TH CHAPTER ÌI. Of Prohibitions. HE courts of Wefiminfier-Hall, having a general superintendency over all other courts, will grant a prohibi. tion to ftay the proceedings of an inferior court either pro defectu jurifdictionis, pro defectu triationis, or for proceeding as the law of the land does not warrant: And if the judge of party proceed notwithstanding the prohibition, an attachment may be had against him, or an action upon the cafe. When a prohibition is moved for, the method is for the party to file a fuggeftion in court, ftating the proceedings that have been had in the court below, and then fuggefting the reason why he prays the prohibition; upon this the court Hob.6% grants a rule for the other party to fhew caufe why a writ of prohibition fhould not iflue; and if it appear to the court that the furmife is not true, or not clearly fufficient to ground the prohibition upon, they will deny it; otherwife they will make the rule abfolute for the prohibition, and if the matter be doubtful, they will order the party to declare in prohibition. 30 G. 2. When the court inclines to grant the motion for a prohi- Rex v. Epik. bition, the defendant has a fort of right to infift, that the Ely, Mic. plaintiff shall declare; but where the court inclines against the motion, the plaintiff has no fuch right, for there might be judgment by default, and the court be obliged to prohibit against their own opinion; and it is no injury to the plaintiff, as he may apply to another court. Note; Where the party is ordered to declare in prohibition, he ought not to take out the writ, but ferving the other fide with a rule is fufficient; and if in that fuit he obtain judgment, the judgment is flet prohibitio, otherwife it is quod eat confultatio; therefore if the party be excommunicated, the mandatory part of the writ to affoil the party is not to be obeyed till after trial had. In cafes of tythe and fuch fort of matters where many things are in controverfy, it is very frequent to order the pro hibition The Dean and Ryal and Rowles, H. 23 G. 2. in Canc. Hartop and 1 P. W. 318. By 1 Jac. c. 15. f. 5. it is enacted, that if any person, who fhall afterwards become a bankrupt, fhall convey or cause to be conveyed to any of his children, or other perfon, any lands or chattels, or transfer his debts into others mens names except upon marriage of any of his children, (both the parties married being of the years of confent) or fome valuable confideration, the commiflioners may convey or difpofe thereof the fame as if the bankrupt had been actually feifed or poffeffed, and fuch fale or difpofition of the commiffioners fhall be good against the bankrupt, and fuch children and perfons, and all other claiming under them. The 21 Jac. 1. c. 19. f. 11. recites, that many perfons before they become bankrupts convey their goods upon good confideration, yet still keep the fame, and are reputed owners thereof, and difpofe of the fame as their own; and therefore enacts, that if any perfon fhall become bankrupt, and at fuch time fhall, by the confent and permiffion of the true owner, have in their poffeffion, order and difpofition, any goods or chattels, whereof they fhall be reputed owners, the commiffioners may difpofe of them for the benefit of the creditors. Upon this claufe it has been holden, that poffeffion of lands being no proof of title as poffeffion of goods is, a mortgagor continuing in poffeffion is not within this claufe if he deliver up the title deeds: but a mortgage of goods, where poffelfion does not go along with the fale, is within it, unless it be a chose in action, and there, as poffeffion cannot be delivered, delivery of the muniments and means of reducing it into poffeffion is fufficient: for the delivery of the muniments is in law a delivery of the thing itself; as a delivery of the key of a warehouse is a delivery of the goods in it; but things fixed to the freehold, till separated, are part of the freehold, and therefore of them a mortgage will be good without a delivery. Note; there may be a delivery from one parcener to another, or of things in parcenary to a third perfon. Goods left in the bankrupt's poffeffion for fafe cuftody only feem not to be within this claufe.-So goods left with the bankrupt to fell for one who deals by commiffion, can gain no credit by his vifible stock. By the ftatute of frauds, all devifes of land must be in writting, and figned by the party devifing the fame, or by fome other declaration in prohibition, the plaintiff regularly ought to fet out a custom of repairing; but if he do not, if the defendant Comyns 368. do not demur, but go to trial, it will be aided by the verdict, for the plaintiff ought not to have a verdict, unless he prove a cuftom to repair. PART H PART VI. Containing ONE BOOK. Of Evidence in general. AVING already taken notice of the feveral actions which may be brought, and the various defences to be made in fuch actions; as alfo the evidence neceffary to fupport the fame, it will be proper now to confider the theory of evidence in general, and to lay down fuch rules as are equally applicable in all caufes. In purfuing this enquiry, I have made great ufe of lord chief baron Gilbert's treatise on the fame fubject: However, have endeavoured to new model it in fuch manner as to render it more useful, RE Evidence is two-fold. 1. Written. 2. Not written. Written evidence is 1. Public. 2. Private. 1. As to public; and that is likewife two-fold. 1. Records. 2. Matters of an inferior nature. ECORDS are the memorials of the legislature and of the king's courts of juftice, and are authentic beyond all manner of contradiction; for there can be no greater demonstration in a court of justice than to appeal to its own tranfactions. The The first fort of records are acts of parliament: Thefe are the memorials of the legiflature, and therefore are the highest and most abfolute proof; and they either relate to the kingdom in general, and are called general acts, or only to the concerns of private perfons, and are thence called private. A general act of parliament is taken notice of by the judges and jury without being fhewed; but a particular act is not taken notice of without being fhewed; for the court cannot judge of particular laws which do not concern the whole kingdom, unless that law be exhibited to the court: For they are obliged by their oaths to judge of all matters coming before them fecundum leges et confuetudinem Angliæ, and therefore they cannot be obliged ex officio to take notice of a particular law, because it is not lex Angliæ, a law relating to the whole kingdom; and therefore, like all other private matters, it must be brought before them to judge thereon. But a private act of parliament, or any other private record, may be brought before the jury, if it relate to the iffue in question, though it be not pleaded; for the jury are to find the truth of the fact in queftion, according to the evidence brought before them; and therefore if the private act do evince the truth of the matter in queftion, it is as proper evidence to the jury as any record, or any other evidence whatever Nay, fince fuch records are moft authentic, it is the most proper ført of evidence. On an attaint a particular act of parliament cannot be given in evidence to the grand jury, which was not given in evidence to the petit jury; for fince on the attaint the former verdict is called in queftion, and the jury are to be punished for the iniquity of that verdict; it follows of confequence, that no more evidence can be given than was offered to the petit jury; for they could not make any difcernment but upon the evidence offered, and therefore ought not to be called in queftion upon different evidence. Hob. 227. Cr. J. 112. Hob. 227. y. 129. But a general ftatute may be offered in evidence to the Hob. 227. grand jury in an attaint, though it were not offered in evidence to the petit jury; because of a general law every perfon who lives under it is fuppofed to take notice, and by confequence the first jury in their decifion were obliged to underftand it, otherwife they ought to have referred it back to the decifion of the court; for when the jury take upon them |