proceedings of inferior courts, not of record, may be proved by the minute book in which the proceedings are entered, as in the case of a judgment in the county court. Chandler v. Roberts, Peake, Ev. 80, 5th ed. So an examined copy of the minutes will be sufficient. Per Holt, C. J., Comb. 337; 12 Vin. Ab. Evid. A. pl. 26.

If the proceedings of the inferior court are not entered in the books, they may be proved by the officer of the court, or by some person conversant with the fact. See Dyson v. Wood, 3 B. & C. 451, 453. (1)

Proof of probates and letters of administration.] The probate of a will is proved by the production of the instrument itself; and proof of the seal of the court is not necessary. In order to prove the title of the executor to personal property, the probate must be given in evidence; it is not sufficient to produce the will itself. Pinney v. Pinney, 8 B. & C. 335. When the probate is lost it is not the practice of the Ecclesiastical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shepherd v. Shorthose, 1 Str. 412. To prove the probate revoked, an entry of the revocation in the book of the Prerogative Court is good evidence. Ramsbotham's case, 1 Leach, 30 (n.), 3d ed.

Administration is proved by the production of the letters of administration granted by the Ecclesiastical Court. Kempton v. Cross, Rep. Temp. Hardw. 108. B. N. P. 246. So the original book of acts of that court directing the granting the letters is evidence. B. N. P. 246. And an examined copy of such act book is also evidence. Davis v. Williams, 13 East, 232.

Proof of foreign laws.] The written law of a foreign state must be proved by a copy of the law properly authenticated. Boehtlinck v. Schneider, 3 Esp. 58; Clegg v. Levy, 3 Camp. 166. It does not seem necessary that the copy should have been examined with the original. See cases post, tit. Bigamy. The unwritten law of a foreign state (having first been ascertained to be part of the unwritten law by witnesses professedly conversant with the law of the state) may be proved by the parol evidence of witnesses possessing competent legal skill. Millar v. Heinrick, 3 Camp. 155.

The witness to prove a foreign law must be a person peritus virtute officii, or virtute professionis. A Roman Catholic bishop, who held in this country the office of a coadjutor to a vicar apostolic, and as such was authorized to decide on cases affected by the law of Rome, was therefore held, in virtue of his office, to be a witness admissible to prove the law of Rome as to marriage. Sussex Peerage case, 11 Cla. & Fin. 85; 1 C. & K. 213. Such a witness may refer to foreign law-books to refresh his memory or to correct or confirm his opinion, but the law itself must be taken from his evidence.

*A judgment duly verified by a seal proved to be that of the foreign [ *205] court, is presumed to be regular and agreeable to the foreign law, until the contrary is shown. Alivon v. Furnival, 4 Tyr. 757; 1 C., M. & R. 277.

Proof of public books and documents.] Wherever the contents of a public

(1) Proceedings in civil suits before justices of the peace are within the rule, and sworn copies are evidence. Welsh v. Crawford, 14 Serg. & Rawle, 440.

с

Eng. C. L. Reps. x. 149.

d Id. xv. 230.

• Id. xlvii. 213.

book or document are admissible in evidence, as such, examined copies are likewise evidence, as in the case of registers of marriages, deaths, &c.(1) Vide post. Thus an examined copy of an order in council is sufficient, without the production of the council books themselves. Eyre v. Palsgrave, 2 Campb. 606. So copies of the transfer books of the East India Company; Anon. 2 Dougl. 593 (n.); and of the Bank of England; Marsh v. Collnett, 1 Esp. 655; Bretton v. Cope, Peake, N. P. C. 30; of a bank note filed at the bank; Mann v. Cary, Salk, 155; so the books of commissioners of land-tax; King's case, 2 T. R. 234; or of excise; Fuller v. Fotch, Carth. 346; or of a poll-book at elections; Mead v. Robinson, Willes, 424. In one case the copy of an agreement contained in one of the books in the Bodleian Library (which cannot be removed) was allowed to be read in evidence. Downes v. Moreman, Bunb. 189; 2 Gwill. 659.

The books of the King's Bench and Fleet prisons, when they are admissible, are not such public documents that a copy of them may be given in evidence, for they are not kept by any public authority. Salte v. Thomas, 3 B & P. 190.

Corporation books may be given in evidence, as public books, when they have been kept as such, the entries having been made by the proper officer, or by a third person, in his sickness or absence. Mothersell's case, 1 Str. 93. But a book containing minutes of corporation proceedings, kept by a person not a member of the corporation, and not kept as a public book, is inadmissible. Id. An examined copy of a corporate book is evidence. Brocas v. Mayor of London, 1 Str. 308; Gwyn's case, 1 Str. 401.(2)

It is not settled whether the attesting witness of a corporation deed need be called; Doe v. Chambers, 4 A. & E. 410; or whether such a deed proves itself after thirty years. Rex v. Bathwick, 2 B. & Ad. 648.5

Inspection of corporation books and other public writings is granted in civil actions, but not in criminal cases, where it would have the effect of making a defendant furnish evidence to criminate himself. Heydon's case, 1 W. Bl. 351; Purnell's case, Id. 37; 1 Willes, 239; 2 Str. 1210.

Proof of public registers.] Public registers, as of births, marriages, or deaths, are proved either by the production of the register itself or of an examined copy. B. Ñ. P. 247. Parol evidence of the contents of a register has been admitted; yet the propriety of such evidence, says Buller, may well be doubted, because it is not the best evidence the nature of the case is capable of. B. N. P. 247. A copy of a record or of a public book is not, in fact, secondary evidence; and therefore the opinion of Mr. Justice Buller appears to be correct. A register is only one mode of proof of the fact which it records, and the fact may be proved [*206] without producing the *register, by the evidence of persons who were present. Thus, upon an indictment for bigamy, it was held sufficient to prove

(1) Official books and papers must be proved by producing an exemplified copy from the proper office; or if circumstances require that the originals should be produced, they must be brought from the office and verified by the officer who has the keeping of them, or his clerk, or some one specially authorized by him for that purpose. They cannot be verified by one who has no connection with the office, but who happens to know them. Hackenbury v. Carlisle, 1 Watts & Serg. 383.

(2) Owing v. Speed, 5 Wheat. 420. They are evidence in disputes between its members, but not against strangers. Commonwealth v. Woelper et al, 3 Serg. & Rawle, 29. Jackson v. Walsh, 3 Johns. 226. Must be kept by the proper officer. Highlands Turnpike Co. V. M.Keen, 10 Johns. 154.

Eng. Com. Law Reps. xxxi. 99.

Id. xxii. 152.

the marriage, by the evidence of a person who was present at it, without proving the registration, license, or banns. (1) Alison's case, Russ. & Ry. 109.h

In proving a register, some evidence of the identity of the parties must be given, as by proof of the handwriting, for which purpose it is not necessary to call the subscribing witnesses. Per Lord Mansfield, Birt v. Barlow, 1 Dougl. 174. The identity is usually established by calling the minister, clerk, or some other person who was present at the ceremony.

By the 52 Geo. 3, c. 146 (which is still in force for the registration of births and burials by clergymen of the church of England), it is provided that verified copies shall be annually sent to the registrar of the diocese. It seems that such verified copies being public documents, are evidence as well as the originals, and may be proved by examined copies. Per Alderson, B., Walker v. Beauchamp, 6 C. & P. 552. But is otherwise of the returns enjoined by the canons of 1603, which can only be used as secondary evidence. S. C.

By the 6 & 7 Wm. 4, c. 86, s. 38, for registering births, marriages, and deaths in England, certified copies of entries purporting to be sealed or stamped with the seal of the office of the registrar general, shall be evidence of the birth, death, or marriage to which they relate, without further proof of such entries.

By the 3 & 4 Vict. c. 92, certain non-parochial registers of births, marriages, and deaths, transferred to the general register office, or certified extracts therefrom, are made admissible in evidence; but in criminal cases the original registers must (by s. 17) be produced.

As to marriage registers in Ireland, see the 7 & 8 Vict. c. 81.

For the act amending the law of marriages, see post, Bigamy.

Proof of ancient documents, terriers, &c.] In many cases, ancient documents are admitted in evidence, to establish facts which, had they been recently made, they would not have been allowed to prove. These documents prove themselves, provided it appear that they are produced out of the proper custody. The proper repository of ecclesiastical terriers or maps is the registry of the bishop or archdeacon of the diocese. Atkins v. Hatton, 2 Anst. 387; Potts v. Durant, 3 Anstr. 795. On an issue to try the boundaries of two parishes, an old terrier or map of their limits, drawn in an inartificial manner, brought from a box of old papers relating to the parish, in the possession of the representatives of the rector, was rejected, not being signed by any person bearing a public character or office in the parish. Earl v. Lewis, 4 Esp. 3.

So also with regard to private ancient documents, it must appear that they came from the custody of some person connected with the property. Thus, where upon an issue to try a right of common, an old grant to a priory, brought from the Cottonian MSS. in the British Museum, was offered in evidence, it was rejected by Lawrence, J., the possession of it not being sufficiently accounted for nor connected with any one who had an interest in the land. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. So a grant to the abbey of Glastonbury, contained in an ancient MS., deposited in the Bodleian Library, entitled Secretum Abbatis, was rejected, as not coming from *the proper repository. Mitchell v Rabbets, cited Id. [*207] See also Barber's case, 1 C. & K. 434.j

(1) Lessee of Hyam v. Edwards, 1 Dall. 2. Stoever v. Lessee of Whitman, 6 Binn. 416. Jacocks v. Gilliam, 2 Murphy, 47. Huntley v. Comstock, 2 Root, 99. Jackson v. Boneham, 15 Johns. 225. Sumner v. Sebee, 3 Greenl. 223.

1 Eng. C. C. 109.

i

Eng. Com. Law Reps. xxv. 539.

j Id. xlvii. 434.

Proof of seals.] Where necessary, a seal must be proved by some one acquainted with it, but it is not requisite to call a witness who saw it affixed. Moises v. Thornton, 8 T. R. 307. Some seals, as that of London, require no proof. Doe v. Mason, 1 Esp. 53. So the seal of the superior ecclesiastical courts, and other superior courts, ante, p. 198. But the seal of a foreign court must be shown to be genuine. Henry v. Adey, 3 East. 221. So of the bank of England. Semb. Doe v. Chambers, 4 A. & E. 410. So of the apothecaries' company, Chadwick v. Bunning, R. & Moo. 306.(1)

For the provisions of the 8 & 9 Vict. c. 113, dispensing with proof of the seals of corporations, joint stock or other companies, see ante, p. 196.

Although the seal need not be shown to be affixed by the proper person, yet the deed may be invalidated by proof of the seal being affixed by a stranger, or without proper authority. Clarke v. Imperial Gas Co., 4 B. & Ad. 315.TM

Proof of private documents-attesting witness.] The execution of a private document, which has been attested by a witness subscribing it, must be proved by calling that witness, although the document may not be such as by law is required to have the attestation of a witness. Thus, if a warrant of distress has been attested, the attesting witness must be produced. Higgs v. Dixon, 2 Stark. 180. And even where the defendant himself was proved to have admitted the execution, in answer to a bill in chancery, this was held insufficient, without calling the attesting witness. Call v. Dunning, 4 East, 53. See also Abbott v. Plumbe, 1 Dougl. 217.

Proof of private documents-attesting witness—when proof waived.] Where the attesting witness is dead; Anon. 12 Mod. 607; or blind; Wood v. Drury, 1 Lord Raym. 734; Pedley v. Paige, 1 Moo. & Rob. 258; or insane; Cuerie v. Child, 3 Camp. 283; or infamous; (but now see the 6 and 7 Vict. c. 85, s. 1, ante, p. 134;) Jones v. Mason, 2 Str. 833; or absent in a foreign country, or not amenable to the process of the superior courts; Prince v. Blackburn, 2 East, 252; as in Ireland; Hodnett v. Foreman, 1 Stark, 90; or where he cannot be found, after diligent inquiry; Cunliffe v. Sefton, 2 East. 183; in all these cases evidence of the attesting witness's handwriting is admissible. As to the nature of the inquiry, see Rosc. Dig. Ev. N. P. 88, 4th and 5th ed. (2)

(1) The seal of a private corporation must be proved. Den v. Vreelandt, 2 Halst. 352. Leazure v. Hillegas, 7 Serg. & Rawle, 313. Foster v. Shaw, ibid. 156. Jackson v. Pratt, 10 Johns. 381.

(2) Upon the subject of proof by attesting witnesses, see 1 Stark. on Ev. new ed. 320, and

notes.

In order to prove the execution of a paper by secondary evidence, it is only necessary for the party to show that he has neglected nothing which afforded a reasonable hope of procuring the testimony of the subscribing witness. Conrad v. Farrow, 5 Watts, 536.

The absence of a witness from the State, so far as it affects the admissibility of secondary testimony, has the same effect as his death. Allen v. Borghaus, 8 Watts, 77.

When there is other proof that witness is dead or absent, it is unnecessary to take out a subpoena. Clark v. Boyd, 2 Ohio, 59.

In the absence of the instrumental witness, or of proof of the handwriting of the witnesses and parties, the next best evidence is the acknowledgment of the parties. Ringwood v. Bethlehem, 1 Green, 221.

The confession of a party that he executed a paper, has been held not to be secondary to proof of handwriting. Conrad v. Farrow, 5 Watts, 536.

In order to prove an attested deed, the subscribing witness must be called if within the reach of process, and in a situation to be sworn; and neither the testimony of the party to Eng. C. L Reps. xxxii. 99. Id. xxii. 447. Id. xxiv. 64. ■ Id. iii. 304. Id. ii. 309.

Some evidence must also be given in these cases of the identity of the executing party; and although there are cases to the contrary, it is now held that mere identity of name is not sufficient proof of the identity of the party. Whitelock v. Musgrave, 1 Crom. & Mee. 511; 3 Tyr. 541, S. C.

The illness of a witness, although he lies without hope of recovery, is no sufficient ground for letting in evidence of his handwriting. Harrison v. Blades, 3 Campb. 547.

Formerly where a witness was interested at the time of his attesting an instrument, it was the same as if it were unattested, and the execution must have been proved by evidence of the handwriting of the party executing. Swire v. Bell, 5 Tr. 371. But a party, who, with a knowledge of the interest, [208] had requested the witness to attest, could not afterwards object to him on the ground of interest. Honeywood v. Peacock, 3 Campb. 196. Where a witness became interested after the attestation, in general, proof of his handwriting was admissible, as where he became administrator. Godfrey v. Norris, 1 Str. 34; 2 East. 183. But in some cases, as of a witness becoming partner, it was held otherwise. Hovill v. Stephenson, 5 Bingh. 493. But now, however, a witness is no longer incompetent on the ground of interest, see ante, p. 134.

Where the name of a fictitious witness is inserted; Fasset v. Brown, Peake, 23; or where the attesting witness denies all knowledge of the execution; Talbot v. Hodgson, 7 Taunt. 251; Fitzgerald v. Elsee, 2 Campb. 635; evidence of the handwriting of the party is sufficient proof of its execution. So where an attesting witness subscribes his name without the knowledge or consent of the parties. McCraw v. Gentry, 3 Campb. 232.

Where there are two attesting witnesses, and one of them cannot be produced, being dead, &c., it is not sufficient to prove his handwriting, but the other witness must be called. Cunliffe v. Sefton, 2 East, 183; McGraw v. Gentry, 3 Campb.

the instrument, nor his admissions out of court, can be received as a substitute. Hollenback v. Fleming, 6 Hill, 303.

If a subscribing witness to a bond be interested at the time of attestation, and dead at the time of trial, evidence of his handwriting is not admissible to prove the execution of the bond. Amherst Bank v. Root, 2 Metcalf, 522.

Where it appeared that the subscribing witness to a bond had been clerk of the county court of a large, populous and wealthy county, and had been dead only twenty-five years, it was held not to be sufficient for admitting testimony of the obligor's handwriting, to show, by one witness only, that he did not know the subscribing witress's handwriting and did not know of any person who had such knowledge. M Kinder v. Littlejohn, 1 Iredell's N. C. Law Rep. 66.

Where the subscribing witnesses to an instrument reside without the limits of the State, it is not necessary to produce their testimony. Emery v. Twombly, 17 Maine, 65.

If the attesting witness to a promissory note be called and does not prove the handwriting of the name to be his, it is competent to prove it by the testimony of other witnesses. Quimby V. Buzzell, 16 Maine, 470.

Where an instrument is read in evidence on proof merely of the handwriting of a deceased attesting witness, the adverse party may give evidence of the witness's bad character at the time of attesting, or show his subsequent declarations that the instrument was a forgery. So, the entries of a clerk, when resorted to as a substitute for his oath, may be impeached by proof of his bad character for honesty. Losee v. Losee, 2 Hill, 609.

The case of Jackson v. Phillips, (9 Cowen, 94,) so far as it holds that one who affixes his name to an instrument after its execution, without being requested, is a good subscribing witness, disapproved. Hullenback v. Fleming, 6 Hill, 303.

Proof of the handwriting of deceased subscribing witnesses to a deed is not sufficient evidence of its execution to entitle it to be read to the jury, where the deed on its face excites suspicion of fraud. Brown v. Kimball, 25 Wend. 259.