Heralds' bocks. * 319 vicar against 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, 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. The ancient books of the heralds' office, (1) and their visitation-books of counties, (2) are evidence on a question of pedigree. The visitation-books contain the pedigrees and arms of the nobility of the kingdom from the twenty-first year of Henry VIII. to the latter end of the seventeenth century, during which period the two provincial kings of arms, soon after ther investiture in office. usually received a commission under the great seal, anthorizing them to visit the several counties within theit 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 honor or dignity." The first of these commissions was issued in the twenty-first year of Henry VIII. and the last in the (1) King dem. Lord Thanet v Foster, 2 Jon. 224. (2) Pitton v Walter, 1 Str. 161. Matthews v Port, Comb. 08. 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 priv ileges or public transactions of the body, are evidence in a 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) (a) 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, the 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; *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, (1) See First Report of the House of Commons on the Public Records, p. 82. Appendix, (c. 8.) 37. (2) Cope v Bedford, Palm. 427. (4) H. Black. 214. n. (e) Mayor of London v Mayor of Lynn. In the case of the Mayor of Kingston-on-Hull v Horner, Cowp. 102., such evidence was received, but by consent. See 1 H. Bl. 214. Corporation books. * 320 (a) So, they are not evidence in favour of a person claiming under the corpora tion. Jackson d. Dennally & others, v Walsh 3 Jokna. Rep. 226. Hists ries. 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 town-clerk is sick, or refuses to attend. (1) (e) A general history inay be admitted, says Mr. Justice Buller, to prove a matter relating to the kingdom at [338] large. (2) Thus in the case of St. Katharine'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. Penberton said, he knew not what better proof they could have. Histories, however, it is admitted, cannot be re ceived 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 augmentation-office. (6) So, it has been determined, that Dugdale's Baronage is not evidence to prove a descent. (7) (b) (1) R. v Mothersell, I Str. 92. 12 Vin. Abr. Evidence, (A. b. 15 ) pl. 16. (2) Bull. N. P. 248. (3) 1 Vent. 151. Stainer v Burgesses of Droitwich, 1 Salk. 282. Sin. 625. S. C. (4) Skin. 14. (5) Bull. N. P. 243. Cockman v Mather, Barnardist. 14. (6) 1 Salk. 282. Skin. (23. (a) Acc. Highland Turnpike Company v. M'Kean, 10 Johns. Rep. 154; is which case it was held that it was not enough to prove the book to be in the handwriting of a person stated in the book itself, to be the secretary; but not otherwise shown to be the proper officer. (b) No collection of bistory, compiled by an individual, can be admitted in evidence, aliter if it be shown to be an official document. Harward v Billington, 4 Price Er. Rep. 427. *321 13391 With regard to the proof of entries in public books, Proof of entry in public it is now clearly settled, that wherever an original is of books. a public nature and admissible in evidence, an examined copy will equally be admitted. (1) This 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 the entries in the Council-book in the Secretary of State's office, (3) or of entries in the Bank books, (4) or in the books of the East-India Company, (5) and examined copies of entries in parish register's, (a) or in the books of assessments made by the commissioners of land-tax, (6) or in the books of the commissioners of excise, (7) or in the court rolls of a manor, (8) or in poll-books of an election of Mayor or Member of Parliament, (9) and examined copies in other cases of the same kind, have been admitted in evidence, when the original books themselves would have been admissible. (b) 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. (10) In one case, indeed, where the original was kept in the Bodleian library at Oxford, and by the stat (1) Holt C. J. in Lynch v Clerke, 3 Salk. 153. R. v Haines, Comberb. 337. Skio. 583. S. G. (2) Jones v Randal, Cowp. 17. R. v Ld. G. Gordon, 2 Doug. 593. (5) Eyre v Palsgrave, 2 Camph. 606. (4) Marsh v Colnet, 2 Esp. N. P. C. Cf. Breton v Coape, Peake N. P. C. 30. (5) 2 Doug. 593. n. (3) (9) R. v King and others, 2 T. R. (a) Jackson d. Miner v Boncham, 15 Johns. Rep. 226. (b) Vide ante, 323. in uotis. A copy of an entry in a book kept by a corporation, is not authenticated by the seal of the corporation; an examined copy must be produced. Stoever v Lessee of Whitman, & Binney 416. Et vide The Pres. Direc. & Co. of the Hollowel and Augusta Bank v Hamlin et al. 14 Mass. 178. utes of the university not removeable, an examined copy was allowed to be given in evidence; (1) 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. (a) * 322 Records. *CHAP. VII. Of the Inspection of Public Writings. THE 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.(2) (1) Downes v Moreman, 2 Gwill. 659. Bunb. 189. S. C. 4. (2) 3 lus. 71. Pref to 3d. Rep p. 3, (a) It may not be improper, in this place, to take notice of a species of writings, which fall more strictly under the division of public writings, not judicial, than under any other head, that is, the official acts of public notaries. Although there may be cases in which the certificate of a notary will be admitted for the purpose of authenticating the judgment of a foreign prize court; (Vide ante, 319. n.) yet his certificate is, in general, evidence for no purpose whatever, except in relation to foreign bills of exchange; in respect of which the non-payment or non-acceptance by the drawee can be proved by no other evidence than the protest; which protest proves itself without further evidence. Peake's Ev. 74. n. 221. Chitty on Bills, 290. But where an action was brought in England on a foreign bill of exchange drawn upon a person residing in that country, it was held that a protest was not evidence, and that the presentment should be proved in the same manner as if it were an inland bill, or promissory note. Chesmer v Noyes, 4 Campb. 129. Nor in an action on a policy of insurance, or in any other case is the master's protest evidence to prove the loss or other point in issue; but it is admissible to contradict the evidence which the captain who made it may have given at the trial. And its being shown by the insurance broker to an underwriter, as containing an account of the loss for which the insured claimed, will not make it evidence even against the insured whose broker thus produced it. Christian v Coombe, 2 Esp. Rep. 490. Senat v Porter, 7 Term Rep. 158. Marsh. on Insurance, 716. Scriba v Ins. Co. N. A. C. C. U. S. P. Condy's Marsh. 716. a. Hempstead v Bird, 1 Day 91. Miller v Ireland, Tayl. 308. Marine Ins. Co. qt ́ |