PART IV. fendant. * 482 The defendant cannot, under this plea, give any matter in evidence which avoids the deed either at common law or by statute, unless it impeach the execution and continuance of the Evidence deed (e); and therefore cannot give in evidence that the deed for the de- is void for * usury (f), or that the bond was delivered to the plaintiff himself upon a condition not performed (g): or to a stranger, but not as an escrow (h). So in all cases where the deed is merely voidable, but not void, the matter must be specially pleaded, and is not evidence under this plea (i), as for infancy (k), duress, or where it was obtained by threats (); nor can he read the condition of the bond to show that it is void as being in restraint of marriage, or for any other illegality (m). Where the plea is non est factum generally, the proof lies upon the plaintiff, but where the plea shows that the deed is void for special matter, the issue is on the defendant (n). Plea of duress. The usual pleas in avoidance of a deed, are, that it was ob tained by duress, which will be supported by proof that he was forced to give the bond by a wrongful imprisonment (o), by threats, and then proof of a menace of life, member, mayhem, or imprisonment, is sufficient, it is said, to avoid a deed (p); but a threat of battery, or of injury to the party's house or goods is, it is said, insufficient, because the party may recover damages for the injury (q); this, however, is clearly a very inadequate reason for the distinction, and may be frequently false in fact. * 483 Under the plea of * duress, it is a question for the Jury, whether the act of the party was voluntary, or was the result of terror and apprehension. So the defendant, in avoidance of the (e) Cotton v. Goodright, 2 Bl. Rep. 1008. 5 Co. 119, a. Com. Dig. Pleader, 2 W. 18. 2 Starkie's C. 35. Harmer v. Wright.© (f) 5 Co. 119, a. Com. Dig. Pleader, 2 W. 18. (g) 9 Co. 137, a. (h) Dyer, 167, b. (i) Com. Dig. Pleader, 2 W. 18. (k) B. N. P. 172. 1805. 1 Ld. Raym. 315. But where infancy actually avoids the deed, it is evidence on the plea of non est factum. H. B. 515. Com. Dig. Pleader, 2 W. 18. (7) 5 Co. 119, a. (p) 2 Inst. 483. Per Eyre, J. 2 Com. Dig. Pleader, 2 W. 18. 3 Keb. 142. Com. Dig. Pleader, 2 W. 19. But this is no acknowledged by the defendant to be enrolled Cl. Ass. 72. Com. Dig. Pleader, 2 W. 20. • Eng. Com. Law Reps. iii, 232. deed, may plead coverture (r) or infancy (s), or that the deed was void under the statute of usury, or against gaming, or for other illegal matter. PART IV. Other pleas in answer are of a tender (t); solvit ad, or post Pleas in diem (u); or a release (1), which must be produced and proved avoidance, as a deed; performance of the condition; a defeazance, which must be proved as a deed, if denied. by the replication (y); eviction (2); expulsion (4). It is a general rule, that parties to a deed and those who are privy in estate, can found no claim upon the deed without showing it to the Court (b); and where the contract creates the obligation, it can neither be pleaded nor given in evidence unless it be under seal, but it is otherwise where the interest vests, although the deed has no continuance (c). Where an estate is claimed by act of law, the party may make his claim without showing the deeds; as where the party is tenant in dower, or by elegit, or guardian in chivalry, for where the law creates an estate, but does not give custody of the deeds, it must allow the estate to be defended without them (d). But a tenant by the curtesy cannot claim an estate lying in grant, without deed, because he has the custody of * 484 the deeds in right of his wife (e). Where the plea is, that J. S. was enfeoffed by deed, it seems that a parol feoffment cannot be proved; for if the Jury were to find the issue for the defendant the plaintiff would be for ever after estopped, although there was no such deed (f). So a demise may be proved by parol, for it may be by livery; but if it be alleged to have been by deed it must be proved by deed (g). The deliverer will be estopped by the livery, unless he produce the indenture to show that it was merely conditional. A deed of feoffment is evidence to prove livery, where the party has had possession (h), but if possession has not gone (g) Ibid. (h) Roll. R. 192. 227. Tri. per Pais, 209. Bac. Ab. Ev. F. 648. ᏢᎪᎡᎢ when ne cessary. along with the deed, livery must be proved under a plea of feoffment (i). Upon a plea that J. S. enfeoffed the defendant without saying per indenturam, the indenture is evidence of the feoffProof by, ment (k). A deed of feoffment may be given in evidence as a release, for where the party is already in possession the deed alone will be a sufficient contract to transfer a right (1). Where a thing lies in livery, a deed is evidence, although the seal be torn off, for the deed is only the evidence of transferring the possession, which being once transferred by livery does not return (m); but it is otherwise where the thing to which title is 485 claimed (as a watercourse) lies in grant, for a * man cannot claim a thing lying in solemn agreement, but by solemn agreement (n). Deposi tions under the statute of ry. The production of an original lease for a long term of years, coupled with a possession for seventy years, was held to be presumptive evidence of the execution of all mesne assignments (o). DEPOSITIONS. THE admissibility and effect of depositions in civil cases have already been considered (p); it remains to notice those which are made according to the statutes in criminal proceedings. The stat. 1 & 2 Phil. and Mary, c. 13, which is entitled 'An act touching bailment of persons,' enacts, that "Justices, before whom any such prisoner is brought, for any manslaughter of Ph. & Ma- felony, before any bailment or mainprize, shall take the examination of the said prisoner, and informations of them that bring him, of the fact and circumstances thereof, and the same, or as much thereof as shall be material to prove the felony, shall be put in writing before they make the same bailment; which said examination, together with the said bailment, the said Justices shall certify at the next general gaol delivery (q) to be holden within the limits of their commission." (i) Bl. Comm. 67. (m) Palm. 403. 220. 2 Show. 28. Bac. Ab. Ev. F. 649. 1 Mod. 11. 1 Vent. 14. 2 Keb. 556. 2 Lev. The livery being indorsed. Roll. Ab. 29. (n) 3 Bulst. 79. 1 Roll. R. 188. (p) Supra, Vol. I. p. 261. (4) If the prisoner be taken before the magistrate of a different county from that in which the offence was committed, the informations, &c. should be transmitted to the latter county, and will, it is said, be evidence, although the magistrate had no original cognizance of the offence. Cro. Car. 213. 2 Hale, 285. Dalton's Just. c. 111. p. 299. *Sect. 5, directs that every coroner, upon any inquisition before him found, &c. shall put in writing the effect of the evidence given to the Jury before him, being material, and shall certify the same, &c. The 2nd and 3rd Phil. and Mary, c. 10, directs in similar terms, that Justices of the peace shall take such examination and information, and put the same in writing within two days, and certify the same, &c. although the prisoner be committed. The object of the Legislature in framing these statutes, was to enable the Court to see whether a prisoner had been properly admitted to bail; and whether the witnesses are consistent or contradictory in the evidence which they give, without manifesting any intention to alter the law of evidence (r). But such depositions in case of felony, being warranted by those statutes, become evidence in particular cases, upon general principles of evidence, that objection having been removed by the statutes which would otherwise have operated to their exclusion, namely, that they were extra-judicial. * PART IV. In cases of felony. the wit 487 To warrant such evidence, it is essential to prove by the Previous Justice, coroner, or his clerk, &c. that the depositions contain proof. the substance of the information on oath (s). It is not necessary to prove that the depositions were signed by the witnesses (1). It must also be previously proved that the witness is dead (u), Death of or that he has been kept away by the practices of the pri- nesses. soner (x), or, as has been said (y), that he is unable to tra- * vel. It seems however to be very doubtful, whether the mere casual and temporary inability of the witness to attend in a criminal case, be a sufficient ground for admitting his deposition, which affords evidence of a nature much less satisfactory than the testimony of a witness examined viva voce in Court, and which might be procured at another time if the trial were to be postponed. It is true that the prisoner has had the power to cross-examine the witness, but this was at a time and under circumstances very disadvantageous to the prisoner. There are indeed many old cases in which great abuse has been practised in the reading of depositions against prisoners, although the deponents might have been produced; but these instances occurred in bad times, when little regard was paid to the rules of evi (r) Per Grose, J. Lambe's case, Leach's C. C. L. 3d edit. 625. 3 T. R. 710. 722. (s) 2 Hale's P. C. 284. (t) R. v. Flemming & Windham, 2 Leach, 996. (u) Westbeer's case, Leach, 14. And see Bromwich's case, 1 Lev. 180. 1 Salk. 281. B. N. P. 42. in a civil case to be insufficient. Fost. 337. Keb. 55. 1 PART IV. In the pre sence of the priso ner. dence, or indeed to any other laws (2). In Lord Morley's case (a) it was held, that it was not sufficient to show that endeavours had been used to find the witness, and that he could not be found. It must also be proved, that the depositions were taken conformably with the statutes, since any other would be extra-judicial; that they were taken on oath (6); that they were taken in the presence of the prisoner; for where the informations are taken before a magistrate, * the words of the sta* 488 488 tute strongly imply that the prisoner is supposed to be present, for the Justice is to take the examination of the prisoner, and the informations of those who bring the prisoner; and if they were to be taken in the prisoner's absence he would lose the benefit of cross-examination, and consequently the evidence, in principle, would not be admissible; the effect of the statutes, seems to be not to alter any rule of evidence, but only to make a particular proceeding regular, which otherwise would have been irregular, and so to leave it subject to the ordinary rules of evidence (c). In Woodcock's case (d), the magistrate visited Silvia Woodcock (who had received a mortal blow), at the poor-house, and took her deposition there in the absence of the prisoner, and C. B. Eyre was of opinion, that the deposition was not admissible since it had not been taken, as the statute directs, in a case where the prisoner was brought before the magistrate in custody, the prisoner therefore had no opportunity of contradicting the facts it contained. (*) See Mr. J. Foster's observations, Fost. Dis. p. 234; and see the cases of Sir W. Raleigh, Udal, The Earl of Essex, The Duke of Norfolk, Lord Strafford, &c. in the State Trials. (a) Kel. 55. (b) 2 Hale, 284. Note, the statutes do not in terms require that the informations shall be taken on oath, but this is necessarily incident to the duty of the magistrate or coroner. Dalton, Just. c. 111. B. N. P. 242. (c) According to the case of The King v. Eriswell, 3 T. R. 707, Buller, J. was of opinion that depositions taken in the absence of the prisoner might, after the death of the witness, be read; and refers to Radbourne's case, where it had been so held by all the Judges but in that case (Leach, C. C. L. 3d. edit. 512) the deposition was taken in the hearing of the prisoner, and of course the question did not arise. It seems to have been the opinion of Ld. Kenyon, in the case of The King v. Eriswell, that depositions so taken were not admissible; and he refers to Payne's case (as reported 5 Mod. 163), and terms the objection there taken to admitting the deposition in evidence, namely, the loss of cross-examination, a weighty objection. (d) Leach's C. C. L. 3d edit. 563. |