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be entered on a certificate given by the associate in Form 17, App. B.; this certificate seems to correspond to the postea.

Proof of Writs.

A writ must be proved by a copy of the record of it after its return; and this is said to be necessary whenever it is the gist of the action, (i.e.ut semble wherever it is treated as matter of record in the pleading); L. N. P. 234; otherwise the writ itself may be produced; or secondary evidence given, when its non-production is accounted for. A copy of the judgment-roll containing an award of an elegit and the return of the inquisition is evidence (and ut semb. the best evidence) of the elegit and inquisition. Ramsbottom v. Buckhurst, 2 M. & S. 565. To prove that the defendant issued a writ, it is not sufficient secondary evidence to produce the filacer's book unless it be shown that it has not been returned but is in the defendant's hands, who has had notice to produce it. Edmonstone v. Plaisted, 4 Esp. 160. Where a writ is pleaded in terms, and nul tiel record is replied, it must be proved by the production of the record, as in other cases of records; ante, pp. 101, 102. As to proof by office copy, see Rules, 1883, O. xxxvii. r. 4, and observations thereon, ante, p. 92.

A writ of summons may be proved by production of the original writ. Or by the copy thereof left with and filed by the officer under Rules, 1883, O. v., rr. 12, 13. R. v. Scott, 2 Q. B. D. 415. If the defendant has to prove the writ, it should seem that the copy served on him by the plaintiff is primary evidence; vide ante, p. 3.

Proof of Inquisitions.

Where the return to an inquisition is given in evidence, it is in general necessary to show that the inquiry was made under proper authority. On this head some distinctions are observable. Inquests of office are either by commission under the Great Seal, as offices of entitling, &c. ; or by commission or writ under the seal of the Exchequer; or they are taken ex-officio, as by coroners, escheators, &c. The returns made under any of the above special commissions, or writs, are generally inadmissible as evidence, unless the commission be proved, or the non-production of it accounted for. But inquisitions taken ex-officio by officers acting under a general commission or appointment, as escheators, &c., seem to be admissible on principle, without further evidence of authority than that they were acting as such officers. See generally as to the nature of inquests of office, 3 Bl. Com. 258; 16 Vin. Ab. 79, tit. Office.

In the case of an inquisition post mortem, and such private offices, the return cannot be read without also reading the commission under which it was taken; unless, as it seems, the inquisition be old. 12 Vin. Ab. Ev. (A. b. 42). In cases of more general concern, such as the return to the commission in Henry VIII.'s time to inquire of the value of livings, the commission is said to require no proof. B. N. P. 228. So an ancient extent of crown lands found in the proper office, purporting to have been taken by a steward of the king's lands, and following in its form the direction of the statute 4 Edw. 1, stat. 1, will be presumed to have been taken under competent authority, though the commission cannot be found. Rove v. Brenton, 3 M. & Ry. 164; S. C., 8 B. & C. 747. And there are many cases to show that an old commission may be presumed: see references, S. C., 3 M. & Ry. 171, 349. The book called Domesday is an inquest of this kind. An inquisition is admissible though it has become illegible in material parts. Anderton v. Magawley, 3 Bro. P. C. 208. A lost inquisition post mortem.

may be proved by a recital of it in ancient proceedings, as on a petition of right in the Coram Rege roll, where it was incidentally certified verbatim to the court of K. B. and set forth on the record. Rowe v. Brenton, 3 M. & Ry. 141, 142.

Proof of Rules or Orders of Court, and Judge's Orders.

An order (in the common law courts formerly called a rule) of a superior court, is proved by an office copy thereof, for such a copy is the order itself. Per Cur. Streeter v. Bartlett, 5 C. B. 564; Selby v. Harris 1 Ld. Raym., 745 ; Ludlow v. Charlton, 9 C. & P. 242. Where a court (as that of Insolvent Debtors) prints and circulates copies of its general rules for the guidance of its officers, one of such copies is evidence of the rules, without showing it to have been examined with the original. Dance v. Robson, M. & M. 294. But the rules must be shown to have been sanctioned by the court in order to support an indictment for perjury on an affidavit required by them. R. v. Koops, 6 Ad. & E. 198.

A judge's order may be proved either by producing the order itself signed by the judge, and delivered out in the usual way; or by proof of the rule or order, if any, making it a rule or order of court. Still v. Halford, 4 Camp. 17. An order of court, however, is not matter of record in the strict sense of the word. R. v. Bingham, 3 Y. & J. 101. The statute 8 & 9 Viet. c. 113, s. 2 (ante, p. 78), enacts that all courts are to take judicial notice of the signature of the superior judges of equity and common law attached to an official or judicial document; and by 46 & 47 Vict. c. 52, s. 137 (ante, p. 78), this provision is extended to the signatures of judges and registrars of courts having jurisdiction in bankruptcy.

Proof of Decrees and Answers in Chancery.

A decree in Chancery may be proved by an exemplification; or by an examined copy; or by production of a decretal order in paper, together with proof of the bill and answer, where such proof may be necessary. Trowel v. Castle, 1 Keb. 21; B. N. P. 244. The bill and answer need not be proved if they are recited (as they formerly were) in the decree. Ibid.; Com. Dig. Testmi. (C. 1); Accord. Wharton Peerage, 12 Cl. & Fin. 295. The rule laid down in a text-book of authority is, that where a party intends to avail himself of the contents of a decree, and not merely to prove an extrinsic collateral act (as that a decree was made by the court), he ought regularly to give in evidence the proceedings on which the decree was founded. 1 Phill. Ev. 373. And see Peake, Ev. 74; Hewitt v. Piggott, 5 C. & P. 75. Still, if the decree or order itself contains all the facts required, it has been held unnecessary to produce the bill and answer, though it is otherwise where it is material to show the particular issue raised. Thus, in an action against the sheriff for an escape under an attachment issued out of Chancery for non-payment of costs, the order for an attachment is prima facie proof of the pendency of a suit in Chancery without proof of bill and answer; and for this purpose a decree, even without a recital or other evidence of bill and answer, would be admissible. Blower v. Hollis, 1 Cr. & M. 396. This case was doubted at Nisi Prius by Ld. Abinger, C. B., in Attwood v. Taylor, 1 M. & Gr. 289, 290, where the vendor of an estate sued the vendee for interest due on the contract of sale, and the plaintiff, in order to account for laches in suing, offered in evidence an injunction in a suit of Equity by the defendant against him, restraining him from suing at law; his Lordship refused to admit the order until the bill and answer were produced. The case seems to be reconcilable with Blower v. Hollis, supra, and it is possible

Decrees and Answers in Chancery.

107 that Lord Abinger only dissented from the marginal note of the case in the above report of it. It might be that the injunction was obtained on grounds which did not relieve the plaintiff from his imputed laches. As to proof of the reversal of a decree, see ante, p. 103. As to proof of judgments of the High Court of Justice, vide ante, p. 102.

An answer in Chancery is proved by the production of the bill and answer, or by examined, or Record office, copies of them; but on proof by the proper officer that the bill has been searched for in the proper office and not found the answer may be read without the bill. Gilb. Ev. 55. A distinction was sought to be drawn between proof of answers, filed in Chancery, and affidavits, but the distinction is untenable, vide post, pp. 108, 109. Some proof of the identity of the parties is requisite. Rees d. Howell v. Bowen, M'Cl. & Y. 383, 391, 392. This may be given by a witness, who has seen the handwriting of the defendant to the original answer, though it is not produced in court. Dartnall v. Howard, Ry. & M. 169. Identity may also be inferred from intrinsic evidence; as if the name, description, and character of the party to the action agree with the name and description of the party answering in equity, it is prima facie evidence of identity. Hennell v. Lyon, 1 B. & A. 182. See also Garvin v. Carroll, 10 Ir. L. R. 330, and the recent case of Hubbard v. Lees, L. R. 1 Ex. 255, 257 (cited post, p. 118, decided on a family register), whence it seems that such evidence is sufficient for the jury, and where the jury are satisfied with the identity the court will not interfere. See, however, Rees d. Howell v. Bowen, supra; Burnand v. Nerot, 1 C. & P. 578; and Proof of Deeds, dc., post, p. 127.

An answer, offered in evidence as an admission of the party on oath, is sufficiently proved by an examined copy of it without proof of a decree, or of the party's handwriting. Dartmouth, Ly. v. Roberts, 16 East, 334. See Fleet v. Perrins, L. R. 3 Q. B, 536, post, p. 108. So when it is used to contradict the party making it, or to cross-examine him on it, vide post, pp. 168, 169. A letter written by the plaintiff's agent, referred to by the plaintiff in his answer to a bill in Chancery filed by a third person, and deposited by consent of parties with a clerk in court, was evidence against the plaintiff in an action at law, without reading the answer in Chancery. Long v Champion, 2 B. & Ad. 284. But quære, whether-where A. had obtained sight of a letter or document of B. by means of a bill of discovery, to which B. had put in an answer with the document annexed-A. could read it in evidence without also reading the whole answer? See S. C. The mere fact that the document was obtained by a bill of discovery is not enough to exclude it, or to oblige the party who uses it to put in the bill and answer. Sturge v. Buchanan, per Cur., 10 Ad. & E. 605.

Where an answer is read as a mere admission by the defendant, he has hitherto been entitled to require that as well the bill as the interrogatories shall be also read as part of the plaintiff's case. Pennell v. Meyer, 2 M. & Rob. 98. The principle is, that the questions as well as answers should be read, and that in equity a defendant was bound to answer not only the interrogatory part, but also the narrative part of the bill. Ibid. But defendants in equity were relieved by the Gen. Order, 26 Aug. 1841, and by the Act 15 & 16 Vict. c. 86, s. 12, from answering except to interrogatories. This might perhaps dispense with the reading of anything but the interrogatories; but as the answer was not necessarily confined to the interrogatories (see sect. 14), it is still a question how far the reading of the bill, if required by the defendant, may be necessary? See Fleet v. Perrins, L. R., 3 Q. B. 536 ; L. R., 4 Q. B. 500, Ex. Ch., and Admissions on compulsory process, ante, p. 60. Where a bill, answer, and decree are put in evidence to prove a fact which appears on the face of those documents to have been in issue, the

party producing them is not bound also to put in the depositions as part of his own case. Laybourn v. Crisp, 4 M. & W. 320.

Proof of Depositions and Affidavits.

A deposition used by a party to a suit in Chancery, for the purpose of proving certain facts, is primary evidence of the same facts against the same party in an action by a stranger. Richards v. Morgan, 4 B. & S. 641; 33 L. J., Q. B. 114. But such depositions are not, in general, admissible without proof of the bill and answer; B. N. P. 240; Gilb. Ev. 62; unless no bill or answer can be found; Gilb. Ev. 64; Rowe v. Brenton, 8 B. & C. 765; Byam v. Booth, 2 Price, 234, n.; Bayley v. Wylie, 6 Esp. 85; or unless the depositions are offered in evidence as containing an admission merely, or for the purpose of contradicting a witness. 1 Phill. Ev. 375. The bill and answer are only required to satisfy the judge that the depositions are admissible by enabling him to see what was in issue; and the opposite counsel therefore has no right to have them read, or to comment upon them to the jury. Chappell v. Purday, 14 M. & W. 303.

In general, depositions taken in perpetuam rei memoriam were not evidence at law unless an answer had been put in and proved; but if the defendant in equity were in contempt, or had neglected to take advantage of an opportunity to cross-examine, the deposition might be read on proof of the bill, without the answer; B. N. P. 240; Lancaster v. Lancaster, 6 Sim. 439; so in case of a bill filed for a commission to examine witnesses de bene esse; Cazenove v. Vaughan, 1 M. & S. 4. Whether the deposition was taken on a bill to perpetuate testimony, or a bill to examine de bene esse (which are distinct proceedings), it was not evidence without proof of the death or inability of the witness to attend; but a court of equity might have made a special order to read it without such proof, and without proof of the bill, answer, or other proceedings. See Jeremy's Equity Jurisdiction, 271, 280, and the authorities there cited.

Affidavits taken by the standing commissioners of the superior courts may be proved without producing the commission. The acting as such is prima facie sufficient proof of it. R. v. Howard, 1 M. & Rob. 187. The handwriting of the commissioner must be proved, and that of the deponent, if the original is produced. But if the affidavit be filed in a superior court of law or equity an examined copy, or (in the same court and cause), an office copy of it, is in civil cases evidence against the party by whom it has been used or acted on, without proof of the handwriting of the person making it. Fleet v. Perrins, L. R., 3 Q. B. 536; L. R., 4 Q. B. 500, Ex. Ch. ; B. N. P. 229. And now see Rules, 1883, O. xxxvii. r. 4, as to office copies, and observations thereon, ante, p. 92. It has even been held that an examined copy of the affidavit of a defendant, used by him in a cause and filed, was sufficient evidence of the affidavit on an indictment for perjury. R. v. James, 1 Show. 397; and see 3 Doug. 78, n.; although the present practice seems to require that the original affidavit should in such a case be produced; 2 Taylor Evid. § 1379. Where an examined copy was offered in evidence of an affidavit filed in Chancery in another cause, and alleged to have been made by the defendant, but not shown to have been used or acted on by him, it was held inadmissible without proof of the deponent's identity with the defendant. Rees d. Howell v. Bowen, M'Cl. & Y. 383. In this case a distinction was taken by the court between answers which formed part of the records, and were not allowed to be removed from the files of the court, and affidavits which could be removed. But no such distinction in fact exists, for the affidavits form as

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Depositions and Affidavits.—Prior Oral testimony.

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much part of the proceedings as the answer. Garvin v. Carroll, 10 Ir. L. R. 330, per Crampton, J. And on the ground that examined copies are good evidence in civil cases at law, the Court of Chancery will not allow its documents to be removed except in aid of criminal prosecutions. Att.-Gen. v. Ray, 6 Beav. 335; 1 Daniell's Chan. Prac. 5th ed. 769. It seems, therefore, that a deposition or affidavit filed in the course of Chancery proceedings is to be proved in the same way as an answer; vide ante, pp. 106, 107.

;

Under the act 15 & 16 Vict. c. 86, the examination or testimony of parties or witnesses in equity was taken either orally before an examiner or by answers to interrogatories; or by affidavits sworn before persons qualified to take them. The parties to the suit were examined under interrogatories filed in the record office of the court, to which the answers were also returned. See sects. 12, 19, 25. Oral examinations were reduced to writing by the examiner in a narrative form, and returned, with the proper examinations, to the same office. Sects. 31, 32, 34. Office copies of examinations are delivered under sect. 4. It should seem that these office copies, purporting to be signed and certified as true copies by the proper officer, are admissible as evidence in all courts by stat. 14 & 15 Vict. c. 99, s. 14; ante, p. 96.

The question as to whether a witness can be cross-examined on an examined or office copy of an affidavit or other document filed in court is considered under Cross-examination of witnesses, post, p. 168.

As to proof under the J. Acts by affidavit or depositions in the action, vide post, p. 174, et seq.

By Rules, 1883, O. xxxi. rr. 1, 4, 8, either party may, by leave of a judge, deliver interrogatories to the opposite party, which he is bound to answer by affidavit within ten days. Where relief is sought on the ground of fraud or breach of trust no such leave is required. An office copy of the answer to the interrogatories will, as against the party making it, be sufficient evidence of the answer at the trial; see Fleet v. Perrins, L. R., 3 Q. B. 536; L. R., 4 Q. B. 500, Ex. Ch. cited, ante, p. 108, although the answering party may, if he think fit, put in evidence the interrogatories to which the answer is made. S. C. If the answer is not in the same court and cause an examined copy of the answer will be sufficient evidence. S. C. And now see Rules, 1883, O. xxxvii. r. 4, as to office copies, and observations thereon, ante, p. 92. It seems that such examined or office copy will be admissible for the purpose of cross-examination or contradiction of the deponent; vide post, pp. 168, 169. In case of an insufficient answer, the party interrogated may, by r. 11, be ordered to be examined orally. A party may be examined as to a lost document; but the loss must be proved at the trial. Wolverhampton Waterworks Co. v. Hawksford, 5 C. B., Ñ. S. 703; 28 L. J., C. P. 198. By r. 24, " Any party may at the trial of a cause, matter or issue, use in evidence any one or more of the answers, or any part of an answer, of the opposite party to interrogatories without putting in the others, or the whole of such answer: provided always that in such case the judge may look at the whole of the answers" and order answers connected with those put in, also to be put in.

By O. lxv., r. 54, the copy of an affidavit of discovery of documents, "delivered by the party filing it may be used as against such party."

Proof of Oral Testimony on a former Trial.

What a witness, since dead, has sworn on a trial between the same parties may be given in evidence either from the judge's notes, or from notes that

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