the peace of the proper county will make out, upon an application for that purpose.(m) In many instances, public books are admitted in evidence to prove the facts recorded in them. The muster-book in the navy-office, has been admitted in evidence, to prove the death of a sailor; (2) the book from the master's office in the Court of King's Bench, to prove a person one of the attorney of that Court; (0) and the log-book of a man of war, which convoyed a fleet, to prove the time of the convoy's sailing.(p) Bank books are good evidence to prove the transfer of stock ;(9) and on a prosecution for a libel published concerning a person in his office of treasurer of a parish, an entry in a vestry-book, stating that he was elected at a vestry duly held in pursuance of notice, has been considered sufficient evidence, to support an allegation in the indictment, that he was duly elected treasurer. (r) The day-book of a public prison, containing a narrative of the transactions of the prison, has been received upon the same principle, as proof of the time of a prisoner's commitment or discharge :(s) but it would not be admissible to prove the cause of his commitment.(t) So on an indictment for forging a seaman's will, an entry in a book called the assignation book, in which all causes are officially entered, was admitted to prove the probate revoked.(u) So the poll-books taken at an election for members of parliament, or at an election of a mayor, are evidence. (v) The registers of christenings, marriages, and burials, preserved in churches, are good evidence:(w) and in order to prove the register of a marriage, it is not necessary to call the attesting witnesses; but as the register affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling the minister, clerk, or attesting witnesses, if they were acquainted with the parties; or the bell-ringers may be called to prove that they rung the bells, and came immediately after the marriage, and were paid by the parties; or the landwriting of the parties may be proved; or persons may be called who were present at the wedding dinner, Proof of public &c.(x) Whenever an original is of a public nature, and admisbooks by examined copies. Registers. (k) Rex v. Wakefield and others, Murray ed. p. 238. (7) Harris v. Saunders, 4 B. & C. 411. (m) Archb. Cr. P. C. 83. (n) Bull. N. P. 249. Rhodes's case, 1 Leach 24. (0) Rex v. Cropley, 2 Esp. N. P. C. 524. (p) D'Israeli v. Jowett, 1 Esp. N. P. C. 427. (q) Breton v. Cope, Peake. N. P. C. 30. Marsh v. Colnet, 2 Esp. N. P. C. 665. (r) Rex v. Martin, 2 Campb. 100. (8) Rex v. Aickles, 1 Leach 391. (t) Salte and others v. Thomas, 3 B. & P. 188. 1 Phil. Ev. 395. (u) Ramsbottom's case, 1 Leach 25. in note. It would have been no bar to the conviction had the probate been unrepealed. Rex v. Buttery and another, Russ. & Ry. C. C. R. 342. (v) Mead v. Robinson, Willes. 224. (w) Bull. N. P. 247. (x) Birt v. Barlow, Dougl. 162. Rosc. Ev. 50. sible in evidence, an examined copy is also admissible. (y) Thus, examined copies of the entries in the council-book, or of a licence preserved in the secretary of state's office, (2) of entries in the Bank books, (a) of entries in the books of the East India Company, (b) or in the books of the commissioners of the land-tax, (c) or of excise, (d) are allowed to be read in evidence. So an examined copy of a parish register is evidence:(e) but not an examined copy of the register of a marriage in the Swedish ambassador's chapel in Paris. (f) It seems, however, that the books of the King's Bench or Fleet prisons, which, as it has been just mentioned, are evidence of the time of a prisoner's discharge, are not such public documents, that a copy of them may be given in evidence.(g) dictment after In case of fe lonies. The judicial records of the King's Court are safely kept for Inspection of public convenience, that any subject may have access to them for records. his necessary use and benefit; which was the ancient law of England, and is so declared by an act of parliament in the 46th year of Edward III. (4) But in the case of an acquittal on a prosecu- Copy of intion for felony, a copy of the indictment cannot be regularly ob- acquittal, how tained without an order from the Court. This rule proceeds from obtained. an anxiety to protect prosecutors from being harassed by unfounded actions for malicious prosecutions, which actions cannot be maintained without proving the fact of the prosecution by the record or an examined copy of it; and it is therefore not usual to grant a copy of the record of acquittal, where there is any the least probable cause for the prosecution. (i) But the copy is admissible without proof of the order of the Court allowing a copy of the record; for though it be the duty of the officer, charged with the custody of the records of the Court not to produce a record, or give a copy of it but upon competent authority, yet if the officer, in neglect of his duty, shall have given a copy, or produces the original, the evidence in itself is unobjectionable, and must be received. (7) The rule is confined to cases of felony: In cases of in prosecutions for misdemeanors, the defendant is entitled to a misdemeanor. copy of the record, as a matter of right, without a previous application to the Court.(k) A defendant on a criminal charge is Inspection of not entitled to an inspection of the grounds upon which the pro- depositions. secution is instituted; (7) and, therefore, neither in cases of treason (a) Marsh v. Colnett, 2 Esp. 665. (c) Rex v. King, 2 T. R. 234. (f) Leader v. Barry, 1 Esp. 353. (h) 1 Phil. Ev. 405. (1) Tidd. 647. In the case of Van dercomb and Abbott, 2 Leach 708. (j) Legatt v. Tollervey, 14 East. 302. |