Effect of Inquisitions, &c.

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Effect of Inquisitions, &c.

Although an inquisition taken before the coroner super visum corporis was formerly considered conclusive evidence of the fact found by it against the executors or administrators of the deceased; 3 Inst. 55; it is now held that everything done under it is traversable. Per Cur. in Garnett v. Ferrand, 6 B. & C. 611; 1 Wms. Saund. 362, et seq. (1).

An inquisition finding lunacy is evidence of it against third persons, though not conclusive. Sergeson v. Sealey, 2 Atk. 412; Faulder v. Silk, 3 Camp. 126; Frank v. Frank, 2 M. & Rob. 314, 315 n. So inquests of office duly taken under legal commissions (ante, p. 105) are evidence between third parties. Thus, inquisitions post-mortem are admissible evidence of the facts found by them. Rowe v. Brenton, 3 M. & Ry. 141, 142. An inquisition post-mortem reciting a conveyance in hæc verba is evidence of it for a party who claims title under it. Burridge v. Sussex, El. of, 2 Ld. Raym. 1292; Accord. per Parke, B., in Wood v. Morewood, Derby Sum. Ass. 1841. So an inquisition taken after the attainder of A. finding of what lands he was seised, are evidence of A.'s seisin as against strangers. Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. So, an extent of Crown lands in the Exchequer, taken in pursuance of 4 Edw. 1, stat. 1, is evidence of the matters returned in it; Rowe v. Brenton, 3 M. & Ry. 164; or an extent of lands purchased by the Crown of a subject purporting to be made by a steward of the Crown, and found in the land revenue office. Doe d. William 4 v. Roberts, 13 M. & W. 520. So, the returns of inquisitions taken by special commissions, temp. Edw. 1, called the Hundred Rolls. S. C. Id. 140. Old returns by a bishop to a writ out of the Exchequer, inquiring of presentations and vacancies of livings in his diocese, are evidence, even in favour of his successors. Irish Society v. Derry, Bp. of, 12 Cl. & Fin. 641. But a document, tempore Eliz., produced from the office of the duchy of Lancaster, purporting to be a survey of a duchy manor taken by the deputy surveyor-general by the oaths of 20 tenants of the manor whose names were subscribed, was held inadmissible evidence of the bounds of the manor, there being no proof of the authority under which the survey was taken, and, consequently, no ground for presuming that any such survey was in fact made. Evans v. Taylor, 7 Aå. & E. 617. If indeed the document had been generally accepted as a general presentment, it would have been evidence of reputation, semb. S. C. An inquisition under a commission from the Court of Exch. to inquire whether a prior or the Crown, after the dissolution of the priory, was seised of certain lands as parcel of a manor, was held to be admissible, but not conclusive, evidence of the facts stated in the return. Tooker v. Beaufort, Dk. of, 1 Burr. 146; Sayer, 297. So, the surveys of the church and Crown lands, taken by commissioners under the authority of Parliament during the Commonwealth, are admissible in evidence. Underhill v. Durham, 2 Gwill. 542; Rowe v. Brenton, 3 M. & Ry. 359. And other surveys taken by commissioners during the same period may be evidence of reputation, even though not taken by competent authority. Freeman v. Read, 4 B. & S. 178; 32 L. J., M. C. 226. A ́document purporting to be a survey of a manor while it was part of the possessions of the Duchy of Cornwall, and coming out of proper custody, is admissible as evidence of the boundaries and customs of the manor. Smith v. Brownlow, Ld., L. R., 9 Eq. 241.

But inquisitions or surveys made by private lords of manors are not evidence as such on behalf of those claiming under them. Thus a private survey, by direction of Oliver Cromwell, A.D. 1650, of lands granted to him

by the Parliament, in which commissioners named by him stated the substance of information received from presentments of the tenants as to manorial tolls and royalties, was not evidence either as reputation of tenants or a public document. Beaufort, Dk. of, v. Smith, 4 Exch. 450. So, a private survey was rejected on a question of parcel, or no parcel, of a lordship. Daniel v. Wilkin, 7 Exch. 429; 21 L. J., Ex. 236. So, where a manor formerly belonged to the Crown, an ancient grant, and survey of it recorded in the augmentation office, is not evidence for the tenants against their lord. Phillips v. Hudson, L. R., 2 Ch. 243.

The valor beneficiorum, or Pope Nicholas's taxation, is a document of the same nature as the above-mentioned public documents, and is admissible to prove the rate and value at which the persons employed in that taxation thought fit, at that time, to estimate ecclesiastical benefices. Bullen v. Michel, 2 Price, 477. But it is of no value to show whether tithes were then taken in kind, or by a modus. Short v. Lee, 2 J. & W. 486; 2 Eagle on Tithes, 409, 418. A new valor beneficiorum, was made, 26 Hen. 8, by virtue of commissions under the great seal, and the surveys under these commissions are admissible to prove the value of the first-fruits and tenths of ecclesiastical promotions at that period, though they are not conclusive. Drake v. Smyth, 5 Price, 377; Bullen v. Michel, 4 Dow, 324. A return to inquiries sent by the bishop upon the augmentation of a living by Queen Anne's bounty is in the nature of a public inquisition, and admissible. Carr v. Mostyn, 5 Exch. 69.

Domesday book, being a record compiled by the authority of the government and founded on official returns made temp. Will. 1, is admissible evidence of the tenure of land, &c.; and where a question arises whether a manor is terra regis" or ancient demesne, the trial is by inspection of Domesday. Gilb. Ev. 69.

Sheriffs', bailiffs', receivers', and other ministers' accounts of Crown lands, deposited in the public record offices (as the land revenue office or Exchequer), are evidence of the title of the Crown. Doe d. William 4. v. Roberts, 13 M. & W. 520, 523, 524. It has, indeed, been questioned whether they are admissible if the accountant be living. Ib. 524, n. But such accounts seem to stand on a different footing from ordinary accounts (ante, pp. 57, et seq.), which are not admissible unless the accountant is dead. They are rendered by officers of the Crown, and checked, audited, and enrolled or deposited among the public records, and their authority seems to be independent of the oral testimony of any officer, who, though he may be responsible to the Crown, would probably be personally unable to verify the details of his account.

On account of the interest of the Crown in the Duchy of Cornwall, records of acts affecting its possessions are considered as of a public nature; and on this ground a document, purporting to be a caption of seisin to the use of the first duke by persons assigned by the letters patent to take seisin, found in the Exchequer, and enumerating the possessions of which seisin was then given to the Black Prince, was admitted as evidence not only of seisin, but also of what things the prince had seisin. Rowe v. Brenton, 8 B. & C. 743 ; S. C., 3 M. & Ry. 156.

An inquisition by a sheriff's jury to ascertain the value of property for the information of the sheriff is not, as it seems, admissible evidence of property even against the sheriff; Latkow v. Eamer, 2 H. Bl. 437; nor is it evidence in his favour; Glossop v. Pole, 3 M. & S. 175; unless, perhaps, where the question is whether the sheriff has acted maliciously. Id.

An inquisition by a sheriff's jury to assess compensation to a landowner under the Lands Clauses Consolidation Act, 1845, s. 68, is conclusive as to

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the amount of, but not as to the right to, such compensation; R. v. L. & N. W. Ry. Co., 3 E. & B. 443 ; 23 L. J., Q. B. 185; Chapman v. Monmouthshire Ry. and Canal Co., 2 H. & N. 267; 27 L. J., Ex. 97; Read v. Victoria Station and Pimlico Ry. Co., 1 H. & C. 826; 32 L. J., Ex. 167; Ricket v. Metropolitan Ry. Co., L. R., 2 H. L. 175; and see Barber v. Nottingham and Grantham Ry. Co., 15 C. B., N. S. 726; 33 L. J., C. P. 193. If the jury give damages in respect of injury which does not entitle the claimant to compensation, their verdict is altogether bad. Re Penny, 7 E. & B. 660; 26 L. J., Q. B. 225. See Beckett v. Midland Ry. Co., L. R., 1 C. P. 241, 246.

Effect of Rules or Orders of Court.

The allegation of a fact in an order (formerly called a rule) nisi is not evidence of it for the party at whose suggestion it is obtained. Woodroffe v. Williams, 6 Taunt. 19. A rule, making a judge's order a rule of court, was evidence of the order. Still v. Halford, 4 Camp. 17. A rule purporting to be granted on the motion of a certain counsel, has been admitted as evidence of the attendance of that counsel in court at the date of the rule. Heath's case, 18 How. St. Tr. 176. An allegation in a count that defendant procured a defective security which was set aside by a rule of court was held not proved by merely producing the rule without other proof of the security. Compton v. Chandless, 4 Esp. 18.

Effect of Proceelings in Chancery.

Bill in Chancery.] Notwithstanding former opinions to the contrary, it is now settled that a bill in Chancery is not generally admissible in evidence, further than to show that such a bill did exist, and that certain facts were in issue between the parties. Doe d. Bowerman v. Sybourn, 7 T. R. 2, 3 ; Boileau v. Rutlin, 2 Exch. 665; Banbury Peerage case, 1 Selw. N. P. 13th ed. 677. The ground of this exclusion is that, together with statement of facts, a bill usually also contains allegations made with no other object than to obtain a discovery on the oath of the defendant. It is equally inadmissible as evidence, though read at the requisition of the opposite party; thus in a case in which the plaintiff gave in evidence the answer of defendant to a bill in equity filed by a third party, Tindal, C. J., ruled that although the defendant was entitled to have the bill also read as explanatory of the answer and as part of the plaintiff's case, the jury were not to consider the statements in the bill as evidence of the facts stated. Pennell v. Meyer, 2 M. & Rob. 98, ante, p. 107. So, where the lessor of the plaintiff in ejectment, upon a notice to quit signed by a receiver in Chancery, put in the bill and answer in the suit in which the receiver was appointed, for the purpose of proving the regularity of the appointment, the court held that a statement in the bill admitted in the answer, could not be read by the defendant for the purpose of showing that the legal estate was not in the lessor of the plaintiff. Parsons, Lessee of, v. Purcell, 12 Ir. L. R. 90. In an action of trespass to a several fishery brought by the lessee of a grantee, A., of the fishery, a bill and answer in a suit instituted long before by another grantee, B., against A., in which the limits of the fishery were described, were held admissible in evidence as part of the history of the fishery and of the claims to it. Malcolmson v. O'Dea, 10 H. L. C. 593.

Answer.] An answer in Chancery is good evidence against the defendant

as an admission on oath, and must all be taken together. Therefore, if upon exceptions taken a second answer has been put in, that also must be read. B. N. P. 237. But it has been said that where one party reads part of the answer of the other party in evidence, he makes the whole admissible only so far as to waive any objection to the competency of the testimony of the party making the answer, and he does not thereby admit, as evidence, facts which may happen to be stated in it by way of hearsay only; obiter per Chambre, J., Roe d. Pellatt v. Ferrars, 2 B. & P. 548; but see note, Id. ; and ante, p. 75.

An

The answer of a guardian is no evidence against an infant. B. N. P. 237. As to the answer of a trustee as against a cestui que trust, and conversely, see ante, pp. 64, 65. But an answer will be evidence against privies: thus, an answer in a suit for tithes instituted by a vicar against the owners of lands in the parish, in which answer the defendants declared the tithes to belong to the rector, will be evidence in an action for tithes by a succeeding rector against owners of the same lands. Dartmouth, Ly., v. Roberts, 16 East, 334. answer by one who has sold an advowson, filed after the conveyance, is not admissible against a party claiming under the grant. Gully v. Exeter, Bp. of, 5 Bing. 171. See cases, ante, p. 57. The answer of one defendant is not evidence against a co-defendant; Wych v. Meal, 3 P. Wms. 311; but after evidence has been given to connect two persons as partners, the answer of one will be evidence against the other; Grant v. Jackson, Peake, 203. See further tit. Admissions, ante, p. 68.

Decree or decretal order.] A decree in equity may be given in evidence between the same parties, or any claiming under them. B. N. P. 243. It is evidence, but not conclusive, against the defendant of every fact stated, whether by way of assertion or denial. Percival v. Caney, 4 De G. & S. 610. Where the parties to an action respectively sue and defend on behalf of themselves and a multitude of others in the same interest on each side, a decision in the action binds them all as to the general right claimed in the action, e.g., a right of common. Commissioners of Sewers v. Gellatly, 3 Ch. D. 610. A decree is even evidence as against parties not privy to it for some purposes; thus, on a trial touching the title to land, decrees between former litigants were admitted for the defendant to show how, and in what character, he came into possession under them, although the plaintiff did not claim under any party to the suits. Davies v. Lowndes, 1 N. C. 606; S. C. on error, 6 M. & Gr. 471. So it is evidence where hearsay is admissible thus a decree in favour of a public officer, founded on an issue, is evidence of the right to exercise the office; and by such evidence the deputy oyster-meters of London established their exclusive rights within the port of London. Laybourn v. Crisp, 4 M. & W. 320. And a decree for payment of tithe in kind in a suit by the incumbent against the occupiers of land who set up a district modus, is evidence, but not conclusive evidence, for him in an issue (under 6 & 7 Will. 4, c. 71) between him and the landowners to try a manorial modus. Croughton v. Blake, 12 M. & W. 205. In a suit for tithe by ecclesiastical impropriators, in which the defendant set up a district modus, the answer of the predecessors of the plaintiff in a suit to establish a farm modus, in which answer the defendants set up a district modus, was held evidence against them, although the suit was inter alios. Whelpdale v. Milburn, 5 Price, 485. A decree against the lord of a manor, establishing customs, is evidence against a succeeding lord. Price v. Woodhouse, 3 Exch. 616. Where a decree in a possessory suit brought by C. was inconsistent with a public right of fishing, the proceedings were, in an action brought, by C.'s successor in title against strangers, held to be evidence to negative such

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But an inter

right. Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. locutory order, made to quit possession pendente lite, is not evidence of reputation. Pim v. Curell, 6 M. & W. 234. The decree of an unauthorised court of equity is inadmissible either as an award (for want of submission) or as reputation. Rogers v. Wood, 2 B. & Ad. 245. See ante, p. 49. An order for an attachment for non-payment of the costs in a suit in equity is in itself prima facie evidence that a suit has been pending there. Blower v. Hollis, 1 Cr. & M. 393.

As to the effect of issues out of Chancery, see Robinson v. Duleep Singh, 11 Ch. D. 798, C. A.

The jurisdiction of the Court of Chancery was transferred by the J. Act, 1873, s. 16, to the High Court of Justice.

Effect of Depositions and Examinations in other Suits.

Though evidence must generally be given vivú voce on oath and in the very cause in which the witnesses are sworn, yet the testimony of witnesses so taken in another cause between the same parties, upon the same issue, is admitted where their personal attendance cannot be procured. Thus, where a witness was examined in a former action on the same point between the same parties, his testimony may be proved, if he is since dead; B. N. P. 242 ; or if he appears to be kept away by contrivance; Green v. Gatewick, ib. 243. It seems to be enough if the parties to the two actions are substantially though not nominally the same: as where the lessor of the plaintiff in the second was joined with other lessors in the first action. Wright v. Doe d. Tatham, 1 Ad. & E. 18, 19; Att.-Gen. v. Davison, M‘Cl. & Y. 60, Ex. Ch. So if the parties and the title in issue are the same, the evidence is admissible, though the land sought to be recovered is different. Doe d. Foster v. Derby, El. of, 1 Ad. & E. 791 n. But where the parties are neither the same, nor in privity with each other, such testimony is not admissible, though the title and one of the parties may be the same. S. C. id. 783; Morgan v. Nicholl, L. R., 2 C. P. 117. The admissibility of this evidence seems to turn rather on the right to cross-examine than upon the precise identity, either of the parties or the points in issue in the two proceedings. See 1 Taylor, Evidence, § 436, and cases there cited. The former testimony must be proved either by the judge's notes, or by the evidence of a person who can repeat the words of the witness. Evans v. Donisthorne, 1 Phill. Ev., Part 1, ch. 7, §7; Doncaster, Mayor of, v. Day, 3 Taunt. 262; Crease v Barrett, 1 Tyr. & Gr. 112. So, depositions in Chancery may be given in evidence in an action at law on the same matter between the same parties or their privies, where the witness is dead or cannot be found. B. N. P. 239 ; Llanover, Ly., v. Homfray, 19 Ch. D. 224, C. A. But they are not evidence of the facts contained in them against a person who does not claim under a party in the suit. B. N. P. 239. Where depositions were taken under a commission issued on a bill to perpetuate filed against the attorneygeneral on a petition of right, they were admitted as evidence against the Crown on the trial of a traverse of the inquisition taken on such petition. De Bode's case, 8 Q. B. 208.

In some cases such depositions are evidence even inter alios. Thus depositions relating to a question upon which hearsay would be good evidence, may be read against a person who was no party to the former suit. B. N. P. 239, ante, pp. 45, 49. So a deposition, taken in a cause between other parties will be admitted to be read, to contradict what the same witness swears at a trial; B. N. P. 240; and it will, of course, be evidence in any cause against the deponent himself. The deposition of a witness, taken to