THE LAW OF EVIDENCE. BEST PROOF THAT CAN BE ADDUCED. be a register of it in the Secretary of State's office, and that register would be the best evidence Rhind v. Wilkinson, 2 Taunt. 237. So, THERE are few parts of the Law of Evidence where the question was, whether the defendant which demand more attention from the practicles of a combustible and dangerous kind, had put on board the plaintiff's ship some artitioner than that of ascertaining the best evi- without giving due notice of their nature; and dence of which the nature of each case is ca- it appeared in evidence that the goods were depable. Probably, as many nonsuits and failures livered by the officer of the defendants with a of defence occur from defects or omissions in written order to the plaintiff to receive them, this respect as in any other branch of the practice in which nothing was said as to their nature; that they were received by the chief mate of at Nisi Prius. It will, therefore, no doubt be the plaintiff's ship, who had since died, and acceptable to a considerable class of our readers that no other person was present at the delito have the principal cases collected for their very; and it was further proved by the captain use; and it may be convenient for this purpose of the ship and the second mate, that no comto arrange the decisions under the following munication had been made to either of them, heads:-1st. with respect to the production of nor, as far as they knew, to any other person on board; the plaintiff was nonsuited, on the records and proceedings of Court; 2d. of pub-ground that he had not given the best evidence of the want of notice, which it was in his power to produce by calling the Company's officer, who delivered the articles on board; which nonsuit was afterwards affirmed by the Court of K. B. "The best evidence," said Lord which the nature of the thing was capable. "should have been given of Ellenborough, The best evidence was to have been had by calling in the first instance upon the persons immediately and officially employed in the deIf a witness be called to testify what another livery and receiving of the goods on board, who swore on a former trial, the record of such trial appear in this case to have been the first mate must be produced, or his evidence will not be the other. And though one of these persons, on the one side, and the military conductor on admitted, but the production of the record of the mate, was dead, it did not warrant the Nisi Prius, and the postea indorsed, will be suf- plaintiff in resorting to an inferior and secondficient. Pitton v. Walter, 1 Str. 162. The per-ary species of testimony, namely, the presumpson called to prove what a deceased witness had said on a former trial must repeat his very words, and not merely swear to their effect. Lord Palmerston's Case, cited 4 T. R. 290. lic books and documents; 3d. of deeds and wills; and 4th. of letters and papers. 1. As to the Records and Proceedings of the Court. In an old case upon a question whether the Abbey de Sentibus was an inferior Abbey, or not, Dugdale's Monasticon Anglicanum being produced for evidence, was refused, because the original records might be procured from the Augmentation Office. 2 Show. 163. With regard to the production of the records f the Court of Chancery, where an answer is required to be produced as evidence upon a trial at Law, the Court, except in a criminal case, will not permit the record itself to be sent, but an office copy must be obtained, un. less proof of the signature should be necessary. Jervis v. White, 8 Ves. 313. It has also been held that a witness cannot be cross examined as to what he swore in an affidavit, unless the affidavit is produced. Samthill v. Bound, 4 Esp. 74. In an action by an attorney, for words reflecting on him in the conduct of a cause, the proceedings, &c., in the cause must be produced in evidence. Nor is it sufficient to dispense with the production of them, that the costs have been taxed and all the papers given up. Parry v. Collis, 1 Esp. 399. And in order to set aside a verdict and judgment, obtained by the attorney without leave of the client, the best evidence is the affidavit of the client, which must therefore be produced. Heath v. Yeomans, 1 Anst. 271. 2. As to Public Books and Documents. In a case where a licence to trade, granted by the Crown, was lost, parol evidence of its contents was not admitted; because there must tion and inference arising from a non-communication to other persons on board, as long as the military conductor, the other living witness transaction of shipping the goods on board, immediately and primarily concerned in the could be resorted to: and no impossibility of resorting to this evidence was suggested to exist in this case." Williams v. East India Company, 3 East, 192. With regard to entries in the Bank books, copies of such entries are evidence; but upon a question whether the signature to a transfer is Auriol v. Smith, 18 Ves. 198. genuine, the book itself must be produced. A terrier cannot be received in evidence unless from the register of the diocese, or a copy from the parish register, if the original cannot be found. Atkins v. Hatton, 2 Anst. 386. constable of a ward, it was held not sufficient To prove that the defendant had been elected that a clerk in the town clerk's office produced a list of the persons sworn in to serve the office, in which the plaintiff's name was insert ed as having been sworn in as substitute for the defendant: the wardmote book, containing an account of the election, should have been produced. Underhill v. Wills, 3 Esp. 56. 3. As to Deeds, Wills, &c. An attested copy of the memorial of the assignment of a judgment is evidence of the fact of the assignment. So the attested copy of The Law of Evidence.--Equitable Relief as to Wills. the memorial of the registry of a deed is evidence of the fact of the registry; but if the memorial be used as evidence of the contents of the deed, the original must be produced. Hobhouse v. Hamilton, 1 Sch. & Lef. 207; and see I Leon. 184; 1 Salk. 389. And the memorial of a conveyance that has been registered, is not evidence of the contents of such conveyance, unless notice has been given to the opposite party to produce the conveyance. Melton v. Harris, 2 Esp. 549. When a deed is in the possession of the defendant, who has notice to produce it, but does not, an examined copy is evidence without proof of the defendant's execution of it. And though there are more parts of a deed than one which is in the defendants' possession, but who does not produce it after notice, the plaintiff is not obliged to produce in evidence one of the originals, but may give a copy in evidence. Doxon v. Haigh, I Esp. 409. If two parts of an instrument are prepared, but one only is stamped, the party having the custody of the unstamped part may give secondary evidence of the contents of the agreement, if the other party refuse, on notice, to produce the stamped part. Gurons. V. Swift, 1 Taunt. 507; $. P. Waller v. Horsfall, 1 Camp. 501. A copy of a deed to lead the uses of a fine, enrolled for safe custody only, may be read as evidence upon a trial. Combes v. Spencer, 2 Vern. 471; Combs. v. Dowell, ibid. 591. 4. As to Letters and Papers. 21 To let in secondary evidence, the best evidence of the loss of the original document that the case admits of, ought to be given : therefore, if a party has delivered a letter to his daughter, and previously to the trial, a witness has made a diligent search for it, assisted by the daughter, and could not find it; this is not evidence of loss to let in proof of its contents without calling the daughter; but, if the party had kept it in his own custody, and had set a person to search who could not find it in any of the places where letters were kept, that would be sufficient. Parkins v. Cobbett, 1 C. & P. 282. A plaintiff is not at liberty to give secondary evidence of the contents of a document, if his witnesses trace it to a person, who is not connected with the cause, without calling that person. Freeman v. Arkell, 1 C. & P. 135. But a plaintiff may give secondary evidence of the contents of a written paper, if the persons in whose possession it was, proved that they had made diligent search for it and could not find it. Harper v. Cook, 1 C. & P. 139. Proof of delivery of a paper to the servant of the defendant is not of itself sufficient to enable the prosecutor to give parol evidence of it. Rex v. Pearce, Peake, 76. And where a letter which had been in the possession of the defendant, was filed in the Court of Chancery, pursuant to an order of that Court, secondary evidence of its contents is not admissible, it A probate in the Ecclesiastical Court is not being in the power of either party to make an evidence in the Court of Chancery that copy-application to that Court to produceit. Williams hold estates would pass by the will. Jervoise v. Munnings, 1 R. & M. 18. But a merchant's v. Duke of Northumberland, Jac. & W. 570; copy book of letters may be read where the and where notice was given to the defendants as person who has the original letters refuses to executors, to produce the probate of their tes-produce them. Sturt v. Mellish, 2 Atk. 611. tator's will at a trial, it was held that a document In trover, if there be as well a verbal purporting to be the original will, and produced as a written demand, and the verbal demand by an officer of the Ecclesiastical Court of Chester under the seal of that Court, was admissible as secondary evidence to show that their testator had acknowledged therein that he had received the money in his lifetime for the use of the plaintiff. Gorton v. Dyson, 3 Moore, 558. Where the plaintiff declared on bond with a profert; on non est factum pleaded, secondary evidence of the bond by means of a copy, and shewing that the defendant had taken away the original, and before action brought, said he had burnt it, is not sufficient to sustain the declaration. Smith v. Woodward, 4 East, 585. have reference to that in writing, the writing. must be propuced; but, if they are concur rent and independent, the latter will not supersede the former. Smith v. Young, 1 Camp. 439. So, verbal adinissions by a party of his having been supplied with goods, may be given in evidence though it should appear that he has signed his name at another time to an account acknowledging the receipt of them. Jacob v. Lindsay, 1 East. 460. So, in proof of the instrument need not be called, but the or disproof of handwriting, the supposed writer evidence of persons well acquainted with his But in a case where a loss having been set-style of writing will be sufficient. 2 East C. tled on a policy against fire, the plaintiff, in C. 1000, 1, 2. an action for a libel charging him with fraud respecting such loss, not being able to produce the orignal policy, called the agent of the company, who stated that the policy was returned after the fire, which happened six years ago, and that on the loss being settled, it became a useless paper, and it being also proved that the policy was not in the plaintiff's possession, although a diligent search had been made it was held, that this evidence was sufficient to entitle the plaintiff to give secondary evidence of its contents. Brewster v. Sewell, 3 B. & A. 296. EQUITABLE RELIEF AS TO WILLS. As a general rule, a Court of Equity will not set aside a will of real estate, nor interfere between heir and devisee, till the validity of the will is settled at law. The jurisdiction as to the validity of a will of personal estate belongs to the Ecclesiastical Court, and that of a will of real estate to the Common Law Courts. But where there is an equitable jurisdiction in the case this will be different; in each case a Court of Equity, having the will before it, will entertain the question of its validity, and will direct an issue devisavit vel non. Thus, where there are outstanding terms to be removed, and the validity of the will came in question, an issue devisavit vel non was directed.a A receiver has sometimes been appointed as between heir and devisee; this was done in the case of Buckland v. Soulten, although there appears some doubt whether this was not by consent. However, an issue will certainly be directed by a Court of Equity wherever the case is entertained.d mark upon it. Three witnesses were examined; the person who prepared the will was examined, and there never was a clearer or more distinct case in support of a will, notwithstanding Lord Macclesfield, from circumstances which he laid hold of, thought fit to make a decree to set the will aside. A very short and imperfect note of that case will be found in Viner's Abridgment, vol. 8, p. 167; it is evidently the same case, for there is Lord Macclesfield's very reasoning; and the reasons he states, as far as you can rely upon that report, are very imperfect to support his judgThe cases which have been usually cited as ment. That decision was appealed from to authorities for the proposition that a Court of the House of Lords, and upon appeal, the Equity will not entertain the question of the House of Lords reversed the judgment and validity of a will, have been recently very closely dismissed the bill; upon what ground? examined in the Court of Equity Exchequer, Every body knows that Brown's Reports conand we shall give the observations of the Lord tain the cases on both sides, and the substance Chief Baron as to them. The first of these of the decisions. When you look at the case cases is Kerrick v. Bransby,e which was cited in Brown, it is quite manifest that the whole by Mr. Bethell to prove that Courts of Equity case was heard on the merits; on the merits, had no jurisdiction whatever in trying the therefore, the bill was dismissed, because the validity of a will; no jurisdiction as to a will of will was by the evidence clearly established, personalty, because that belongs to the Eccle- and no person who exercised a competent siastical Court; aud none as to a will of real judgment, could doubt the propriety of estabestate, because that was a question of law to lishing it. The decision, therefore, does not be decided by a jury. "Upon looking at that at all involve the question, whether or not a case, there is not the least doubt that the Court of Equity will entertain jurisdiction abridgment of it, as given by the reporter at upon such a subject. In short, that case the top of it, corresponds with Mr. Bethell's proves anything but the digest of it given by quotation, because it is this:- A will cannot the reporter. The next case cited by Mr. be set aside in equity for fraud or imposition; Bethell, was that of Andrews v. Powys.f because if it is of personal estate; it may be set" Now," said Lord Abinger, “the case of Anaside in the Ecclesiastical Court, and if of real estate, it may be set aside at law, on the issue devisuvit vel non."" That is a very imperfect statement, because an issue devisavit vel non is in truth determined in a Court of Equity; after it is tried, a Court of Law can do nothing; it is still before a Court of Equity. However, when you come to look at the case of Kerrick v. Bransby, it will be found to furnish anything but an authority for that digest of it. It was a case of a bill filed for the purpose, undoubtedly, of setting aside a will, and for taking other proceedings incidental to a Court of Equity, and to that bill an answer was put in. The imposition and fraud were denied by the answer, and the cause went to a hearing upon the evidence; and upon the evidence it was clearly established that there was neither fraud nor imposition in making the will. The only evidence of fraud was the declaration of a witness, Mrs. Hartshorn, who stated that the testator was incompetent, and did not know what he was about. It was proved by a witness on the other side, that he was present when the will was given to her by the devisee to keep, and that she did keep it, and that then she urged no objection, and made no re a Clarke v. Dern, 1 Russ. & M. 103. b 4 Y. & C. 373, n. c See 4 Y. & C. 376. d Bennett v. Vade, 2 Atk. 324; Jones v. Jones, 3 Mer. 161; Tathum v. Wright, 2 Russ. & M. 1. e 7 Bro. P. C. 437. drews v. Powys, proves anything but the pro- f 2 Bro. P. C. 504, ed. Toml. Equitable Relief as to Wills.-Points of Practice. 23 and that the plaintiff had no interest whatever, | POINTS OF PRACTICE, BY QUES but that he only pretended to have an interest under a will which was not proved. The objection was very plausible, it was argued on demurrer. The Lord Chancellor, Lord Macclesfield, over-ruled the demurrer, and afterwards made an order on the defendant, the probate executor, to bring in the money, and enjoined him from receiving any more money. Upon that there was an appeal to the House of Lords, and the House of Lords so far from dismissing the bill, confirmed the Lord Chancellor's decree. The appeal was dismissed, and the orders were all affirmed. Having shewn that these two cases did not establish the proposition contended for, Lord Abinger, C. B., cited, as the true qualification of the rule, the observations of Lord Hardwicke, in Webb v. Clarendon, 2 Atk. 424. "This Court will not determine there is fraud in procuring a will without a trial at law." "I take it," he continued, "that this Court does not hold original jurisdiction, and certainly it never can, to set aside a will either of real estate or of personal estate, or to establish a will; but the Court will, when it becomes necessary from the circumstances of the case that its jurisdiction should be exercised, proceed to investigate whether the will was properly made or not, though it will not decree against it, generally speaking, without an issue devisavit vel non. And where that issue has been determined, what is the Court to do? Is it to do nothing? Surely the Court must proceed to do something. The Court will either make an order for the delivery up of the will to be cancelled, or will grant a perpetual injunction against the party claiming under it, or vice versa. Then the principle really comes to this, that in cases where there is no occasion to resort to a Court of Equity, and there are one or two cases of that sort to be found in the books, when there is a simple statement that the will was made by fraud and imposition, or that the testator was incompetent, and there is no impediment in the way of a trial at law,-the bill may be demurred to because it contains no matter upon which the party is entitled to relief in Equity, the heir at law may bring an ejectment, and he does not need the assistance of a Court of Equity. But in cases where he cannot try his ejectment without removing obstacles which are in his way, he may properly apply to the Court of Equity to remove those obstacles." We have entered into this case more at length than usual, because many statements in opposition to it will be found in the text books. See 1 Wms. on Exors., p. 35, who says, "it is now settled that a will, whether of personal or real property, cannot be set aside in equity for fraud and imposition, because a will of personal estate may be annulled for fraud in the Ecclesiastical Court, and a will of real estate may be set aside at law." TION AND ANSWER. BANKRUPTCY PROCEEDINGS. (See p. 4, ante.) 1. If the trading of a bankrupt is proved by the proceedings under the commission, the counsel for the opposite party have no right to look at any of the proceedings but such as have been used for that purpose. Stafford v. Clarke, 1 Carr. & P. 24. 2. 3. 4. A certificated bankrupt cannot be discharged from arrest for a debt covered by his certificate, till it has been inrolled pursuant to 6 G. 4, c. 16, s. 96. Jacobs v. Phillips, 4 Tyrw. 652; S. C. Mee. & R. 195. No parol evidence to explain depositions taken before commissioners of bankruptcy, can he received? Wilson v. Poulter, 2 Stra. 794, A person who is interested in a commission of bankruptcy and the proceedings under it, is entitled to have them produced in a collateral cause. Cohen v. Templar, 2 Stark. 260. 5. Notwithstanding there has been no notice to dispute the coinmission, act of bankruptcy, &c. under the 46 G. 3, c. 135, s. 10, the proceedings are not conclusive evidence of the facts therein stated, but the Court is still to form a judgment upon them, whether they prove an act of bankruptcy or not. Brown v. Forrestall, Holt N. P. 190. 6. To render the proceedings under a commission of bankrupt, evidence, pursuant to Sir Samuel Romilly's Act, it is enough to shew that they are produced from the custody of the solicitor to the commission, or to prove the hand-writing of one of the commissioners before whom they were taken. Collinson v. Hillear, 3 Camp. 30. 7. The examination of a defendant before commissioners of bankruptcy, (proved to be correct) is receivable in evidence, although not signed by such defendant. Boddenham v. Lewis, Peake's Ad. Ca. 245. ACTIONS IN BANKRUPTCY. S. In an action by the assignees of a bankrupt for a debt due to the bankrupt, the defendant may plead a tender as to part, and give evidence of a set-off as to the remainder, without having pleaded the set-off. Wells v. Crofts, 4 Carr. & P. 332. 9. In trover by the assignees of a bankrupt to 10. The provisions of the 3 Jac. 1, c. 7, s. 1, 24 Points of Practice.- New Order in Chancery. claration by the assignees of a bankrupt, but shall thenceforth, unless removed by some the Court allowed it to be amended by in- special order of the Lord Chancellor, be atserting his name. Baker v. Neave, 3 Tyrw. 233; S. C. Cr. & Mee. 112. tached to such Vice Chancellor's Court. 2. That the title of the Vice Chancellor 12. It is a good answer to a plea of bankruptcy, that the certificate was obtained by to whose Court any cause shall be attached fraud, though the enactment to that effect in 5 G. 4, c. 30, s. 7, is not repealed in 6 G. 4, c. 16. Horn v. Ion, 4 B. & Ad. 78; 1 Nev. & Man. 627. shall be marked in every certificate granted under the second Order of the fifth day of May, 13. The plaintiff, assignee of a bankrupt, hav-one thousand eight hundred and forty-seven. ing died, and another assignee having been appointed in his stead, the rule to enter a suggestion of such death on the record, in pursuance of the stat. 6 G. 4, c. 16, s. 7, is absolute in the first instance. Westall v. Sturges, 4 Moo. & P. 217. 14. The 44th section of the stat. 6 G. 4, c. 16, which enacts that " every action brought against any person for any thing done in pursuance of the act, shall be commenced within three calendar months next after the 3. That, subject in every case to any special order made or to be made by the Lord Chancellor, every cause already heard by any Vice Chancellor since the first day of this present Michaelmas Term, be attached to the Court of the Vice Chancellor by whom the same has been heard, and every cause standing in the Lord Chancellor's book of causes down to and fact committed," does not apply to actions including the cause of Hodges v. Daly, shall against assignees who only act in the dispo- be attached to the Court of the Judge to whom sition and distribution of the property of the the same is appropriated in the said book. bankrupt, and not under any power conferred on them by law, or for any special 4. That the plaintiff in every cause now in purpose under the act; for the act applies the Lord Chancellor's Court, whether already to acts done for the purpose of taking pos- heard, standing for hearing, or otherwise, exsession of the bankrupt's property by the commissioners or messengers acting under cept those mentioned in the last preceding their warrant. Therefore, trover for a cha- order, shall be at liberty to deliver a notice to riot seized by assignees on the premises of his Clerk in Court, stating the name of the the bankrupt was held to be maintainable, NEW ORDER IN CHANCERY. although the action was not commenced by Vice Chancellor to whose Court he desires the owner against the assignees within three such cause to be attached, and to serve nomonths after the seizure. Curruthers v. Payne, 2 Moo. & P. 429; S. C. 5 Bing. 270. tice thereof on all parties to the cause: and 15. An objection to the sufficiency of deposi- in case the plaintiff shall neglect or omit so tions to establish an act of bankruptcy must to do on or before the seventeenth day of be made at the trial. Jacobs v. Latour, 2 Moo. & P. 201; S. C. Bing. 130. November instant, the defendant or any one of the defendants, shall be at liberty to give such notice. And in case on the twenty-first day of November instant, no such notice shall have been given, then any person who may be desirous of applying to the Court in such cause, shall be at liberty to give such notice; and that the notice of the plaintiff, if given on or before the said seventeenth day of November instant, or if not so given, then the notice, whether of the plaintiff or of any one of the defendants first given after the said seventeenth day of November instant, and before the said twenty-first day of November instant, and the notice of the plaintiff, or of one of the de1. That in all informations or bills marked fendants, or of the person desirous of apunder the first Order of the fifth day of May, plying as aforesaid, first given on or after the one thousand eight hundred and thirty-seven, said twenty-first day of November instant, with the words "Lord Chancellor," the plain- shall determine the Court to which such cause tiff shall underneath the words "Lord Chan- shall be attached, unless removed therefrom cellor" write the title of one of the three by any special order of the Lord Chancellor ; Vice Chancellors at his option, and the cause and that no party or person shall move, peti COURT OF CHANCERY. Thursday, the eleventh day of November, o one thousand eight hundred and forty-one. WHEREAS an act was passed in the fifth year of the reign of her present Majesty, intituled “An Act to make further provisions for the Administration of Justice:" And whereas, under the powers in that act contained, two additional Vice Chancellors have been appointed. Now I DO HEREBY ORDER, |