examine de bene esse (which are distinct proceedings), it was not evidence without proof of the death or inability of the witness to attend; but a court of equity might have made a special order to read it without such proof, and without proof of the bill, answer, or other proceedings. See Jeremy's Equity Jurisdiction, 271, 280, and the authorities there cited.

Affidavits taken by the standing commissioners of the superior courts may be proved without producing the commission. The acting as such is prima facie sufficient proof of it. R. v. Howard, 1 M. & Rob. 187. The handwriting of the commissioner must be proved, and that of the deponent, if the original is produced. But if the affidavit be filed in a superior court of law or equity, an examined copy, or (in the same court and cause) an office copy of it, is in civil cases evidence against the party by whom it has been used or acted on, without proof of the handwriting of the person making it. Fleet v. Perrins, L. R., 3 Q. B. 536; L. R., 4 Q. B. 500, Ex. Ch.; B. N. P. 229. And now see Rules, 1883, O. xxxvii. r. 4, as to office copies, and observations thereon, ante, p. 97. It has even been held that an examined copy of the affidavit of a defendant, used by him in a cause and filed, was sufficient evidence of the affidavit on an indictment for perjury; R. v. James, 1 Show. 397; and see 3 Doug. 78, n.; although the present practice seems to require that the original affidavit should in such a case be produced. 2 Taylor, Evid. § 1379. Where an examined copy was offered in evidence of an affidavit filed in Chancery in another cause, and alleged to have been made by the defendant, but not shown to have been used or acted on by him, it was held inadmissible without proof of the deponent's identity with the defendant. Rees d. Howell v. Bowen, M'Cl. & Y. 383. In this case, a distinction was taken by the court between answers which formed part of the records, and were not allowed to be removed from the files of the court, and affidavits which could be removed. But no such distinction in fact exists, for the affidavits form as much part of the proceedings as the answer. Garvin v. Carroll, 10 Ir. L. R. 330, per Crampton, J. And on the ground that examined copies are good evidence in civil cases at law, the Court of Chancery will not allow its documents to be removed except in aid of criminal prosecutions. Att.-Gen. v. Ray, 6 Beav. 335; 1 Daniell's Chan. Prac. 6th ed. 601. It seems, therefore, that a deposition or affidavit filed in the course of Chancery proceedings is to be proved in the same way as an answer: vide ante, pp. 112, 113.

Under the Act 15 & 16 Vict. c. 86, the examination or testimony of parties or witnesses in equity was taken either orally before an examiner, or by answers to interrogatories, or by affidavits sworn before persons qualified to take them. The parties to the suit were examined under interrogatories filed in the record office of the court, to which the answers were also returned. See sects. 12, 19, 25. Oral examinations were reduced to writing by the examiner in a narrative form, and returned, with the proper examinations, to the same office. Sects. 31, 32, 34. Office copies of examinations are delivered under sect. 4. It should seem that these office copies, purporting to be signed and certified as true copies by the proper officer, are admissible as evidence in all courts by stat. 14 & 15 Vict. c. 99, s. 14; ante, p. 101.

The question as to whether a witness can be cross-examined on an examined or office copy of an affidavit or other document filed in court is considered under Cross-examination of witnesses, post, pp. 177, 178.

As to proof under the J. Acts by affidavit or depositions in the action, vide post, pp. 184 et seq.

By Rules, 1883, 0. xxxi. rr. 1, 4, 8, either party may, by leave of a judge, deliver interrogatories to the opposite party, which he is bound to

answer by affidavit within ten days. Where relief is sought on the ground of fraud or breach of trust, no such leave is required. An office copy of the answer to the interrogatories will, as against the party making it, be sufficient evidence of the answer at the trial; see Fleet v. Perrins, L. R., 3 Q. B. 536; L. R., 4 Q. B. 500, Ex. Ch., cited ante, p. 114, although the answering party may, if he think fit, put in evidence the interrogatories to which the answer is made. S. C. If the answer is not in the same court and cause, an examined copy of the answer will be sufficient evidence. S. C. And now see Rules, 1883, O. xxxvii. r. 4, as to office copies, and observations thereon, ante, p. 97. It seems that such examined or office copy will be admissible for the purpose of crossexamination or contradiction of the deponent; vide post, pp. 177, 178. In case of an insufficient answer, the party interrogated may, by r. 11, be ordered to be examined orally. A party may be examined as to a lost document; but the loss must be proved at the trial. Wolverhampton Waterworks Co. v. Hawksford, 5 C. B., N. S. 703; 28 L. J., C. P. 198. By r. 24, "Any party may at the trial of a cause, matter, or issue, use in evidence any one or more of the answers, or any part of an answer, of the opposite party to interrogatories without putting in the others, or the whole of such answer: provided always, that in such case the judge may look at the whole of the answers," and order answers connected with those put in, also to be put in.

By O. lxv. r. 54, the copy of an affidavit of discovery of documents, "delivered by the party filing it, may be used as against such party."

The stat. 52 & 53 Vict. c. 10, ss. 3, 6, ante, p. 81, now determines before what persons an affidavit may be sworn abroad, and provides that judicial notice shall be taken of their seal, signature, &c., except in the case of persons having authority to administer an oath under the law of a foreign country only. As to the proof by certificate of the authority to administer an oath in this excepted case, see Cooper v. Moon, W. N. 1878, p. 78, cor. Field, J.

Proof of Oral Testimony on a Former Trial.

What a witness, since dead, has sworn on a trial between the same parties, may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or it may be proved by any person who can swear from memory. Per Mansfield, C. J., Doncaster, Mayor of v. Day, 3 Taunt. 262; Strutt v. Bovingdon, 5 Esp. 56. The witness must be prepared to prove the words of the former witness, and not merely the supposed substance or effect of them. Ennis v. Donisthorne, 1 Phil. Ev. 219, 6th ed.; R. v. Jolliffe, 4 T. R. 285. As to when this evidence is admissible, see Effect of depositions and examinations in other suits, post, pp. 198 et seq.

Proof of Proceedings in the Ecclesiastical and Admiralty Courts.

The minute book of the Consistory Court is said to have been admitted as evidence of a decree for alimony. Houliston v. Smyth, 2 C. & P. 25; semb. acc. Leake v. Westmeath, 2 M. & Rob. 396. And a sentence of separation à mensâ, &c., was admitted by Lord Kenyon dubitanter without proof of the libel. Stedman v. Gooch, 1 Esp. 3. So the sentence of an admiralty court was held evidence of a condemnation without producing

the libel and answer, at least if not found, or not unusually filed with it. Per Trevor, J., in Wheeler v. Louth, Com. Dig. Testm. (Č. 1). But it seems questionable whether a sentence in either of these courts is generally admissible without proof of the previous proceedings in the suit. In the Kingston's (Ds. of) case, 20 How. Sta. Tri. 377, on objection taken to the reading of the sentence in a jactitation suit without the libel, allegations, and all other proceedings in it, they were all put in evidence. In Cleeve v. Att.-Gen., Somerset Sum. As. 1841, where defendant put in a suit for subtraction of tithe in order to disprove a modus, Rolfe, B., required that the depositions, which had been found and were produced with the rest of the proceedings by the registrar, should also be read. In Leake v. Westmeath, 2 M. & Rob. 394, Tindal, C. J., refused to admit a decree for alimony to be given in evidence without proof of all the prior proceedings-namely, the libel, answer, and defensive allegations, and where a decree was affirmed on appeal to the Arches, his lordship required that the process of appeal should be duly proved by a transcript of the proceedings below, in order to make the decree of the superior court admissible; but he expressed an opinion that the depositions filed need not be produced. The action there was by the attorney of the defendant's wife, who had acted for her in the various proceedings in the matter of her divorce à mensâ, &c., and her claim of alimony; and the evidence of the divorce was put in by the plaintiff in order to show that she was living apart justifiably, and so to fix defendant with liability. The plaintiff recovered a verdict subject to a case. This holding seems to be, in part at least, at variance with Stedman v. Gooch, ante, p. 115, and perhaps neither case can, under the circumstances, be taken as an authoritative decision. Tindal, C. J., treated the judgment of the ecclesiastical court on the same footing as a decree in Chancery in respect of the evidence of it. See Phillips v. Crawly, Freeman, 83, 84; Laybourn v. Crisp, 4 M. & W. 320, cited ante, p. 113.

By 20 & 21 Vict. c. 85, the Court for Divorce and Matrimonial Causes was established, in which all jurisdiction in such causes was vested, and that of the Ecclesiastical Courts abolished, except as to granting marriage licences. By sect. 13, this court had a seal, and all decrees and orders, or copies thereof, sealed with it "shall be received in evidence." The language of this section differs from that of the Probate Court Act (20 & 21 Vict. c. 77), sect. 22 (post, p. 118), and does not expressly make the seal prove itself, though the courts are bound to notice that the court has a seal. But the 8 & 9 Vict. c. 113, s. 1 (ante, p. 100), seems to render any proof of the seal unnecessary. The proceedings in this court were by petition, citation, and answer; and the decree was recorded in the court book, and may be proved either under the above clause, and, ut semble, by the usual proofs of entries in public books, as to which vide ante, pp. 96 et seq. The jurisdiction of this court has been transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division, but the old forms and proceedings are retained. J. Act, 1875, s. 18.

The jurisdiction of the High Court of Admiralty has also been transferred to the High Court of Justice, and is assigned to the same division. J. Act, 1873, ss. 16, 34.

Proof of Judgments in Inferior Courts.

The judgment of a county court, court baron, or other inferior jurisdiction, may be proved by production of the book or rolls, containing the proceedings of the court from the proper custody; and if not made up in form, the minutes of the proceedings will be evidence or an examined copy of them. R. v. Huins, Comb. 337; 12 Vin. Ab. (A. b. 267); Hennell

v. Lyon, 1 B. & A. 182; R. v. Smith, 8 B. & C. 341; Dawson v. Gregory, 7 Q. B. 756. But this rule does not extend to proceedings of the court of quarter sessions, on the crown side, which is a court of oyer and terminer, and is not an inferior court. R. v. Smith, supra. As to proof of convictions before that court, vide ante, p. 108. In proving the judgment of an inferior court, as the old county court, evidence should also be given of the proceedings previous to judgment. Com. Dig. Testm. (C. 1). See Fisher v. Lane, 2 W. Bl. 834; Thompson v. Blackhurst, 1 Nev. & M. 266.

By the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 28, the registrar's book kept under the Act, or copies of entries in it, bearing the seal of the court, and purporting to be signed and certified as true copies by him, shall be admitted as evidence of the entries and proceedings referred to in them, and of the regularity of the proceedings, without any further proof. The clause does not seem to dispense with proof of the seal; but perhaps this is cured by 8 & 9 Vict. c. 113, s. 1, ante, p. 100, or by 14 & 15 Vict. c. 99, s. 14, ante, p. 101. See further, Dews v. Riley, 11 C. B. 434; 20 L. J., C. P. 264; Harmer v. Bean, 3 Car. & K. 307.

Proof of Proceedings in Courts of Summary Jurisdiction.

By the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s 41, "In a proceeding within the jurisdiction of a court of summary jurisdiction, without prejudice to any other mode of proof, service on a person of any summons, notice, process, or document required or authorized to be served, and the handwriting and seal of any justice of the peace or other officer or person on any warrant, summons, notice, process, or document may be proved by a solemn declaration taken before a justice of the peace, or before a commissioner to administer oaths in the Supreme Court of Judicature, or before a clerk of the peace, or a registrar of a county court; and any declaration purporting to be so taken shall, until the contrary is shown, be sufficient proof of the statements contained therein, and shall be received in evidence in any court or legal proceeding, without proof of the signature or of the official character of the person or persons taking or signing the same."

As to proof of conviction before justices forming a court of summary jurisdiction, vide ante, p. 108.

Proof of Probates and Letters of Administration.

Where the title to personal property under a will is in question, the original will cannot, in general, be read in evidence; but the probate must be produced. R. v. Barnes, 1 Stark. 243; Pinney v. Pinney, 8 B. & C. 335; Pinney v. Hunt, 6 Ch. D. 98. The probate is sealed with the seal of the court, vide infra. But the probate is not the only evidence of the will: for the probate itself, as also letters of administration cum testamento, &c., are only certificates that the will has been proved, and other evidence of equal authority can always be obtained; thus the Act Book of the Ecclesiastical Court, containing an entry of the will having been proved and of probate granted to the executors therein named, is admissible evidence of executorship, without accounting for the non-production of the probate. Cox v. Allingham, Jacob, 514. An examined copy of the Act Book is also evidence since Act 14 & 15 Vict. c. 99, s. 14, ante, p. 101; Dorret v. Meux, 15 C. B. 142; 23 L. J., C. P. 221; and it was so before

that Act. See Davis v. Williams, post, p. 118. And the original will with an indorsement or note at the foot of it by the surrogate and deputy registrar is primary evidence of probate, when no other record of it is kept. Doe d. Bassett v. Mew, 7 Ad. & E. 240. See also Gorton v. Dyson, 1 B. & B. 219, and Waite v. Gale, 2 D. & L. 925.

These cases are put on the ground that the record in the Ecclesiastical Court is primary evidence of the will, and so it would seem that no secondary evidence would be admissible until both the non-production of the probate and the non-production of any other record of the Ecclesiastical Court had been accounted for.

It was said by Holt, C. J., in Hoe v. Nelthrope, 3 Salk. 154; S. C. sub. nom. Hoe v. Nathorp, 1 Ld. Raym. 154, that the copy (of course, examined) of a probate of a will is good evidence, because the probate is an original taken by authority; but this view has not generally been adopted, though it is not altogether inconsistent with principle. Where the probate of a will is admissible in evidence under 20 & 21 Vict. c. 77, s. 64, post, p. 149, in proof of a devise of real estate, a copy stamped with any seal of the Court of Probate (or now of the Probate Division of the High Court, vide infra), is rendered equally admissible by the section.

If the probate be lost, it is not the practice of the Ecclesiastical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shepherd v. Shorthose, Stra. 412. To prove the probate revoked, an entry of the revocation in the book of the Prerogative Court is good evidence where no other record is kept. Ramsbottom's case, 1 Leach, C. C. 4th ed., 25, n. (b). As to the authority of the probate, and the manner in which it may be impeached in evidence, see Effect of Probate, &c., post, pp. 201, 202.

Administration is proved by the production of the letters of administration, or of a certificate or exemplification thereof, granted by the Ecclesiastical Court; Kempton v. Cross, Cas. temp. Hardw. 108; B. N. P. 246; or, without producing the letters of administration, by the original book of acts recording the grant of the letters. Ibid.; Elden v. Keddell, 8 East, 187. It is said that the seal of the Ecclesiastical Court proves itself, and Kempton v. Cross, supra, is cited in the text books for that purpose; but the case only shows that the act of the Prerogative Court under its seal will be credited by the courts of law; and not that the seal itself requires no proof. It would be a strong thing to require the courts to take notice of the seals of some hundreds of local and limited probate courts which existed in the kingdom. Vide ante, p. 80. An examined copy of the Act book, stating the grant of letters of administration to the defendant, is proof of his being administrator, without notice to produce the letters. Davis v. Williams, 13 East, 232. See further, Williams on Executors, Pt. v. Bk. 1, Ch. 1.

By the Act for establishing the Court of Probate (20 & 21 Vict. c. 77), s. 22, seals were provided for the court: i. e. for the principal and district registries, "and all probates, letters of administration, orders, and other instruments, and exemplifications and copies thereof respectively, purporting to be sealed with any seal of the Court of Probate, shall in all parts of the United Kingdom be received in evidence without further proof thereof." See also sect. 64, post, p. 149. The court was a court of record (sect. 23); and its jurisdiction has been transferred to the High Court of Justice by the J. Act, 1873, s. 16, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. See Pinney v. Hunt, 6 Ch. D. 98.