Exceptions. there are, however, exceptions, the most important of CHAP. IV. which are—first, in proving matters of public or general interest, as boundaries of parishes, rights of common or customs (s); secondly, in questions of pedigree and relationship, statements made by members of the family (t); thirdly, on a second trial between the same parties, the evidence of a witness examined at a former trial, in which the same question was in issue, and since deceased, may be proved by any one who heard it (u); fourthly, declarations made by persons since deceased against their pecuniary or proprietary interest (v), such as admissions by a person that he has no title to an estate or easement, or accounts by which a man charges himself with the receipt of money (w), but the interest must be proprietary or pecuniary (x), and the relation of an act which would make the relator liable to prosecution is no exception (y). Lastly, declarations in the ordinary course of office business or employment, by deceased persons who had no interest in stating an untruth, with respect to acts done by them within the scope of their duty, and which are made contemporaneously with the acts to which they relate (z). Res Gesta.]-There are other statements made by Res gestæ. parties which are admissible in evidence as part of the res gestæ, namely, where a statement is made by a person accompanying an act, and which tends to explain or show the intention of such act; as what a person says on entering on land, on forfeiture, &c., departing from his dwelling, secreting himself, or when he does any act the character of which it is material to understand (a). Of Documentary Evidence.-Acts of Parliament.]— Of documenPublic Acts of Parliament require no proof, as of these tary evidence. the court takes judicial cognizance. (8) Taylor on Evid., Part II., Chap. XVIII. (4th edit.) (t) Ib., Chap. IX.; Doe v. Davis, 10 Q. B. 314. (u) Roscoe on Evid., 10th edit., p. 166; Doe v. Tatham, 1 A. & E. 3; Morgan v. Nichol, 15 W. R. 110. (v) Taylor on Evid., Part II., Chap. XI. (4th edit.) (w) Higham v. Ridgway, 1 East, 109; 2 Smith's L. C. 270 (5th edit.) -Acts of Parliament. PART II. Records and courts. Copies of private or local and personal acts are evidence, if purporting to be printed by the Queen's printer. Royal and other Proclamations.]-Copies of parliamentary journals or royal proclamations, purporting to be printed by the printers of the Crown, or of either House (b) are likewise evidence. And by a late act any proclamation, order or regulation issued by the Queen, the Privy Council, the Commissioners of the Treasury, the Board of Admiralty, any secretary of state, the Board of Trade, or the Poor Law Board may be proved primâ facie by producing a copy of the gazette purporting to contain the proclamation, order or regulation in question: or a copy purporting to be printed by the Queen's printer or the government printer of any colony or possession; or a copy or extract purporting to be certified to be true, if the document be issued by the Queen or the Privy Council, by the clerk or any member of the Privy Council; if by the Treasury, by any commissioner, secretary or assistant secretary of the Treasury; if by the Admiralty, by a lord of the Admiralty or a secretary; if by a secretary of state, by any secretary or under secretary of state; and if by the Board of Trade, or Poor Law Board, then by any member of such Board or a secretary or assistant secretary (c). Records and Proceedings of Courts.]-Records of the proceedings of superior courts, if the issue be upon their existence, can only be proved by production of the original, or exemplification under the great seal. The proper course is to get the record removed by certiorari into Chancery, and that court will send it by mittimus to the county court (d). In other cases, if complete, they may be proved by examined copies of the original (e). In order to make a verdict evidence, not only the postea, but the judgment should be proved (f). Proceedings in Chancery, rules of court, and judges' orders, may, except in the cases already mentioned, be proved in the same way; the latter may be proved by (b) 8 & 9 Vict. c. 113, s. 3. Jur. 629. (e) 14 & 15 Vict. c. 99, s. 14. (f) Taylor on Evid., s. 1407 (4th edit.) production, the court being bound to take judicial cognizance of the signature (g). Judgments of inferior courts must be proved by their production from their proper custody, or by examined copies. All proceedings in county courts may be proved by a copy of the entry thereof in the book of the court, bearing the seal of the court, and purporting to be signed and certified as a true copy by the registrar (h). Proceedings in bankruptcy, appearing to be sealed, and copies of proceedings purporting to be sealed with the seal of the court, are evidence (i). CHAP. IV. Public Entries and Documents.]- Entries in books Public entries and documents of a public nature, which it would be in- and documents. convenient on public grounds to remove, as the parish registers (j), the bank books (k), &c., may be proved by copies; so may inscriptions on tombstones, writings affixed to walls, and the like, which it would be impossible or extremely difficult to produce in court; and whenever by an act of Parliament any certificate, official or public document, or document or proceeding of any corporation or company, or certified copy of a document, bye-law, entry in a register or other book, or of any other proceeding, is receivable " in evidence of any particular; the same are admissible, provided they purport to be sealed, stamped or signed as required or directed, without any proof of the seal, stamp or signature, or official character of the person signing, and without any further proof thereof, in every case in which the original could have been received" (1). Certified copies of entries purporting to be sealed or stamped with the seal of the registrar-general's office, are received as evidence of birth, death or marriage (m). Also 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 (g) 8 & 9 Vict. c. 113, s. 2. (h) 9 & 10 Vict. c. 95, s. 111, p. 441. (i) 12 & 13 Vict. c. 106, s. 236, and 24 & 25 Vict. c. 134, s. 203. (j) Doe v. Barnes, 1 M. & R. 386. (k) Mortimer v. M'Callan, 6 M. & W. 58. (1) 8 & 9 Vict. c. 113, s. 1. See Doe d. Hemming v. Willetts, 7 C. B. (m) 6 & 7 Will. 4, c. 86, s. 38. PART II. Ancient records. Wills and probate. admissible in evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed as a true copy or extract by the officer to whose custody the original is entrusted (n). Ancient Records.]—Ancient records and writings, as ecclesiastical tenures, manor books, and the like, are proved by being produced from the proper custody. It need not be from the most proper custody (o), provided it is where it would reasonably be expected that they should be found (p), as a terrier from the parish chest or an expired lease from the possession of the lessor (q). It is not enough merely to produce them, but a witness must be called to speak to their custody (r). Wills and Probate.]—Before the passing of 20 & 21 Vict. c. 77, in order to prove a devise of lands, the will must have been produced (s), unless it had been lost, in which case an examined copy was evidence; but now if notice be given, ten days before the trial, of a party's intention to give in evidence the probate or letters of administration with the will annexed, stamped with the seal of the court of probate, or a copy so stamped, and a notice is not given by the other side within four days that he disputes the validity of the devise, the probate is sufficient evidence of the will and of its validity and contents (t). The failure to give the counter notice does not, however, preclude a party from contesting at the trial the validity of the will (u). Where personal property is in question, it can only be proved by producing the probate (v). Administration is proved by production of the letters. The seal of the probate court needs no proof (w). Affidavits.]-Affidavits to be used in the county courts CHAP. IV. may be sworn before any judge of the courts or registrar, Affidavits. before a commissioner to administer oaths in chancery in England, or a London commissioner to administer oaths in chancery, or a commissioner for taking affidavits in any superior court, or before a justice of the peace (r). Deeds.]-In order to prove a deed or other written in- Deeds. strument of any kind to which there is an attesting witness, Attesting if the instrument is one to the validity of which attestation witness. is requisite, he must be called, unless he is dead, insane (y), or absent in a foreign country (z), or he cannot be found on diligent inquiry (a); in which cases evidence of the witness's handwriting is admissible, and the handwriting of the party who executed the instrument need not be proved except for the purpose of establishing his identity (b). A party to a cause who is called as a witness cannot prove the execution of a deed requiring attestation by himself, if there is an attesting witness capable of being called (c). If the instrument is one to the validity of which attestation is not requisite, the attesting witness need not be called (d). When a deed is produced under a notice to produce, the party calling for it must still prove its execution (e), unless the party who produces it claims a beneficial interest under it (ƒ). who com petent. Witnesses.]-Whether a witness is competent or not Witnesses; is a question for the judge; and if it depend on a disputed fact, he must decide it (g); and this is so although the question be identical with the issue which the jury have ultimately to decide (h). If a witness's incompetency be discovered after his examination has commenced, the judge may withdraw his evidence from the jury (i). The parties themselves, their wives, and all other persons |