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A judge has a discretionary power to receive parts of a deposition, and to reject other parts which either appear to have been elicited by leading questions, or to be otherwise objectionable.1

Under the 14 & 15 Vict. c. 99, s. 2, it appears that the deposition of a party to an action will be admissible or inadmissible, as in the cases of ordinary witnesses.2

1 Small v. Nairne, 13 Q. B. 840.
2 Solomon v. Howard, 12 C. B. 463.

316

CHAPTER IV.

ON PUBLIC NON-JUDICIAL WRITINGS.

PUBLIC writings, which are not of a judicial character, are evidence of the matters which they purport to declare; provided they appear to have been obtained from proper custody, i.e., from a place where it is reasonable to presume that they would be deposited, if authentic.

The question of proper custody under this head applies more exclusively to the case of such ancient documents as were considered incidentally in the ninth and tenth chapters of this work; and it will be sufficient to refer to those chapters for the principles which regulate the admissibility and effect of ancient charters, grants, terriers, inquisitions, or surveys. On the general question as to what constitutes a proper place of custody, see supra, p. 108.

The proof of public non-judicial documents is now chiefly regulated by the 14 & 15 Vict. c. 99, s. 14, which enacts that

"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 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 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 which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words."

So

On this section it has been decided that an unstamped copy of an act-book of the Ecclesiastical Court is evidence of probate to prove executorship.1 So the journals of the House of Lords, entries in the books of tax collectors, commissioners of the excise or customs, secretaries of state, municipal or parliamentary electors,2 which were provable before the act by examined copies, may now be proved, either by examined or certified copies under the act. charters, letters patent, grants from the Crown, pardons, and commissions, may be proved either by originals, or examined or certified copies; or also, as it seems, by exemplifications under the great seal.3 As to the journals of the Houses of Parliament and royal proclamations, see supra, p. 282. As to proclamations, treaties, &c., of foreign states or colonies, supra, p. 286.

The 14 & 15 Vict. c. 99, s. 14, cited above, has virtually superseded the 8 & 9 Vict. c. 113, s. 1 (the Documentary Evidence Act), as far as it refers to public documents: but, as the two acts are construed cumulatively, and as the earlier act extends to some private documents, it is subjoined.

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 docu

1 Dorrett v. Meux, 23 L. J. 221, C. P.

2 2 Phill. 231.

3 Tayl. 1814.

ment, 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 in any judicial proceeding, the same shall respectively be admitted in evidence, provided they purport to be sealed or impressed with a stamp, or sealed or signed alone, as required, or impressed with a stamp and signed as directed by the acts made or hereafter to be 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, in every case in which the original record would have been received in evidence."

It seems impossible, as remarked by Mr. Phillips (vol. 2, p. 241), to give any meaning to these last italicized words; and they appear, as stated by Mr. Taylor (vol. 1, p. 13), "to have been copied from the 1 & 2 Vict. c. 94, s. 13, by some honourable member who did not know distinctly what he was about." The professional reader will, however, read "record" as synonymous, for the occasion, with "document."

The effect of these enactments, as to documents of a public nature, is to allow the substitution of certified or examined copies in all cases in which the original, if produced, would be evidence.

Whenever, therefore, it is proposed to tender an examined or certified copy of a public document in the place of an original, the practical question is, whether the original is such a public document as is intrinsically evidence per se. Documents of a private nature will be subject to a different test. These will be considered subsequently.

The more important and practical description of public documents will now be considered. First:

PARISH REGISTERS.

"Parish registers are in the nature of records, and

need not be produced, or proved by subscribing witnesses."1. They are therefore provable under the 14 & 15 Vict. c. 99, s. 14.

But it should appear that the original is in the proper custody, which, in the case of marriage, baptismal, and death registers, is with the incumbent, and not the parish clerk.2 But the register, or the copy in such a case, is only proof of the fact of a marriage, or a birth, or a death, of a person or persons therein named; and it is no evidence of the identity of a party. This must be shown extrinsically, as in the case of a marriage, either by proving the handwriting of the parties, or by calling a witness who was present at the marriage ;3 but the handwriting may be spoken to without producing the register.4

By the 52 Geo. 3, c. 146, verified copies of all registers of baptisms and burials are to be sent yearly by all ministers to the registrar of their diocese; and by the 6 & 7 Will. 4, c. 86, s. 38, "the RegistrarGeneral shall cause to be sealed or stamped" with the seal of his office, "all certified copies of entries given in his said office and all certified copies of entries purporting to be sealed or stamped with the seal of the said register office shall be received as evidence of the birth, death or marriage to which the same relates, without any further or other proof of such entry; and no certified copy purporting to be given in the said office shall be of any force or effect which is not sealed or stamped as aforesaid.” same act, s. 36, directs "" every rector, vicar, or curate," and every registered officer, to allow searches to be made in "any register book in his keeping," and to give certified copies of entries for a stated fee. Similar provisions are established with regard to nonparochial registers, by the 3 & 4 Vict. c. 92, s. 9,

Lord Mansfield, C. J.: Birt v. Barlow, Doug. 172.

2 Doe v. Fowler, 19 L. J. 151, Q. B.

3 Birt v. Barlow, Doug. 272.

Sayer v. Glossop, 2 Exch. 409.

The

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