ance of certificates, kept by order of the Chancellor, and recognized by him as an official document, would be good secondary evidence of the allowance of a certificate; but a book containing such entries is not admissible, if it appear to be kept merely as the private memorandum of the clerks, without any authority or sanction from the Chancellor. (1)

In the above-cited case of the King v. Aickles, (2) the clerk of the papers of the prison produced a daily book, kept by him, containing entries of the names of all the debtors and criminals brought into prison, and of the times when they were discharged; but it appeared that these entries were not made by the clerk on his own knowledge of the facts, but generally from the information of the turnkeys, and frequently from the turnkey's indorsements on the *backs of the warrants, which warrants were afterwards regularly filed. Upon this, it was objected that the entries in the books were mere copies, and that the original minutes, from which the entry of the prisoner's discharge had been made, ought to be produced as the best evidence. But the court overruled the objection, and admitted the contents of the book, as it appeared to have been the constant and established practice of the keepers of public prisons to register the discharge of prisoners in such books as the one produced, and in the manner there described.

In another case, a parish register of christenings was received in evidence as an original authentic book, although the constant practice in the parish was to make a memorandum of the christenings in a day-book, from which entries were some time afterwards made into the register. (3) The question in that case was on the plaintiff's legitimacy, and on the part of the plaintiff, a general parish register was produced, in which there was an

(1) Henry v Leigh, 3 Campb. 499. 2) 1 Leach Cr. C. 436.

(3) May v May, 2 Str. 1072 Lee v

Meecock, 5 Esp. N. P. C. 177. See,
Hughes v Wilson, 1 Starkie, 179.

tourt.

entry of his christening, describing him in the same manner as legitimate children were usually entered. It appeared, that the practice was to make the entries in this register once in three weeks out of a day-book, in which entries were made immediately after the christening or the same morning; and in the case of illegitimate children, to insert in the entry the letters B. B. which were intended to signify "base born." The counsel for the defendant then offered in evidence the day-book, from which the other entry was posted, and in which the letters B. B. were inserted, insisting that it was the original entry. But a majority of the judges present on a trial at bar were of opinion, that such evidence ought not to be received, on the ground, that there could not be two registers in the parish, and that the one first produced ought to be taken to be the true register.-If, indeed, the entry in the day-book, representing the plaintiff as 315 illegitimate, had been signed by the reputed father or [333] the mother, or made under their direction, such evidence would have been admissible as the declaration of a deceased parent on a question of legitimacy; but if, on the other hand, in the absence of such proof the entry appeared to be merely a private memorandum, kept for the purpose of assisting the clerk to make up the register, (and of that nature it seems here to have been considered,) in that case it could not be received as the original authenticated entry.

Rolls of manor The rolls of a court baron (which is the court of the freeholders,) or of the customary court (which is the copyholders' court,) are evidence between the lord of the manor and his copyholders or tenants. They are the public documents, by which the inheritance of every tenant is preserved, and the records of the manor court, which was anciently a court of justice relating to all property within the manor.(1) So, ancient writings, not properly court rolls, but found among the court rolls, and de

(1) Gilb. Er. 67. 4 T. R. 670.

livered down from steward to steward, purporting to be made "assensu omnium tenentium," have been admitted as evidence to prove the course of descent within a manor; and this, although they were not signed by any of the tenants. (1) And an entry in the court rolls, stating the several customs within the manor as found by the homage, and regulating the descent of the several species of tenure, was in another case, (2) admitted to be good evidence of the mode of descent, although no instances were shewn of any tenant having in fact so taken under the custom. "It cannot be doubted," said Lord Kenyon, "that this evidence was admissible, for tradition and the received opinion are the lex loci. Here was full proof of a tradition respecting the custom of descent in this manor; it was the solemn opinion of twenty-four homagers; who are the constitutional judges of the court, delivered on an occasion when they were discussing the interests of all the tenants of the manor."

Upon the same principle, in an action by a copyholder against a freeholder of a manor for surcharging the common, (3) an old writing, found among the muniments of the manor, and purporting to be signed by many of the copyholders, stating that the commoners of the manor had an ancient unlimited right of common, but that they had agreed to a certain stint, was held admissible evidence of the reputation of the manor at that time, as to the general prescriptive right of common, against the limited right insisted on by the plaintiff; and although it was not proved that the instrument had been signed by a majority of the copyholders, or that the plaintiff held the copyhold tenement under any one of those who had signed, yet that circumstance could not affect the admissibility of the instrument, which was offered in evidence, not in the footing of an agreement,

* 316

[334]

(1) Denn dem. Goodwin v Spray, 1 T. B. 466. 473.

(2) Roe dem. Beebee v Parker, 5

T. R. 26. Roe dem. Bennett v Jeffery,
2 Maul. & Sel. 92.

(3) Chapman Cowlan, 13 East, 10.

Terriers.

* 317

(335)

but as evidence of tradition and the received opinion within the manor.

Terriers are of two kinds, temporal and ecclesiastical. It has been established by a variety of cases, that old terriers or surveys of a manor, are evidence of manorial tenures or boundaries. (1) And so, an ecclesiastical terrier is evidence of the possessions of a church, if it has been regularly made and preserved in the proper repos. itory. By the ecclesiastical canons, an inquiry is di rected to be made, from time to time, of the temporal rights of the clergyman in every parish, and to be returned into the registry of the bishop. This return, which is generally signed by the minister, is denominated a terrier, and derives its authority from being found either in the bishop's register office, (2) or the registry of the archdeacon of the diocese. (3) Unless it comes from one of these repositories, it cannot, in general, be admitted in evidence. A paper therefore, purporting to be a terrier, found in the charter-chest of a college, which had property in the parish, was thought to be inadmissible to disprove a modus. (4)

However, under particular circumstances, this rule has been relaxed, and a terrier has been admitted, though not brought from one of the regular repositories, when the custody in another place has been satisfactorily ex plained. Thus a terrier, found in the registry of the dean and chapter of Lichfield, was admitted to be evidence against one of the prebendaries. (5) This evidence was rejected at the trial; but a new trial was afterwards granted by the Court of King's Bench, on the ground, that the evidence ought to have been received, as there appeared to be a proper connection between the ter riers and the place, where it was found; and a strong corroborating circumstance was, that the terrier was

(1) Gilb. Ev. 69.

(2) Atkins v Hutton, 4 Gwill. 1406.
2 Anstr. 386. S. C. 4 Gwill. 1593.
(3) Potts v Durant, 4 Gwill. 1450,

found annexed to an old lease of prebend, of nearly the same date, (1) But when the custody is merely private and unconnected with the subject-matter, the courts have never gone the length of admitting such papers in evidence. An instrument, therefore, purporting to be an endowment, without the seal of the bishop, and another purporting to be an Inspeximus of the former under his seal, were rejected, because they came out of the hands of a private person entirely unconnected with the matters contained in them. (2) For the same reason, before ancient grants can be admitted as evidence of private rights, the custody, in which they have been kept, ought to be satisfactorily explained. In a late case, a grant to an abbey, contained in a manuscript entitled "Secretum Abbatis" in the Bodleian library at Oxford, was rejected, as not coming from the proper custody; (3) and, on the authority of this case, Mr. Justice Lawrence held, that an old grant to a priory, brought from the Cottonian manuscripts in the British Museum, could not be received, as it was not shewn that the possession of *the grant was connected with any person who had an interest in the estate (4)

* 318

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. (5) A terrier signed by inhabitants of the parish, is evidence on a question of a farm-modus, although the [336). persons signing are not shewn to have been occupiers of the farm.(6) Terriers are generally signed by the minister of the parish; but this does not appear to be essentially necessary. In a late case, (7) on a bill, filed by a

(1) 4 Gwill. 1453.

(2) Potts v Durant, 3 Gwill. 1450, (3) Michell v Rabbets, cited 3 Taunt. 91. See Bullen v Michel, cited (1.)

(4) Swinnerton v Marquis of Staf ford, 3 Taunt. 91. Earl. v Lewis, 4

Esp. N. P. C. 1.

(5) Bull. N P. 248. Earl v Lewis, 4 Esp. N. P. C. 3.

(6) Harria v Mittin, Exch. Tr. Term, 1815. MS.

(7) Illingworth v Leigh, 4) Cwill

1615.