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acts of parliament must be pleaded, that the party may appear to take the benefit of them. Another reason of this construction is, that as what shall constitute the solemnities of a contract is matter of law, so it is matter of law how these solemnities ought to be defeated and destroyed. And inasmuch as it is matter of law by what solemnities a contract is to be constituted, therefore, when any action is founded upon any solemn contract, that contract ought to be preferred to the court; now it were preposterous that the law should require the contract to be offered to the court, that it may appear to be legally made; and that it should not require it to be offered to the court, how it is defeated: Both certainly must be determined by the same judicature. Therefore you cannot give the act of Eliz. touching usurious contracts, in evidence on the general issue, though a general law, but it ought to be pleaded.-Humberston v. Howgell, T. 1614. Hob. 72. (a) So the statute of the sheriff's bonds cannot be given in evidence on the general issue, but ought to be pleaded. So a fine is made void by the statute of Westminster 2. c. 1. but construed only to be voidable. And a recovery by a wife with a second husband is made void by 11 Hen. VIII. but construed only voidable.–Case of Sadler's Comp. T. 30 Eliz.4 Co.59.2 Inst. 336.

If an action or information be brought upon a penal statute, and there [ 225 1 be another statute that exempts or discharges the defendant from the penalty, this ought to be pleaded, and cannot be given in evidence on the general issue; for the general issue is but a denial of the plaintiff's declaration, and the plaintiff has proved him guilty, when he has proved him within the law upon which he has founded his declaration; so that the plaintiff has performed what he has undertaken: but if the defendant would exempt himself from the charge, he should not have denied the declaration, but have shewed the law that discharges him.

Another difference is taken between where the proviso in a statute is matter of fact, and where it is matter of law. (b)

For where it is a mere matter of fact it may be given in evidence; as if an action of debt be brought against a spiritual person for taking a

(a) Samuel v. Evans, 2 T. R. 569; and ante p. 223 a, n. (b) contra.

(b) The statute 2 Geo. II. c. 24. . 8. against bribery at elections, having provided that an offender haviug, before his own conviction, discovered and convicted another offender, shall be exempted from the

penalties, &c. Such discovery and
conviction may be given in evidence
under the plea of nil debet, and need
not be pleaded specially. Sutton v.
Bishop, 4 Burr. 2283. Sibly v. Cum-
ing, ibid. 2464; and Gardiner v.
Horne, cited ibid, 2467.

farm,

farm, and the defendant plead quod non habuit nec tenuit ad firmam contra formam statuti: The defendant may give in evidence that it was for the maintenance of his house, according to the proviso in the statute. But on an information on 5 Ed. VI. c. 14. for ingrossing, the defendant cannot upon the general issue give in evidence a licence of three justices according to the proviso, because whether there be a sufficient authority given is matter of law, and therefore cannot be given in evidence, but must be pleaded. Anon. Godb. 144, 145.(a)

A saving proviso may be given in evidence on the general issue, because, if the party be within the proviso, he is not guilty on the body of the act on which the action is founded. Ibid. (b)

Of general acts of parliament the printed statute book is evidence : (c) Not that the printed statutes are perfect and authentic copies of the records themselves; but every person is supposed to know the law, and therefore the printed statutes are allowed to be evidence, because they are the hints of that which is supposed to be lodged in every man's mind already.

But in private acts of parliament the printed statute book is not evidence, (d) though reduced into the same volume with the general statutes: But the party ought to have a copy compared with the parliament roll; for they are not considered as already lodged in the minds of the people.

However, a private act of parliament in print that concerns a whole [*226] country, as the act of Bedford levels, for rebuilding * Tiverton, &c. may be given in evidence without comparing it with the record. (Dupays v. Shepherd, M. 1698. 12 Mod. 216.) And these things are the rather admitted, because they gain some authority from being printed by the king's printer; and besides, from the notoriety of the subject of them they are supposed not to be wholly unknown. (Goodright v. Skinner, M. 7 Geo. II. C. B.) And for this reason printed copies of other things of as public a nature have been admitted in evidence without being com

(a) And it has been held, a defendant cannot, in any action upon not guilty pleaded, give a licence in evidence. Vin. Abr. (Evid.) O. b. pl. 1. Et vide post 250.

(b) Vide R. v. Talbot, W. Jo. 320. S. P.

(c) Where the body of an act is general, and an exception to that generality is afterwards introduced by way of proviso or exception, he

who would bring his case within that exception must plead it. Stowell v. Zouche, Plowd. 376, cited in Horn v. Horn, 7 East, 532.

(d) And Lord Kenyon refused to receive in evidence the stat. 11 & 12 W. III. for preserving the navigation of the rivers Avon and Frome, printed by the king's printer. Edgar v. Lewis, Guildhall, H. 30 Geo. III.

pared

pared with the original: (a) as the printed proclamation for a peace was admitted to be read without being examined by the record in chancery.

Dupays v. Shepherd, sup.

Copies of Records.-The next thing is the copies of all other records; for they, being things to which every man has a right to have recourse, cannot be transferred from place to place to serve a private purpose, and therefore the copies of them must be allowed in evidence; a true copy being the best evidence you can have. (b) But a copy of a copy is no evidence,

(a) Mr. Peake says, that parliamentary journals were, in the opinion of Sir Edward Coke, entitled to the authority of records, and he has referred us (in 4 Inst. 23) to the stat. 6 Hen. VIII. c. 16. which prohibits the absence of any of the members without licence entered of record in the clerk's book. The general opinion, however, now is, that the house itself not being a court of record, none of its proceedings are so, and though formerly copies of nothing short of records could be received as evidence of the originals, yet now copies from the books of either house, examined with the originals, are equally received as evidence of the proceedings of the house. Jones v. Randal, Cowp. 17. Rex v. Lord George Gordon, Dougl. 569 (590); yet in cases where either house merely comes to a resolution as a foundation for other proceedings, such resolutions are no evidence of the fact resolved. Peake's Evidence, 53. Therefore, in the case of Titus Oates, 4 State Trials, 39, the resolution of the two houses, as to the existence of the Popish plot, was held to be no evidence in a court of justice of the truth of that fact. And in Rex v. Stockdale, Peake's Evid. 53, where the house of Commons had resolved that a publication was a libel on the house; and in Rex v. Reeves, ibid. that it was a libel on the constitution, and the attorney-general was ordered to prosecute; the jury were, nevertheless, directed to consider the intentions of the defendants, and both parties were acquitted.

Gordon, sworn copies of certain entries in the journals of the house of Commons were produced and read as evidence on the part of the crown, without being objected to. R. v. Gordon, 2 Dougl. 572 (590). In 12 Geo. III. Dunning moved for a rule on the East India Company, to produce their original transfer books, because copies from them could not be read in evidence, alledging that the copies of nothing but records are admissible where the originals can be produced. But the court denied the rule, and mentioned several instances where copies of matters not of record are admissible, as copies of courts roll, parish registers, &c. and copies of journals of the house of Commons, as in Birt v. Barton, 1 Dougl. 166 (174). Vide R. v. Gordon, 573 (593), n. 3. And the court added, that the reason ab inconvenienti for not producing records, applied with still greater force to such public books as the transfer books of the East India Company, for the utmost confusion would arise if they could be transported to any the most distant part of the kingdom whenever their contents were thought material on the trial of a cause. The court granted a rule to shew cause why copies of those entries in the transfer books, which the party meant to make use of, should not be taken and read in evidence on the trial; the rule to be served both on the solicitor for the company and the opposite party. But the correct principle seems to be laid down by Lord Holt, in Lynche v. Clerke, 3 Salk. 134, that whenever an original (b) Upon the trial of Lord George is of a public nature, and would be evi

dence

evidence, for the rule demands the best evidence the nature of the thing admits, and the further off any thing lies from the first original truth, the weaker must be the evidence; besides, there must be a chasm in the proof; for it cannot appear that the first was a true copy.

These copies are two-fold;

1. Under seal.

2. Not under seal.

First, Under seal, and they are called exemplifications, and are of better credit than any sworn copy: for the courts of justice, that put their seals to the copy, are supposed more capable to examine, and more exact and critical in their examination, than another person is or can be.

Exemplifications are two-fold;

1. Under the broad seal.

2. Under the seal of the court.

First, Under the broad seal; and such exemplifications are of themselves records of the greatest validity, and to which the jury ought to give credit under the penalty of an attaint.

When a recordis exemplified under the broad seal, it must either be a record of the court of chancery, or be sent for into the court of chancery by certiorari, which is the centre of all the courts, and from thence the subject receives a copy under the attestation of the great seal. (a)

dence if produced, an immediate sworn copy thereof will be evidence. R. v. Gordon, 2 Dougl. 572 (593) n. In proving a copy of a record, it is enough if the person producing it swear that he examined the copy whilst another person read the original, it is necessary that he should have himself read the original, but the other side may show it is not a true copy. Reid v. Sheriff of Sussex, 1 Camp. 469. In this case defendant produced as evidence a book, purporting to be a collection of treaties concluded by America, which was declared to be published by authority there, as a regular copy of the archives in Washington, and he would have proved by the American minister resident at this court that it was the rule of his conduct. But Lord Ellenborough refused to admit.

If

this evidence, and held that it was necessary to have a copy examined with the archives in America. He said, he would not have admitted a book of treaties with Spain, proved to have been printed by the king's printer there. Richardson v. Anderson, 1 Camp. 65, (n).

(a) Vide Gilb. Evid. 14. 3 Inst. 173. Such an exemplification is the only evidence where the record is put in issue by a plea of nul tiel record, in an equal or inferior court to that which gave the judgment. But if the record be put in issue in an action in a superior court to that in which it is, the superior court may issue a certiorari to the inferior court to eertify it. Vide Hewson v. Brown, 2 Burr. 1034; and if a record of the same court be denied, the record itself is inspected by the judges, (Tidd's

Pract.

record of the surrender [*227 ] recital of such surrender

If letters patent be given in evidence, in which it is recited that a certain office was before granted to J. S. and that J. S. surrendered it to the king, who accepted the same, and granted it to J. D. this is not enough to avoid the title of J. S. but the must be shewn, or a true copy of it, for the is not the best evidence the nature of the thing will admit; and it would be of dangerous consequence, if by such sort of suggestion, a man's title might be avoided. (Meade v. Lenthall. Salisbury v. Spencer, M. 1637. 2 Rol. Abr. 678.) But if letters patent were given in evidence whereby, in consideration of the surrender of former letters patent, the king grants a particular estate to the party; this would be good proof of a surrender, for the taking of an estate by the second letters patent is itself a surrender of the first: now the second letters patent are the best proof of taking such estate; and then the surrender is by operation and construction of law. (2 Rol. Abr. 681 (C.) pl. 5.) And in the case first put, if the defendant will take advantage of the recital of a former grant as proof of such former grant, he will be bound by the recital of the surrender; for if he will take any advantage of the recital he must admit the whole; but if he produce a former patent, that will put the plaintiff to produce the surrender. (Montague v. Preston, E. 1691. 2 Vent. 170.) So if letters patent recite a former grant to another, and

Pract. 690, edit. 3.) Leyfield's Ca. 10 Co. 90. Abbot of Strata Marcella's Ca. 9 Co. 30. Co. Lit. 117 (b). Bro. Tr. pl. 30; and the jury are bound to credit such an exemplification. Yet when the record, being a mere inducement to the action, forms only a part of the evidence to the jury, as in escape, then the examined copy shall be sufficient evidence of it. Rigg v. Wharton, Palm. 524. So in debt on a bail bond by the sheriff's assignee, plaintiff alledged a bill of Middlesex, issued in the original action, which defendant denying, plaintiff replied, that "the writ appeared by the records of the court,' prayed an inspection of them. On demurrer, the court held that the issuing of a writ from another court as an original out of chancery is never a record in B. R. till the return is filed, but the issuing of a writ from B. R. is always a matter of record on the roll of that court. Whitmore v.

and

grant

Rooke, Say. 299, and the cases there
cited.

Every matter that can be tried by
the record itself shall be so tried,
and the party shall not bring it ad
aliud examen. Foster v. Cale, 1 Stra.
76.

All matters of fact connected with a record shall be tried by a jury. Hoe v. Marshall, Cro. Eliz. 181. Abbot of Strata Marcella's Ca. sup. and Bro. Tr. pl. 113. 2 Rol. Abr. 574. pl. 7, 8. Hynde's Ca. 4 Co. 71. R. v. Knollys, Ld. Raym. 14.

As to failure of record.-If it be imperfectly set out or impartially it will do, if enough appear to prove the matter in dispute. Bro. Fail. Rec. pl. 2, 3, 4. And a variance in an immaterial part, is not fatal. Ibid. pl. 1. Coachman v. Halley, Hob. 179, Secus if in a material part. Parry v. Paris, Hob. 209. Rastall v. Stratton, 1 H. Bla. 48. Vanderbergv. Vanderberg, Hardr. 200. Serjeant's Ca.

Dy.

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