* 332

This right of inspecting the muniments of a corporation is confined to the members of the corporate body. A stranger has no better right to inspect corporationbooks, than to inspect the books of any private person. On a prosecution against a person for practising physic, (not being a member of the college of physicians, nor having a licence, nor being a graduate of either university,) the defendant moved for leave to inspect the book of the college of physicians, but the court refused to grant the rule, as the defendant, who was not a member, had no right to see the books.(1) And in an action of trespass, where the defendant justified under a corporation [349] for distraining for a toll, the court refused a similar rule. to the plaintiff, who was a stranger to the corporation. (2) A different practice was at one time introdu ced in courts of law, (3) upon the ground, that on filing a bill for disclosure in a court of equity an inspection would be granted as a matter of course, and that it would only cause unnecessary expense to send them into that court. But this practice which was not warranted, by earlier authorities, (4) nor conformable to the practice of courts. of equity, has been long discontinued; and the rule of law, now established, is, that in disputes between several members of a corporation an inspection of the corporation-book will be granted, because each has a right to see them; but an inspection will not be granted in the case of a corporation, when a similar inspection would be refused, if the suit were between private persons. No distinction is to be made, in this respect, between a corporation aggregate, and a corporation sole, nor between a corporation sole and a private person suing in his individual capacity. (5)

(1) Dr. West's case, cited 1 Wils. 240. Allan v Tap, 2 Black. Rep. 850. (2) Cited by De Grey, C. J. in Hodges v Atkis, 3 Wils. 398. and by Lawrence J. in 8 T. R. 594. Mayor of Southampton v Graves, 8 T. R. 590.

(3) Mayor of Lynn v Denton, I T.

R. 639. Corporation of Barnstaple v
Lathes, 3 T. R. 303.

(4) Dr. West's case, cited 1 Wils.
210. R. v Dr. Bridgeman, 2 Str. 1203.
Mayor of Exeter v Coleman, Barnes,
233. Hodges v Atkis, 3 Wils. 398.
(5) 8 T. R. 59 5.

(850)

* 333

The rule for inspecting court-rolls, corporationbooks, and other public writings will not be allowed, where the party who has them in his custody, would, by producing them for inspection, disclose any evidence of a criminal nature, or expose himself to a prosecution. On an information, therefore, against several persons, for executing an office of trust without taking the oaths, the court refused a motion for leave to inspect some books kept by the defendants, in which they had entered their elections, receipts, and disbursements, as it would have compelled them to give evidence against themselves in a criminal prosecution; (1) and a similar motion was refused, on an information against two overseers for making a rate without the *concurrence of the churchwardens (2) Another case to the same effect is the case of the King v. Dr. Purnel, (3) where, on an information against the defendant for a misdemeanor in his office of vice chancellor of the university of Oxford, a rule for taking a copy of the university-statutes, in the care of the keeper of the archives, was refused by the Court of King's Bench, after great consideration; and the principle, that no man shall be bound to accuse himself, was fully recognized. This principle will not apply to the case of informations in the nature of a quo warranto, for usurping a franchise or intruding into a corporationoffice; for such informations, although originally and strictly criminal methods of prosecution, are applied to the purpose of trying civil rights, and are considered at present as merely civil proceedings. On an information, therefore, exhibited at the relation of a member of a corporation, against a person for unlawfully executing an office, the relator, who as a member has a right and interest in the books of the corporation, may obtain an inspection and copy of such, and of such only, as relate to the subject-matter in discussion. (4)

(1) R. v Mead, 2 Ld. Raym. 927. R. v Worsenham, Ld. Raym. 705. Rv Cornelius, 2 Str. 1210.

(2) R. v Lee, cited 1 Wils. 210.

(3) 1 Wils. 239. 1 Black. Reg. 37 R. v Heydon, 1 Black. 351.

(4) R. v Babb, 3 T. R. 579.

The motion for a rule to inspect and take a copy, where an action is depending, as founded on an affidavit stating the circumstances, under which the inspection is claimed; as (where a party applies for the inspection of court-rolls) that he is tenant of the manor, and that an application has been made to the lord or his steward, for leave to make the required inspection, which they refused; (1) and, on such an affidavit the rule will be made absolute in the first instance. (2)

* 334

With regard to the proper stage of the proceedings for making the application, it may be observed, that the court has refused the motion in an action against a corporation upon a right of toll, *because issue was not joined, so that it could not appear, whether an inspection would be necessary. (3) And in the case of Dr. Groen- [351] velt v. Burwell, before-mentioned, where the plaintiff applied for a copy of the proceedings instituted against him by the college of physicians, the court admitted the rule for inspecting the proceedings to be usual, for the sake of evidence, after issue joined, but not by way of assisting the party to plead. (4) If a rule has been granted to shew cause, why a mandimus should not be awarded, the court will not make a rule for inspecting and taking copies, until the first rule is made absolute, and a return is made to the mandimus; (5) and it has been thought the most convenient practice, where a rule nisi for a quo warranto information has been obtained, not to grant an inspection, until the information is granted. (6)

If no action is depending, the proper motion is for a rule to shew cause, why a mandimus should not issue, commanding the officer, who has the custody of the books

(1) Roe v Aylmar, Barnes, 236. (2) R. v Shelley, 3 T. R. 141. 4 Taunt 162.

(3) Hodges v Atkis, 3 Wils. 398. 2 Black. Rep. 877. S: C.

(4) Carthew. 421.

(5) Per Cur. in R. v Justices of Surrey, Say. 144

(6) By Ashurst J. in R. v Babb, 3 T. R. 581. R. v Hollister, Rep. temp. Hard. 245.

to permit the party to inspect and take a copy. The affidavit, upon which this motion is founded, ought to state clearly the right, under which the inspection is claimed, and that the inspection has been refused. In a case of this kind, where an inspection of the court-rolls of a manor was applied for, the party stated in his affidavit a prima facie title to a copyhold of the manor; and the Court of King's Bench held, that as he was clearly entitled to the copyhold, unless it had been conveyed away by those under whom he claimed, he had a right to see, whether any such conveyance appeared on the rolls, and the court therefore made the rule absolute, so far as related to the copyhold lands, the subject of the party's claim. (1)

* 335

(352)

*CHAP. VIII.

Of Private Writings.

THE nature and proof of public writings having been considered, the next branch of our subject relates to private writings.

It is a general rule of evidence, that, where a fact can be established by written proof, which is in its nature superior to parol proof, the writing ought to be produced, and parol evidence of the fact is inadmissible; for the best evidence is to be produced, of which the nature of the case is capable; as, where an agreement has been reduced into writing and signed by the parties, the primary evidence of the contract is the original agreement itself, which will exhibit the precise language and terms adopted by the contracting parties.

(1) R. v Lucas, 10 East, 235. and see 3 T. R. 142. R. v Tower, 4 Maule & Selw, 162,

The statute of frauds (1) requires a written instrument or memorandum, in a great variety of cases, where writing would not have been necessary by the rules of the common law. And as cases of this kind are continually occurring in practice, it may be useful to consider them in this place, with as much conciseness as the subject will allow.

An inquiry, therefore into those cases, in which a written instrument or memorandum is required by the statute of frauds, is the subject of the first section of the present chapter. The second section will treat of the proof of deeds and agreements; and the third, of the proof of wills. The two following chapters treat of the requisite of stamping, and of the admissibility of parol evidence to explain written instruments.

SECT. I.

Of Written Agreements, &c. required by the Statute of Frauds.

THE three first sections of this statute relate to interests created in real property; the fourth section relates to several kinds of agreements; the fifth section, to wills and devises of real property; the seventeenth, to contracts for the sale of goods.

[353]

The first section declares the legal effect of leases, Sect. 1. which are not in writing. It enacts, "that all leases, estates, interests of freehold or terms of years, or any uncertain interests, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only or by parol, and not put in writing and signed by the parties so making or creating

(1) St. 29 C. 2. c. 3.