receivable in evidence of any particular in any court of justice, or before any legal tribunal, or either House of Parliament, or any committee of either house, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp, and signed as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature, or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence."

The meaning of the last paragraph in this section is by no means clear. In many cases there is no original record. The object of the statute seems to have been to dispense with proof of the genuineness of a document in all cases where it is by statute made evidence of the facts to which it relates. The signature of a de facto officer, who by virtue of that office has the custody of the records, is sufficient under this section, even though he be not the officer de jure. R. v. Parsons, L. R., 1 C. C. 24.

By Lord Brougham's Evidence Act (14 & 15 Vict. c. 99), s. 7, "all proclamations, treaties, and other acts of state of any foreign state, or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, either by examined copies, or by copies authenticated as hereinafter mentioned; that is to say, if the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy, to be admissible in evidence, must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or colonial court, or an affidavit, pleading, or other legal document filed or deposited in any such court, the authenticated copy, to be admissible in evidence, must purport either to be sealed with the seal of the foreign or colonial court to which the original document belongs, or in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy that the court whereof he is judge has no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as herein before respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement.'

A foreign patent is an "act of state" within the meaning of this section. In re Betts's Patent, 1 Moo. P. C., N. S. 49. And an order of a foreign court made ex parte on a shareholder is a judicial proceeding within the same section. Leishman v. Cochrane, Id. 315. Where the seal of the foreign court is affixed to a copy of the proceedings, for the double purpose of authenticating the proceedings and cancelling a stamp affixed thereon, that is sufficient. Loibl v. Strampfer, 16 L. T., N. S. 720, cor. Lush, J. It seems that the seal should be used, though so much worn as no longer to make any impression. Cavan v. Stewart, 1 Stark. 525.

By sect. 8, a certificate of the qualification of an apothecary, purporting

to be under the common seal of the society of apothecaries of the city of London, shall be received in evidence, without proof of the seal or of the authenticity of the certificate, and shall be deemed sufficient proof that the person named therein has been from the date of the certificate duly qualified to practise as an apothecary in any part of England or Wales.

Sect. 12, which provided for the proof of documents required by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), was in terms almost identical with sect. 107 of that Act, cited post, p. 122, and was repealed by the Statute Law Revision Act, 1875.

By sect. 13, "whenever in any proceeding whatever it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified, or purport to be certified, under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof."

See R. v. Parsons, L. R., 1 C. C. 24, cited ante, p. 95. This section applies to proof in civil proceedings, even on the issue of nul tiel record. Richardson v. Willis, L. R., 8 Ex. 69. As to proof, under the C. L. P. Act, 1854, s. 25, of a conviction, in order to discredit a witness, see post, p. 173.

By sect 14, "whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence in any court of justice, or before any person now or hereafter having, by law, or by consent of parties, authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted;" and the officer is required to furnish such certified copy or extract on application at a reasonable time and payment of a reasonable sum not exceeding 4d. per folio of 90 words.

The first part of this last section down to the word "or" seems merely to declare the common law rule; vide Proof by examined copy, ante, p. 92. Where the copy is signed and certified as the section provides, it is admissible on its mere production in court. R. v. Weaver, L. R., 2 C. C. 85. Where a copy is informally certified, and therefore inadmissible, under this section, it may yet be proved to be an examined copy by vivâ voce evidence, for the provisions of the section are cumulative. R. v. Manwaring, 1 . Dears. & B. 132, 141; 26 L. J., M. C. 10, 14.

The register of parliamentary voters of a borough and the poll books were provable under this section by copies; Reed v. Lamb, 6 H. & N. 75; 29 L. J., Ex. 452; so are registers of births, marriages, &c.; vide post, p. 118, et seq.; and the bye-laws of a railway company duly made and allowed under 8 & 9 Vict. c. 20, ss. 108-111, may be proved by a certified copy under the hand of the secretary of the company in whose custody they are. Motteram v. E. Counties Ry. Co., 7 C. B., N. S. 58; 29 L. J.,

M. C. 57.

It should be observed that copies or extracts, attested or in any manner authenticated, are in many cases liable to stamp duty. Vide post, StampsCopy.

Custody of Ancient Writings.

97

CUSTODY OF ANCIENT WRITINGS.

In general the admissibility of ancient writings, which are incapable of direct proof, depends upon the custody from which they are produced, and from which their genuineness may be inferred; before therefore proceeding to consider the proof of particular documents, a few observations of a general character will be made on this subject.

Ancient ecclesiastical terriers are not admissible unless found in a proper repository, viz. the registry of the bishop, or of the archdeacon of the diocese; Atkins v. Hatton, 2 Anstr. 386; Potts v. Durant, 3 Anstr. 795; or, as it seems, the church chest; Armstrong v. Hewitt, 4 Price, 216; which are also the proper repositories for the vicar's books; S. C. A terrier found in the registry of the dean and chapter of Lichfield has been admitted as against a prebendary of Lichfield. Miller v. Foster, 2 Anstr. 387 n. But mere private custody is not sufficient. Potts v. Durant, 3 Anstr. 789; Atkins v. Drake, M'Cl. & Y. 213. See also, as to terriers, R. v. Hall, L. R., 1 Q. B. 632. On an issue respecting the boundaries of two parishes, certain old papers were produced by the plaintiff (the rector of one of the parishes), which had come into the possession of the son of a former rector on his father's death, and which had been delivered by him, as papers belonging to the parish, to the witness (an attorney); it was held that the papers were sufficiently authenticated without calling the son of the former rector. Earl v. Lewis, 4 Esp. 1. Where a book, purporting to be the book of a former rector, came out of the custody of the defendant, his grandson, the proof was held insufficient; it not appearing how it came into the defendant's possession. Randolph v. Gordon, 5 Price, 312. In a suit for tithes, a receipt purporting to be a receipt given by a former rector fortyfive years ago to a person of the same name as the defendant, and produced from the custody of the defendant, has been held admissible. Bertie v. Beaumont, 2 Price, 303. Where A., the defendant in a tithe suit, offered in evidence a receipt purporting to be a receipt from one B. to one A. 50 years before, without showing who B. was, or where the paper had been kept, it was rejected. Mamby v. Curtis, 1 Price, 225, Wood, B., dissentiente.

An ancient document relating to the interest of all the estates in the parish, would reasonably be expected to be found among the title deeds of a large estate in the parish. R. v. Mytton, 2 E. & E. 557; S. C., sub. nom. Mytton v. Thornbury, 29 L. J., M. C. 109.

An ancient writing enumerating the possessions of a monastery, produced from the Herald's Office, is inadmissible. Lygon v. Strutt, 2 Anstr. 601. So an old grant to an abbey, contained in a manuscript register entitled "Secretum Abbatis" in the Bodleian library, was rejected, as not coming from the proper repository. Michell v. Rabbetts, cited 3 Taunt. 91: Bank of England v. Anderson, 4 Scott, 83. So an ancient grant to a priory among the Cottonian manuscripts in the British Museum was rejected; it not appearing that the possession of the grant was connected with any person having an interest in the estate. Swinnerton v. Stafford, Ms. of, 3 Taunt. 91.

In order to make an old document, as a manor book, &c., evidence, it was held not enough to produce it in court by the counsel of the party to whose custody it belongs, or by his steward, or even by the party himself; some witness who can speak as to the custody of it, should be sworn in court. Evans v. Rees, 10 Ad. & E. 151. And if any suspicion arises as to the genuineness of it, the judge, before he admits it in evidence, will require

VOL. I.

H

information where it has been kept for some years back; when it was first seen, &c. R. v. Mothersell, 1 Stra. 93. But however reasonable this security against fraud may be in some cases, it has been held enough if it be shown that such an instrument as an expired lease comes from the possession of the land agent of the lessor, though he may not be in court to produce it; Doe d. Earl of Shrewsbury v. Keeling, 11 Q. B. 884; or from the family solicitor; Doe d. Jacobs v. Phillips, 8 Q. B. 158. In this, as in other cases, the admissibility of the evidence is for the determination of the court.

The " proper custody means that in which the document may be reasonably expected to be found, although in strictness it ought to be in another place; thus a cartulary in the possession of the owner of a part of some abbey lands is admissible, though not owner of the greater part: in such a case the Augmentation Office will also be a proper place of deposit. Bullen v. Michel, 2 Price, 413; 4 Dow, 297. So a collector's book, produced from the possession either of his executor or his successor. Jones v. Waller, 3 Gwill. 847. So, a bond to indemnify overseers in a case of bastardy from a chest in the union workhouse. Slater v. Hodgson, 9 Q. B. 727. So, a document relating to a bishop's see may be produced from the custody either of his descendants or of his successors in the see. Meath, Bp. of, v. Winchester, Ms. of, 3 N. C. 183, Dom. Proc.; and see Id. 201, per Tindal, C. J.; Doe d. Neale v. Samples, 8 Ad. & E. 151; Croughton v. Blake, 12 M. & W. 205; Doe d. Jacobs v. Phillips, and R. v. Mytton, ante, p. 97.

In a suit for tithes by a rector against occupiers, the defendants pleaded a modus payable to the vicar for the tithes claimed. It was held, first, that the copy of the vicar's endowment, contained in an old book, recording the acts of former bishops of the diocese, was admissible for the plaintiff (the bishop's registry having been searched for the original without success), and that no search was necessary either in the public Record Offices, or in the vicar's house, although it was expressed in the instrument that one part of it was to remain with the vicar-secondly, that a terrier, appearing to be signed by a former incumbent, who was both rector and vicar of the parish, and whose handwriting was proved by the churchwardens, was admissible for the plaintiff, though produced from the custody of one who claimed the tithes in a particular district in the parish, and not from the usual depositories. Tucker v. Wilkins, 4 Sim. 241. The bishop's registry is the proper place for sequestrator's receipts and accounts. Pulley v. Hilton, 12 Price, 629.

A will of lands relating also to personal property is properly produced from a box containing the title deeds of the tenant for life of the lands. Andrews v. Motley, 12 C. B., N. S. 527; 32 L. J., C. P. 128. Expired leases, coming from the possession of the lessor, are admissible. Plaxton v. Dare, 10 B. & C. 17; Doe d. El. Shrewsbury v. Keeling, supra. Or from that of the lessee. Hall v. Ball, 3 M. & Gr. 242; Elworthy v. Sandford, 3 H. & C. 330; 34 L. J., Ex. 42.

PROOF OF PARTICULAR DOCUMENTS.

Those classes of documents which it is most frequently required to prove at Nisi Prius, will be found classified below, under appropriate headings.

Proof of Acts and Journals of Parliament.

Acts of Parliament may be divided into four classes:-1. Public general acts; 2. Public local and personal acts; 3. Private acts, printed by the Queen's printer; 4. Private acts, not printed by the Queen's printer. This

Acts and Journals of Parliament.

99 division is only established by custom, and this a very uncertain one, at least until lately.

Formerly it was the custom to declare most local and personal acts to be public; some of these were printed by the Queen's printer with, and formed part of, the regular series of public acts; other public local and personal acts, as well as local and personal acts not public, and private acts, were not always printed. The public local and personal acts not printed were chiefly road acts.

By a resolution of both Houses of Parliament, which took effect in the year 1798 (38 Geo. 3), the public acts were divided into two series; public general acts, and public local and personal acts; and all public local and personal acts have, since that time, been printed. The other acts were all classed as private, although they included many which ought clearly to come under the denomination of local and personal; as, for instance, inclosure acts.

In 1815 a resolution was passed, under which almost all private acts— except name acts, estate acts, naturalization acts, and divorce acts-have been printed. These form a third series of printed acts.

Since 1815 it has been usual to refer to the series of public local and personal acts by small Roman figures, by way of distinction.

All public acts, whether general or local and personal, are part of the law of the land, which all tribunals are bound to notice and apply.

By the 13 & 14 Vict. c. 21, s. 7, it is provided that "every act made after the commencement of this act" (4 Feb. 1851) "shall be deemed and taken to be a public act, and shall be judicially taken notice of as such, unless the contrary be expressly provided and declared by such act."

Such acts should be, and probably are, all inserted in the series of public general, or public local and personal acts.

The printed statute book is used as evidence of a public statute, not as an authentic copy of the record itself, but as aids to the memory of that which is supposed to be in every man's mind already. Gilb. Evid, 6th ed. 8, 9.

By the 8 & 9 Vict. c. 113, s. 3, it is provided that "all copies of private, and local and personal acts of parliament, not public acts, if purporting to be printed by the Queen's printers, and all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed."

But the marginal note of a statute in the copy so printed forms no part of the statute itself, and cannot be used to explain or construe the section; Claydon v. Green, L. R., 3 C. P. 511; so neither the punctuation; Id. p. 522, per Willes, J.; nor the title form part of the law; Id.; R. v. Williams, 1 W. Bl. 951. These authorities are fully supported by the parliamentary practice, as no amendments can be moved to marginal notes, stops, or title as printed in the bill. See Hansard's Parl. Deb., H. Com. 20th July, 1875, pp. 1759-60. The dicta to the contrary of Jessel, M. R. in Venour v. Sellon, 2 Ch. D. 525, and of Brett, L.J., in R. v. Local Government Board, 10 Q. B. D. 321, are erroneous; see Att.-Gen. v. Gt. E. Ry. Co., 11 Ch. D. 460, 461, 465, per C. A., and Sutton v. Sutton, 22 Ch. D. 513, per Jessel, M. R. See further on this subject Hardcastle on Statutory Law, Cap. iv. § 1.

If it should be necessary to prove a private act, not printed by the Queen's printer, it must be done by procuring an examined copy of the Parliament roll. B. N. P. 225. This was the way in which the journals of Parliament