99

66

Inclosure Commissioners; 7 Geo. 4, c. 46, ss. 4 and 6, returns made by bankers of the members, &c., of their firms; 4 & 5 Will. 4, c. 30, ss. 10 and 11; 5 & 6 Vict. c. 27, s. 14, leases and exchanges by ecclesiastical corporations; 6 & 7 Will. 4, c. 86, s. 38; 25 & 26 Vict. c. 53, s. 123, documents from the General and Land Register Office; 5 & 6 Vict. c. 45, s. 11; 7 & 8 Vict. c. 12, s. 8; 25 & 26 Vict. c. 68, ss. 4 and 5, entries at Stationers' Hall relating to copyright; 49 & 50 Vict. c. 33, ss. 7, 8(2), copyright register abroad or in colony; 6 & 7 Vict. c. 18, s. 68, decisions in appeals from revising barristers; 5 & 6 Vict. c. 108, s. 29, leases and instruments deposited with the Ecclesiastical Commissioners; 6 & 7 Vict. c. 86, s. 16, cab licences; 46 & 47 Vict. c. 52, s. 134, proceedings of the Court of Bankruptcy; 7 & 8 Vict. c. 101, s. 69, proceedings of boards of guardians; 8 & 9 Vict. c. 18, s. 50, proceedings of the sheriff's court under the Lands Clauses Consolidation Act, 1845; Id. c. 20, s. 10, plans and books deposited with clerks of the peace by railway companies, with whose Acts the Railways Clauses Consolidation Act, 1845, is incorporated; 12 & 13 Vict. c. 109, ss. 11 and 17, documents issuing from Chancery and the Enrolment Office; 53 & 54 Vict. c. 5, s. 144, orders, reports, and certificates in lunacy; Id. s. 152, licences, orders, and instruments of Lunacy Commissioners; 51 & 52 Vict. c. 43, s. 28, proceedings in the County Courts; 38 & 39 Vict. c. 87, ss. 80, 107, 120, certificates and instruments from the office of land registry; 45 & 46 Vict. c. 39, s. 7 (8), acknowledgments of deeds by married women; 21 & 22 Vict. c. 97, s. 7, orders of the Privy Council under the Public Health Act, 1858; 18 & 19 Vict. c. 121, s. 32, orders and resolutions of metropolitan local authority for removal of nuisances; 38 & 39 Vict. c. 55, s. 186, bye-laws made by local authority under that Act (the Public Health Act, 1875), and sect. 326, bye-laws not inconsistent with that Act, and made under Public Health Acts thereby repealed; 14 & 15 Vict. c. 99, ss. 7, 8, 13 (post, pp. 100, 101), proclamations, treaties, and other acts of state, and judgments, decrees, orders, and other judicial proceedings of any foreign state, or in any British colony, and qualifications of apothecaries; 16 & 17 Vict. c. 137, s. 8; 18 & 19 Vict. c. 124, s. 5; 50 & 51 Vict. c. 49, s. 3, orders and proceedings of the Board of Charity Commissioners; 33 & 34 Vict. c. 75, s. 83, orders, &c. of Committee of Privy Council on Education; 49 & 50 Vict. c. made under the Medical Acts, or the Dentists Act, 1878; 16 & 17 Vict. 48, s. 23, orders c. 41, s. 5, entries in registers kept under the Common Lodging House Acts of 1851 and 1853; 17 & 18 Vict. c. 104, ss. 107, 277; 25 & 26 Vict. c. 63, s. 26, shipping documents; 37 & 38 Vict. c. 42, s. 20, certificate of incorporation, &c., and rules of building societies; 38 & 39 Vict. c. 60, s. 39; 39 & 40 Vict. c. 45, s. 24, documents relating to friendly and industrial and provident societies; 25 & 26 Vict. c. 89, ss. 61 and 174; 40 & 41 Vict. c. 26, s. 6, proceedings of joint stock companies; 26 & 27 Vict. c. 65, s. 24, rules of volunteer corps; 27 & 28 Vict. c. 113, s. 33, bye-laws of Thames Conservancy; certificates under Id. c. 120, s. 18, and c. 121, s. 20, relating to railways; 29 & 30 Vict. c. 117, s. 33, and c. 118, s. 29, rules of reformatory and industrial schools; 31 & 32 Vict. c. 37 (extended by several subsequent Acts, vide post, pp. 105, 106), proclamations and orders; 32 & 33 Vict. c. 67, s. 64, valuation of property in the metropolis; 33 & 34 Vict. c. 14, s. 12, declarations and certificates under Naturalization Act, 1870; 37 & 38 Vict. c. 67, s. 8, bye-laws relating to metropolitan slaughter-houses; 44 & 45 Vict. c. 58, s. 165, proceedings of court martial; 44 & 45 Vict. c. 60, s. 15, register of newspaper proprietors; 45 & 46 Vict. c. 50, s. 24, bye-laws and proceedings of municipal corporations; 46 & 47 Vict. c. 57, ss. 89, 96, patents and documents and registers in the Patent Office; 49 & 50 Vict. c. 39, s. 4 (3), orders, certificates, &c., under the H 2

Salmon and Freshwater Fisheries Acts; 51 & 52 Vict. c. 54, s. 5 (1), byelaws under the Sea Fisheries Regulation Act, 1888. There are also provisions which authenticate registers of births, baptisms, marriages, deaths, and burials, which are noticed at length post, pp. 124, et seq. By the Crown Lands Act, 1873 (36 & 37 Vict. c. 36), s. 6, a print, purporting to have been made by the order of either House of Parliament, of a report made by the Commissioners of Woods and Forests to her Majesty or Parliament, is as good evidence as the original.

By the Documentary Evidence Act (8 & 9 Vict. c. 113), s. 1, "Whenever by any Act now in force, or hereafter to be in force, any certificate, official or public document, or document or proceeding of any corporation, or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be 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

101 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 Bett'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 further proof. As to sect. 12, now repealed, vide post, p. 129.

By sect. 13,"Whenever in any proceeding whatever it to prove the trial and conviction or acquittal of any person charged with may be necessary 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. 100. applies to proof in civil proceedings, even on the issue of nul tiel record. This section 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. 182.

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 entrusted;" 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 ninety 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. 97. 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. ing, 1 Dears. & B. 132, 141; 26 L. J., M. C. 10, 14. Manwar

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,

pp. 124, et seq.; and Scottish parochial registers of baptism; Lyell v. Kennedy, 14 Ap. Ca. 437, D. P.; 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. Č. 57.

It should be observed that copies or extracts, attested or in any manner authenticated, are in many cases liable to stamp duty. Vide StampsCopy, post, p. 248.

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. fifty years before, without showing who B. was, or where the paper had been kept, it was rejected. Manby 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 arise as to the genuineness of it, the judge, before he admits it in evidence, will require information where it has been kept for some years back; when it was first seen, &c. R. v. Mothersell, 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. 102.

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. Andrew 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.