than any common person, the copy must be regularly proved in a strict and regular mode. Thus the office copies of depositions, though they are evidence in the Court of Chancery, where officers are intrusted for that purpose, will not be admitted in courts of common law, without examination with the roll. (1) (a) So, where a fine is to be proved with proclamations, as it must be to bar a stranger, the proclamations ought to be examined with the roll; *for though the chirographer is authorized to make out copies of the fine itself, he is not appointed to copy the proclamations.(2)

[311]

* 293

When a verdict is offered in evidence, as the opinion Verdicts. of a jury on certain points in issue, it will be necessary also to produce a copy of the judgment founded upon the verdict. The production of the postea alone is not sufficient; for it may happen that the judgment was ar rested, or a new trial granted.(3) (b) But this rule will not apply to the case of a verdict on an issue directed out of Chancery, as it is not usual to enter up judgment in such a case; and here, therefore, the decree of the Court must be shewn, which will be a sufficient proof, that the verdict was satisfactory, and stands in force. (4) And though the nisi prius record, with the postea indorsed, is not evidence of the verdict, it is good and proper

(1) Gilb. Ev. 21.

(2) Ibid. Allen's case, Bull. N. P. 229. 3 Taunt. 166.

(3) Bull. N. P. 231. Fisher v Kitch

ingman, Willes, 367. Garland
Scoones, 2 Esp. N. P. C. 647. contra.
(4) Montgomerie v Clarke, at the
Delegates, 1745. Bull. N. P. 234.

(a) Vide Blake v Braybrook, 2 Starkie 7. Bull. N. P. 229.

(6) Vide Ridgely and another v Spenser, 2 Binney 70. A verdict in an action before a justice of the peace is evidence without producing the judgment; for the justice is bound to give judgment on the verdict, and can neither arrest it, nor grant a new trial. Felter v Mulliner, 2 Johns, Rep. 181. A verdiet in a former ejectment is evidence against the defendant, although no judgment has been entered, if he has acquiesced in it, by paying the costs and delivering the possession. Shaeffer v Kreitzer, 6 Binney 430.

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Writs.

evidence that the cause came on to be tried.(1) (a) · In
the case, just cited, of Fisher v. Kitchingman, Willes, C.
J. doubted whether the associate was the proper person
to produce the postea in evidence; because, by several
rules of court, it ought to be returned into court to the
proper
officer within the four first days of the next term;
but, on the prothonotaries informing the Court, that
scarcely one postea in a hundred was so returned, he
was of opinion, that this objection was not of sufficient
weight to set aside the verdict.

When a writ is only inducement to the action, the fact of taking out the writ may be proved without a copy, because possibly the writ might not have been returned, and then it is not a record. But where the writ itself is the gist of the action, there ought to be a copy from the record, as the best proof of which the nature of the case is capable.(2) (b) If it be necessary to prove that a

(1) Pitton v Walter, 1 Str. 161. Fisher v Kitchingman, Willes, 368. R. v Page, 2 Esp. N. P. C. 649. n. 6

Esp. N. P. C. 83. S. C.
(2) Gilb. Ev. 34. Bull. N. P. 234.

(a) In an action by one defendant in assumpsit against his co-defendant, postea is evidence to prove the amount of damages, but the endorsement of costs with the master's allocatur on the postea is not sufficient to entitle the plaintiff to recover half the costs, without producing the judgment. Foster v Compter, 2 Starkie Rep. 364. Where a verdict is recovered against a sheriff for the escape of a prisoner who had given security for the liberties of the gaol, in an action by the sheriff on the bond, the postea without the judgment is evidence to prove the recovery and actual damages, at least, if not the escape. Kip v Brigham, 7 Johns. Rep. 168. So, in covenant for the breach of the covenant against incumbrances, the postea in an action of ejectment, brought against the grantee by a mortgagee on a prior mortgage of the same land by the grantor, is evidence of the ejectment suit, and of the fact of a verdict in the cause. Waldo v Long, 7 Johns. Rep. 173.

(b) Vide Jenner v Joliffe, 6 Johns. Rep. 9. Brush v Taggart, 7 Johns. Rep. 19. Foster v Trull, 12 Johns. Rep. 456. Hasbrouck v Baker, 10 Johns. Rep. 248. That the confession of the opposite party will not supersede the necessity of producing a copy, vide Jenner v Joliffe, and Hasbrouck v Baker, ubi sup. But in an action of debt against the sheriff for the escape of a prisoner in execution on a ca. sa. parol evidence is admissible to show the issuing of the execution, its delivery to the sheriff, and the arrest of the party therein, the defendant having neglected to return and file the ca. sa, and having refused to produce it at the trial, after due notice. Hinman v Brees, 13 Johns. Rep. 529.

writ issued in a particular cause, it will not be sufficient to prove the præcipe by the filazer's book, and (after proof of notice to produce the original) to give in evidence a copy of the writ; but a proper search must be proved to have been made at the Treasury for the original writ, before secondary evidence can be given. (1) An examined copy of the judgment-roll, containing the award of an elegit and return of the inquisition, is evidence, in an action for use and occupation, of the title of the plaintiff, who claims under the elegit, without proving a copy of the elegit and of the inquisition; (2) the judgment-roll is absolute proof of all the proceedings, which it sets forth.

*If an action of trespass, for taking goods in execution, is brought by the party, against whom the writ of fieri facias issued, it will be sufficient for the officer to give the writ in evidence, without shewing a copy of the judgment.(a) But if the plaintiff is not the party, against whom the suit issued, and claims the goods by a prior execution or sale, the officer, in order to prove the sale or the execution fraudulent, must produce not only the writ, but also a copy of the judgment. (b) In the first case, he will justify himself, by proving that he took the goods in obedience to a writ issued against the plaintiff; but, in the other case, the goods do not prima facie belong to the party against whom the writ issued, and therefore the officer is not justified by the writ in taking them, unless he can bring the case within the statute 13

(1) Edmonstone v Plaisted, 4 Esp. N. P. C. 160.

(2) Ramsbottom v Buckhurst, Maule & Sel. 565.

* 294

(a) Vide Holines v Nuncaster, 12 Johns. Rep. 395. In trespass or trover by an officer who has taken goods in execution, against a stranger, the execution, without the judgment, is sufficient evidence of the plaintiff's possession. Barker & Knapp ▾ Miller, 6 Johns Rep. 195. Blackley v Sheldon, 7 Johns. Rep. 32.

(b) Vide post, 313. a. High v Wilson, 2 Johns. Rep. 46. Wilson & Gibbs Conine, Id. 280. Harget v Blackshear, Tayl. 107.

(813)

* 295

Eliz. c. 5. (against fraudulent alienations, &c.) for which purpose it will be necessary to shew a judgment.(1)

The return of the sheriff upon a writ, which has been duly returned and filed, is prima facie evidence of the fact there stated, when that fact comes incidentally into question.(a) If the sheriff return a rescue, the court above, to which the return was made, would give it such credit, as to issue an attachment in the first instance; though, upon an indictment for a rescue, the defendant might shew, that the return was false. (2) (b) And so, in an action for maliciously suing out an alias fieri facias, after a sufficient execution under the first fieri facias, the Court of King's Bench held, that the sheriff's return annexed to the writs (in which he stated, that he had forborne to sell under the first, and had sold under the second writ, by the request and with the consent of the plaintiff,) had been properly admitted at the trial as evidence of that fact, in support of a plea of licence pleaded by the defendant; for, as the Court said, faith ought to be given to the official act of *a public officer, like the sheriff, even where third persons are concerned. (3) (c)

(1) Lake v Billers, 1 Ld. Ray 733. Martin v Podger, 2 Black. Rep. 701.

(2) R. v Elkins, 4 Burr. 2129. There are several cases, in which the indorsement on the writ has been admitted as evidence against the sheriff, who makes the return, Blatch v Arch

er, Cowp. 63. M'Neil v Perchard, 1 Esp. N. P. C. 263. Jones v Wood, 3 Campb. 229. Fairlie v Birch, 3 Campb. 397.

(3) Gyfford v Woodgate, 11 East, 297.

(a) The return of a marshal to a writ cannot be traversed in an action between the parties to the suit, in which the writ is issued. Wilson v The Executors of Hurst, 1 Peter's Rep. 441. In an action against the sheriff for false return of nulla bona to an execution, the burden of proof lies upon the plaintiff. Davis v Johnson & Co. 3 Mumford Rep. 81.

(b) In an action against the sheriff for an escape, his return of rescue is no conclusive. And where the writ is given in evidence by the plaintiff, the sheriff is not entitled to have the return read as part of the document. Adey v Bridges et al. 2 Starkie 189.

(e) Although in an action for a false return, the plaintiff may falsify it by eridence; yet the officer making a return, which is, on the return and filing of the

But though the sheriff's return is prima facie evidence that he has levied, it affords no proof that he has paid over the money to the judgment-creditor, so as to charge him in an action with the receipt. (3)

coveries.

It is enacted by statute 14 G. 2 c. 20. s. 4. (made for Cominon rethe purpose of protecting purchasers, in cases where recoveries have not been entered on record,) that where any person has purchased any estate, whereof a recovery was necessary to be suffered in order to complete the title, such person, and all claiming under him, having been in possession of the purchased estate from the time of the purchase, may, after the end of twenty years, produce in evidence the deed making a tenant to the writ of entry, or other writ for suffering a common recovery and declaring the uses, and the deed so produced (execution thereof being duly proved) shall in all courts be deemed good and sufficient evidence for the purchaser, and all claiming under him, that the recovery was duly suffered and perfected according to the purport of the deed, in case the record of recovery cannot be found, or should not appear to be regularly entered.

A decree in the Court of Chancery may be proved by an exemplification under the seal of the Court; (c) or by

(1) Cator v Stokes, 1 Maule & Sel. 599.

Proceedings in Chancery.

writ, a matter of record, cannot be admitted to contradict his own return. Gardner v Hosmer, 6 Johns. Rep. 325. Purrington v Loring, 7 Mass. Rep.388. The writ is only evidence against the sheriff to the extent of his duty under the writ, and it is no part of his duty to annex the name of the officer to the retura. Hill v Leigh & Reay, 1 Holt N. P. Rep. 217.

(a) An exemplification under the seal of the court of chancery, of a decretal order awarding execution on a prior decree, and reciting the substance, of a decree of the court for the trial of impeachments and the correction of errors, which affirmed the prior decree of the court of Chancery, and ordered it to be carried into execution, was held inadmissible evidence, and that it was requisite to have produced [an exemplification of] the original decree, which was the basis of the execution; and that the execution was inadmissible, as a justification to a vendee in a sale under it without producing the decree warranting it. Wilson & Gibbs v Conine, 2 Johns. Rep. 180.