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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 generał 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 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 Actsexcept name Acts, estate Acts, naturalization Acts, and divorce Actshave 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 Interpretation Act, 1889, 52 & 53 Vict. c. 63, s. 9 (replacing 13 & 14 Vict. c. 21, s. 7), it is provided that “every Act” (including, by rect. 39, a local and personal Act, and a private Act), “ passed after the year 1850, whether before or after the commencement of this Act” (4 Feb. 1851) "shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the 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. This is in accordance with the parliamentary practice, that no amendments can be moved to marginal notes, or titles to clauses as printed in the bill. See Hansard's Parl. Deb., H. Com. 20th July, 1876, pp. 1759-60. The dicta to the contrary as to the effect of marginal notes, attributed to Jessel, M. R., in Venour v. Sellon, 2 Ch. D. 325, and to 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. 313, per Jessel, M. R.
So the title of a statute forms no part of the law. R.v.Williams, 1 W. Bl. 951 ; Claydon v. Green, L. R., 3 C. P. 522, per Willes, J. Though it has in some rare cases been referred to as showing the intention of the legislature. See Johnson v. Upham, 2 E. & E. 263; 28 L. J., Q. B. 257, per cur.; Blake v. Midland Ry. Co., 18 Q. B. 93, 109; 21 L. J., Q. B. 233, 237; Kenrick v. Lawrence, 25 Q. B. D. 99, 104, per Wills, J. The punctuation is not part of the statute. Claydon v. Green, L. R., 3 C. P. 522, per Willes, J.
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 were formerly proved, the printed journals not being evidence of them. Melville's (Ld.) case, 29 How. St. Tr. 683; R. v. Gordon, 2 Doug. 593. As to secondary proof of a private Act, see Doe d. Bucon v. Brydges, 6 M. & Gr. 282.
In searching for private Acts (and they are sometimes very difficult to find), Vardon's Index to the Local and Personal and Private Acts from 1798 to 1839, Bramwell's Analytical Table of the Private Statutes from 1727 to 1812, and the Index to the Statutes, Public and Private, published by the Select Committee on the Library of the House of Lords, from 1810 to 1859, will be found useful. The best collection of private Acts is in the British Museum. There are also fair collections in the libraries of the Inner Temple, Lincoln's Inn, and the Incorporated Law Society.
The stat. 41 Geo. 3, c. 90, s. 9 (post, p. 120), provides for the proof of Irish statutes passed prior to the Union.
Proof of Proclamations and Orders. The provisions of 8 & 9 Vict. c. 113, s. 3 (ante, p. 104), have been extended by the Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), which, by sect. 2, provides that “primâ facie evidence of any proclamation, order, or regulation issued before or after the passing of this Act by her Majesty or by the Privy Council, also of any proclamation, order, or regulation issued before or after the passing of this Act by or under the authority of any such department of the government or officer as is mentioned in the first column of the schedule hereto, may be given in all courts of justice and in all legal proceedings whatsoever, in all or any of the modes hereinafter mentioned : that is to say, (1.) “ By the production of a copy of the Gazette purporting to contain
such proclamation, order, or regulation.” See The Olivia,
1 Lush. 497, decided on 17 & 18 Vict. c. 104, s. 295. (2.) “By the production of a copy of such proclamation, order, or regu
lation purporting to be printed by the Government printer.” See R. v. Wallace, 14 W. R. 462, C. C. R. Ir. This provision has been extended by the Documentary Evidence Act, 1882 (45 & 46 Vict. c. 9), s. 2, to a copy purporting to be printed under the superintendence or authority of her Majesty's Stationery Office. The production of such evidence is primâ facie evidence of publication
of the order. Huggins v. Ward, L. R., 8 Q. B. 521. (3.) “ By the production, in the case of any proclamation, order, or
regulation issued by her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the clerk of the Privy Council, or by any one of the lords or others of the Privy Council; and in the case of any proclamation, order, or regulation issued by or under the authority of any of the said departments or officers, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said schedule in connexion
with such department or officer. Any copy or extract made in pursuance of this Act may be in print or in writing, or partly in print and partly in writing.
No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, or regulation.”
“ SCHEDULE. Column 1.
Column 2. Names of Department or Officer. Names of Certifying Officers. The Commissioners of the Treasury. Any Commissioner, Secretary, or
Assistant-Secretary of the Trea
sury. The Commissioners for executing the Any of the Commissioners for exeoffice of Lord High Admiral.
cuting the office of Lord High Admiral, or either of the Secre
taries to the said Commissioners. Secretaries of State.
Any Secretary or Under Secretary
of State. Committee of Privy Council for Trade. Any member of the Committee of
Privy Council for Trade or any
of the said Committee. The Poor Law Board.
Any Commissioner of the Poor
Law Board, or any Secretary or
Department, or any Secretary or
Assistant Secretary thereof. The Postmaster-General(33 & 34 Vict. Any Secretary or Assistant Secrec. 79, s. 21).
tary of the Post Office. The Act applies to the Local Government Board appointed under 34 & 35 Vict. c. 70, in the same way as it previously applied to the Poor Law Board (s. 5); it has also been applied to any regulation made by the Secretary of State under the Naturalization Act, 1870 (33 & 34 Vict. c. 14), s. 12; or the Prison Act, 1877 (40 & 41 Vict. c. 21), s. 51; and to a byelaw made by him under the Artillery and Rifle Ranges Act, 1885 (48 & 49 Vict. c. 36): see sect. 6 (3); and to proclamations, &c. by the Lord Lieutenant of Ireland ; 45 & 46 Vict. c. 9, s. 4. See also the Salmon Fishery Act, 1873 (36 & 37 Vict. c. 71), s. 64.
Proof of Letters Patent of the Crown. Letters patent may be proved by production of them under the Great Seal; or by an examined copy of the original enrolment of them in the public records, ante, p. 97, or a copy thereof certified by the Master of the Rolls under 1 & 2 Vict. c. 94, ante, p. 98; or by an exemplification under the Great Seal, ante, p. 96. Letters patent for inventions are now sealed with the seal of the Patent Office, impressions of which shall be judicially noticed and received in evidence. 46 & 47 Vict. c. 57, ss. 12, 84.
Proof of Records and Judgments. The proceedings of a court of record can be proved only by the record thereof; the record may be made up at any time when it becomes necessary to put it in evidence. Com. Dig. Record (A) (B); Kemp v. Neville, 10 C. B., N. S. 523; 31 L. J., C. P. 158; Kelly v. Morray, L. R., 1 C. P. 667.
In the case of a judgment prior to the J. Acts upon an issue of nul tiel record the proof is by the production of the original record, or by the tenor of it duly certified under a writ of certiorari. In case of variance the court may amend under Rules, 1883, 0. xxviii. r. 1, ante, p. 90. See Hunter v. Emanuel, 15 C. B. 290; 24 L. J., C. P. 16. Where the record is in the custody of the Master of the Rolls it seems that a copy certified under the seal of the Record Office is, under 1 & 2 Vict. c. 94, ss. 12, 13, ante, p. 98, as admissible in evidence as the original record. And now see Rules, 1883, 0. xxxvii. r. 4, ante, p. 97, as to office copies and observations thereon. A criminal record may, even in civil proceedings, be proved by a certified copy under 14 & 15 Vict. c. 99, s. 13, ante, p. 101. Richardson v. Willis, L. Ř., 8 Ex. 69.
Where there is not an issue of nul tiel record, but it is necessary to prove a record in support of some allegation in the pleadings, the record is to be prored either by production of the original when complete, by an exemplification, ante, p. 96, or by an examined or other authenticated copy; ante, pp. 97, et seq;
Records of judgments of the Superior Courts at Westminster, &c., prior to the J. Acts, were not complete until entered on parchment and enrolled; B. N. P. 228; Glynn v. Thorpe, 1 B. & A. 153; and a copy of a judgment in paper, signed by the Master, was not evidence of the judgment, for it had not yet become permanent; B. N. P. 228; though such entry was sufficient to warrant execution. In Fagan v. Dawson, 4 M. & Gr. 711, the issue roll not under the seal of the court, with a nolle pros. entered thereon against a co-defendant, was held insufficient proof of the nolle pros. It should seem that a regular entry on record was necessary. But a certified copy of the entry of a judgment in the entry book of judgments in the Court of Exchequer has been admitted in bankruptcy in proof of the judgment. Ex pte. Anderson, 14 Q. B. D. 606, C. A. In this case, however, the point was not argued. Where the pleadings did not allege any matter of record, but only averred the pendency of a judicial proceeding before the record is made up,
-as that a trial was had,—the fact might be proved by the production of the Nisi Prius record, or indictment, with the official minutes; and, in some cases, perhaps, by mere oral evidence. Pitton v. Walter, Stra. 162; R. v. Browne, M. & M. 315; R. v. Newman, 2 Den. C. C. 390.
In the case of a judgment under the J. Acts, it is provided by the Rules, 1883, 0. xli. r. 1, that “Every judgment shall be entered by the proper officer in the book to be kept for the purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the cause.” Forms of entering judgment are given in Appendix F. The pleadings will be filed by the officer, and under 0. v. rr. 12, 13, a copy of the writ of summons will have previously been filed; and it is
presumed by analogy to the former Chancery practice (vide post, pp. 112, et seq.) that these documents, together with the judgment, now constitute the record, and that no enrolment is necessary. This record may in every case be proved by its production under a judge's order (vide post, p. 156), or under 14 & 15 Vict. c. 99, s. 14 (ante, p. 101), by an examined or certified copy; or perhaps by an office copy under 0. xxxvii. r. 4. See observations thereon, ante, p. 97. Where the judgment is pleaded in a general form as an estoppel, the court will examine the pleadings and judgment to see what questions were in issue in the former action. Houstoun v. Sligo, Marquis of, 29 Ch. D. 448.
It has been held that the minute book of the clerk of the peace is not enough to prove that an indictment was preferred; nor is the original indictment itself, though endorsed as a true bill; R. v. Smith, 8 B. &C. 341; per Patteson, J., Porter v. Cooper, 1 C. M. & R. 388; yet in both these cases the allegation of the indictment was only introductory to the gist of the proceeding, which was
a conspiracy to keep back a witness in one case, and an action on an agreement, after indictment found, in the other. Nor is the minute book in which the proceedings at sessions are entered, and from which the record is made up, evidence of the names of the justices in attendance at the trial of it. R. v. Bellamy, Ry. & M. 171. Where the record alleges an adjournment by A. and others, parol evidence may be given as to the justices actually present. S. C. The minutes of proceedings are evidence of them on a trial before the same court sitting under the same commission. R. v. Tooke, cited 8 B. & C. 343; R. v. Newman, supra. An allegation that an appeal came on to be heard at the sessions must be proved by the production of the record regularly made up in parchment; R. v. Ward, 6 C. & P. 366; Accord. Giles v. Siney, infra; but where (as is usually the case) no record but the minute book is kept by the sessions, such book was admitted in evidence: R. v. Yeoveley, 8 Ad. & E. 806.
As to proof of a conviction or acquittal, now see 14 & 15 Vict. c. 99, s. 13, ante, p. 101. And as to proof of conviction in order to discredit a witness, see C. L. P. Act, 1834, s. 25, cited post, Proof by witnesses, p. 182.
It is the duty of a justice of the peace to return all convictions before him to the Quarter Sessions to be filed among the records of that court; 11 & 12 Vict. c. 43, s. 14 ; see Ex pte. Hayward, 3 B. & S. 546; 32 L. J., M. C. 89; and such conviction can be proved only by the production of the record thereof or an examined copy; Hartley v. Hindmarsh, L. R., 1 C. P. 553; Accord, Giles v. Siney, 13 W. R. 92, M. T. 1864, Q. B. In L. School Board v. Harvey, 4 Q. B. D. 451, an entry in the minute book of a summary conviction for non-compliance with a previous order was held to be evidence of such non-compliance : sed quære. The point does not appear to have been argued in R. v. Hutchins, 5 Q. B. D. 353; 6 Id. 300, C. A. In Watson v. Little, 5 H. & N. 472; 29 L. J., Ex. 267, a bastardy order, made by two deceased magistrates, was admitted in evidence on proof of their handwriting, on the ground that it was an official minute of the proceedings made in discharge of their judicial duty; as to the purpose for which it was so admitted, vide post, p. 205.
A condemnation by any justice under the Customs Laws, may be proved by production of a certificate thereof purporting to be signed by the justice, or by an examined copy of the record of such condemnation certified by his clerk. 39 & 40 Vict. c. 36, s. 263.
Where an ancient record of a judgment has been lost, it may be proved to the jury by parol or other testimony; as where the rolls of a court of a manor of ancient demesne had been destroyed, an old copy of a recovery in it under the hand of the steward was admitted without other proof, the possession having long gone according to it. Green v. Proude, 1 Mod. 117;