Eliz. c. 5. (ag, or by a decretal order in paper, with purpose it bill and answer.(1) But it has been held, oill and answer need not be proved, if they are Thin the decretal order. (2) And it is said in a book dauthority,(3) "that, if a party wants to avail himself of the decree only, and not of the answer, the decree, under the seal of the court and enrolled, may be given in evidence, without producing the bill and answer, and the opposite party will be at liberty to shew, that the point in issue was not the same as the present issue." However, the rule, generally laid down, seems to be, * 296 that, where a party intends to avail himself of the con tents of a decree, and not merely to prove an extrinsic collateral fact, (as that a decree was made by the court,) be ought regularly to give in evidence the proceedings upon which the decree is founded. "The whole record," says Ch. B. Comyns, "which concerns the mat. ter in question, ought to be produced."(4) So, "a sen- tence in the Admiralty Court may be evidence, upon the libel and answer produced; and a judgment in a court baron, or other inferior court, with proof of the proceedings in which the judgment was given." (5) - If, indeed, the fact to be shewn were merely that a decree has been made in the Court of Chancery, or that a decree, made there, has been reversed on appeal, proof of the previous proceedings will not be necessary.(6) An answer cannot be regularly given in evidence without proof of the bill; for without the bill, there does not appear to be a cause depending. But if there be proof by the proper officer, that the bill has been searched for in the office and cannot be found, the answer has been allowed to be read without a sight of the bill. (7) As the defence in Chancery is upon oath, it will be pre (1) Trowel Castle, 1 Keb. 21. Com. Dig. Ev. (C. 1.) p. 94. (2) By Trevor, C. J. in Wheeler v Lowth, cited Com. Dig. ib. 1 Keb. 21. contra. (3) Bull. N. P. 235, citing Lord Tha 35. net v Paterson, K. B. East, 12 G. 2. 315 sumed in ordinary cases, that the answer was sworn to by the defendant. And when an answer is offered in evidence as an admission of the party upon oath, it will be sufficiently proved by an examined copy; (1) nor will it be necessary to shew, that there has been any decrec in the suit. (2) But stricter proof is required on a prosecution for perjury alleged to have been committed by the defendant in his answer. Some evidence of the administration of the oath will there be required; as, that a person, calling himself by the defendant's name, was sworn, and that the signature on the answer (which must be produced) is his hand-writing; or, that the answer is signed by the defendant, and that the jurat, parporting to have been sworn before a master, is attest* 297 ed by the master's hand-writing. (3) This strictness of* proof is required, not only in criminal proceedings, as on a trial for perjury, but also in actions which are in the nature of a criminal proceeding, as in an action for a malicious prosecution. (4) With regard to depositions, the general rule is that Depositions. they are not to be admitted in evidence without proof of the bill and answer; (5) for, if there do not appear to be a cause depending, the depositions are considered to be mere voluntary affidavits; and the bill and answer ought to be produced, in order to shew, who were the parties to the suit, and what the points in issue, as depositions are evidence only upon the same points and between the same parties, or those who claim under the parties. But if the defendant is in contempt, or has had an opportunity of cross-examining, which he chose to forego, the depositions may then be read, after prov ing the bill, although no answer has been put in. (1) Depositions are evidence, as an admission, against a party to the suit-or for the purpose of contradicting a witness-without proof of the bill and answer: but some proof of the identity of the person will be necessary." As the practice formerly was not to enroll the bill and answer, ancient depositions may be given in evidence without them. (2) And where the Court of Chancery, on directing a trial at law, makes an order, that the depositions of a witness shall be read, the proof of the bill and answer will be dispensed with. This order is not made for the purpose of making that admissible in evidence, which is not strictly admissible in courts of common law; (3) and the depositions cannot be admitted, even under the order, unless it be satisfactorily * 298 proved at the time of the trial, that *the witnesses are unable to attend in person. If depositions were offered in evidence without such an order, the whole record, bill, answer, &c. must be regularly proved; but when there is an order for reading depositions, the court of law will read them, without going through the regular and strict course, which is generally necessary for the purpose of making them evidence. (4) Judgment in The proof of depositions is by an examined copy. Office copies are evidence in the Court of Chancery, but not in courts of common law, for a reason before-mentioned. (5) (a) Judgments in the House of Lords are not formally House of Lords. drawn up, but minutes only are entered on the journals. (1) Cazenove and another v Vaugh 1 Maule & Selw. 4. (2) Gilb. Ev. 58. (3) See ante, p. 289. (4) Palmer v Ld. Aylesbury, 15 Ves. 176. Corbett v Corbett, 1 Ves. & Beam. 340. (5) See ante, p. 310. (a) Vide Black v Braybrook, 2 Starkie 7. The minutes of a judgment are the judgment itself; and they may be proved by an examined copy. (1) inferior courts. When the judgment of a court baron, or of any other Proceedings in court of inferior jurisdiction, is offered in evidence, the proceedings on which it is founded ought to be shewn; (2) but as the record is not usually made up in form, the minutes of their proceedings will be admitted, (3) if they are perfect, and omit nothing material. wills. 1317) * 299 Testaments are proved in the ecclesiastical court Probate of either in common form, or in form of law. (a) The first mode of proof is where the executor presents the will before the Judge, without citing the parties interested, and deposes that it is the true and last will of the testator; upon which, the Judge allows the will. The proof in form of law is, when the will is exhibited before the Judge in presence of the parties interested, and after a full examination is finally allowed. (4) (b) If the will be proved in common form, it may be disputed at any time within thirty years; but if it be proved in the more formal mode, and there be no proceedings within the time limited for appeals, the will cannot afterwards be disputed. (4) After proof of the will, the original is deposited in the registry of the ordinary or metropolitan, and a copy in parchment is made out under his seal, and delivered to the executor, together with a certificate of its having been proved before him, which copy and cer. tificate are the probate. A court of common law will not take notice of a will as a title to personal property, till it is proved in the Ecclesiastical Court; (5) and (1) Jones v Randall, Cowp. 17. (2) See ante, p. 305. (3) Fisher v Lane, 2 Black Rep. 834. Holt. C. J. in R. v Hains, Comberb. 337. (4) 3 Bac. Ab. 40. tit. Executor. (a) The rules of evidence in courts of probates are the same as in courts of common law, unless altered by statute. Eveleth v Cranch, 15 Mass. Rep. 305. (b) Vide Tayl. 94. Hants Hull, 2 Binney 511. (3131 *300 though the original will, together with the probate, is produced by the officer of the Ecclesiastical Court, the will cannot be read in evidence, unless it bears the seal of the Court or some other mark of authentication. (1) (a) It is not the practice in the ecclesiastical courts to grant a second probate, if the first should be lost, but only to grant an exemplification from the record of the court, and this exemplification will be evidence of the proof of the will. (2) And an examined copy of the probate is evidence of the person there named being executor, as the probate is an original taken by authority, and of a public nature; (3) but a copy of the will would not be evidence of that fact. (4) The probate of a will, devising real property, is not evidence of the contents, in an action of ejectment, even to prove a relationship; for where the original is in being, the copy is not admissible; and, besides, the seal of the court does not prove it a true copy, unless the suit relate only to personal property. (4) But the ledgerbook, says Mr. Justice Buller, is evidence in such a case, because this is not considered merely as a copy, but is a roll of the court; and though the law does not allow these rolls to prove a devise of lands, yet when the will is only to prove relationship, the rolls of the spiritual court, which has authority to enrol wills, are sufficient proof of such testament. And, under particular circumstances, the ledger-book may be evidence even in a devise of real estate; as where, in an avowry* for a rentcharge, the avowant could not produce the will under which he claimed, (that belonging to the devisee of the (1) R. Barnes, I Starkie, 243. (3) Hoe v Nelthorp, 3 Salk. 154.; 1 Ld. Raym 154. S. C. Holt C. J. in R. Haynes, Skin, 584. See ante, p. 264. (4) Bull. N. P. 216. () Vide Laws of N. Y. 1 N. R. L. 364. c. 23. ges!. 36. |