name or title of honour or dignity." The first of these commissions was issued in the twenty-first year of Henry VIII., and the last in the second of James II. (1) From these visitation-books, entries were afterwards made into the books kept at the College of Heralds. Pope's bull. A license from the Pope, granted in the reign of Edward the Second, has been adjudged to be evidence of an impropriation, the Pope being formerly the supreme head of the church, and having the disposition of all spiritual benefices (2). For the same reason, a Pope's bull was formerly admitted in evidence, to show that monastery lands had a special exemption from the payment of tithes (3). Corporation-books. * 320 Corporation-books, containing an account of the privileges or public transactions of the body, are evidence in a suit between the several members, on the same footing as manor-books between the tenants of a manor. But they are not evidence in favour of a corporation to support a claim of right against a stranger (4) (a); and before they can be admitted in any case, it ought to be shown that they have been regularly kept by the proper officer of the corporation. On an information in the nature of a quo warranto, the prosecutor produced in evidence a book written by the prosecutor's clerk, not an officer of the corporation, which appeared to be only minutes of corporate acts done some years before, and was not kept as a public book of the corporation; *this evidence was rejected at the trial, and, on a motion afterwards for a new trial, the court held that it had been properly rejected. "Corporation-books," the court said, " are generally allowed to be given in evi (1) See First Report of the House of Commons on the Public Records, p. 82. Appendix, (c. 8.) (2) Cope v. Bedford, Palm. 427. (3) Lord Clanricard's case, Palm. 37. (4) 1 H. Black. 214. n. (c.) Mayor of London v. Mayor of Lynn. (a) So, they are not evidence in favour of a person claiming under the corporation. Jackson d. Donnally & others, v. Walsh, 3 Johns. Rep. 226. dence, when they have been publicly kept as such, and when the entries have been made by the proper officer; not but that entries made by other persons may be good, if it be shown that the town-clerk is sick, or refuses to attend (1) (a)." A general history may be admitted, says Mr. Just. Bul- Histories. ler, to prove a matter relating to the kingdom at large (2). Thus, in the case of St. Katherine's Hospital, Lord Hale allowed Speed's Chronicles to be evidence of a particular point of history in the time of Edward III. (3). And the same book was admitted as evidence of the death of Edward the Second's queen, in the case of Lord Brounker v. Sir R. Atkins (4), where Ch. J. Pemberton said, he knew not what better proof they could have. Histories, however, it is admitted, cannot be received as proof of a private right or particular custom (5). Camden's Britannia was therefore rejected on an issue, whether by the custom of Droitwich salt-pits could be sunk in any part of the town, or only in a certain place (6). And in another case where the question was, whether a particular abbey was of the inferior order, Dugdale's Monasticon was refused, because the original records might be had in the augmentationoffice (7). So, it has been determined, that Dugdale's Baronage is not evidence to prove a descent (8). With regard to the proof of entries in public books, it is now clearly settled, that wherever an original is of public nature and admissible in evidence, an examined copy (1) R. v. Mothersell, 1 Str. 92. 12. Vin. Abr. Evidence, (A. b. 15.) pl. 16. (2) Bull. N. P. 248. (3) 1 Ventr. 151. Stainer v. Burgesses of Droitwich, 1 Salk. 282. Skin. 623. S. C. (4) Skin. 14. a (5) Bull. N. P. 243. Cockman v. (6) 1 Salk. 282. Skin. 623. (8) Piercy's case, 2 Jon. 164. (a) Acc. Highland Turnpike Company v. M Kean, 10 Johns. Rep. 154; in which case it was held that it was not enough to prove the book to be in the hand-writing of a person stated in the book itself, to be the secretary; but not otherwise shown to be the officer. proper Proof of entry in public books. *will equally be admitted (1). The rule is necessary, as well for the security of the instrument, as for the convenience of the public. Examined copies, therefore, of entries in the Journals of the Lords or Commons (2), or of entries in the Bank books (3), or in the books of the East India Company (4), and examined copies of entries in parish registers, or in the books of assessments made by the commissioners of land tax (5), or in the books of the commissioners of excise (6), or in the court rolls of a manor (7), and in other cases of the same kind, have been admitted in evidence, when the original books themselves would have been admissible (a). But where an original is of a private nature, a copy will not be evidence, unless the original is lost, or destroyed, or in the possession of the opposite party. Thus, the copy of an old letter, brought from the chest of a corporation, has been refused (8). In one case, indeed, where the original was kept in the Bodleian library at Oxford, and by the statutes of the university not removable, an examined copy was allowed to be given in evidence (9); the court admitted the case not to be within the general rules of evidence, but, under the particular circumstances, permitted the copy to be read (b). (1) Per Holt, C. J. in Lynch v. Clerke, 3 Salk. 153. R. v. Haines, Comberb. 337. Skin. 583. S. C. Jones v. Randal, Cowp. 17. (6) Carth. 346. R. v. Commissioners of Land-tax, 2T. R. 234. (7) Tucky v. Flower, Comberb. 137. R. Haines, ib. 337., per Holt, C. J. Doe dem. Churchwardens of Croydon v. Cook, 5 Esp. N. P. C. 221. (8) R. v. Gwyn, 1 Str. 401. (4) 2 Doug. 593. n. (3). 234. (a) Vide ante, 311. in notis. A copy of an entry in a book kept by a corporation, is not authenticated by the seal of the corporation; an examined copy must be produced. Stoever v. Lessee of Whitman, 6 Binney 416. (b) It may not be improper, in this place, to take notice of a species of writings, which fall more strictly under the division of public writings, not judicial, than under any other head, that is. *CHAP. VII. On the Inspection of Public Writings. THE judicial records of the king's courts are safely kept Records. for the public convenience, that any subject may have access to them for his necessary use and benefit; which was the ancient law of England, and is so declared by an act of the official acts of public notaries. Although there may be cases in which the certificate of a notary will be admitted for the purpose of authenticating the judgment of a foreign prize court; (Vide ante, 301. n.) yet his certificate is, in general, evidence for no purpose whatever, except in relation to foreign bills of exchange; in respect of which the non-payment or non-acceptance by the drawee can be proved by no other evidence than the protest; which protest proves itself without further evidence. Peake's Ev. 74. n. 221. Chitty on Bills, 290. But where an action was brought in England on a foreign bill, of exchange drawn upon a person residing in that country, it was held that a protest was not evidence, and that the presentment should be proved in the same manner as if it were an inland bill, or promissory note. Chesmer v. Noyes, 4 Campb. 129. Nor in an action on a policy of insurance, or in any other case, is the master's protest evidence to prove the loss or other point in issue; but it is admissible to contradict the evidence which the captain who made it may have given at the trial. And its being shown by the insurance broker to an underwriter, as containing an account of the loss for which the insured claimed, will not make it evidence even against the insured whose broker thus produced it. Christian v. Coombe, 2 Esp. Rep. 490. Senat v. Porter, 7 Term Rep. 158. Marsh, on Insurance, 716. Scriba v. Ins. Co. N. A. C. C. U. S. P. Condy's Marsh. 716. a. Hempstead v. Bird, 1 Day 91. Miller v. Ireland, Tayl. 308. Marine Ins. Co. of Alexandria v. Stras, 1 Mun. 408. Lamalore v, Caze, and Winthrop v. Union Ins. Co. C. C. U. S. P. Condy's parliament in the forty-sixth year of Edward the Third (1). Copy of in- Some restriction, however, of the general right of inspect dictment. ing records has been thought necessary in the case of an acquittal on a prosecution for felony; in which case, if the trial is at the Old Bailey, a copy of the indictment cannot regularly be obtained without an order from the court; and it is a common practice, on the circuits, to apply to the court for a copy at the time of the trial. This practice appears to have been first adopted at the Old Bailey, in pursuance of an order made by some of the judges, for the regulation of those sessions in the twenty-sixth year of Charles II. (2). It was then ordered, that no copies of any indictment for felony be given without special order, upon motion made in open court, at the general gaol delivery; for the late frequency of actions against prosecutors, (which cannot be without copies of the indictment,) deterreth people from prosecuting for the king upon just occasions." And Lord Holt has laid it down as a general rule of law, that if a person be indicted for felony and acquitted, and means to bring an action (without sufficient cause), the judge will not permit him to have a copy of the record, and he cannot Marsh. 716. n. A protest may be read in evidence for the purpose of showing a compliance with the clause of the policy, providing that payment shall be made within thirty days after proof of loss: it is a proper preliminary proof, though not evidence at the trial. Lenox v. United Ins. Co. 3 Johns. Cas. 224. Ruan v. Gardner, C. C. U. S. P. Condy's Marsh. 716. a. In Pennsylvania and South Carolina, however, the master's protest is evidence in chief. Nixen v. Long,. 1 Dall. 6. Story v. Strettel, Id. 10. Morgan v. Ins. Co. of North America, 4 Dall. 456. Brown v. Girard, Į Binney 40. Campbell v. Williamson, 2 Bay 237. |