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So communications, though made to official persons, are not privileged so as to justify the exclusion of the evidence, where they are not made in the discharge of any public duty; as, for instance, a letter from a private individual to the Secretary of the Postmaster General, complaining of the conduct of the guard of a mail. Blake v. Pilfold, i Moo. and R. 198.

What matters are privileged-matters of state.) Matters communicated confidentially, in furtherance of the administration of justice, are, as it has been stated, privileged from disclosure, and upon the sarne grounds, matters of state, as official communications between different members or officers of government receive a like protection (1). Some cases of this kind have been already mentioned, ante, p. 182. So where, on a trial for high treason, Lord Grenville was called upon to produce a letter, intercepted at the post-office, and which was supposed to have come to his hands, it was ruled that he could not be required to produce it, for [ *184 ] that secrets *of state were not to be taken out of the hands of his majesty's confidential subjects. Case cited by Lord Ellenborough, Anderson v. Hamilton, 2 Br. and Bingh. 157, (n.) (a). What passes in parliament is in the same manner privileged. Thus, on a trial for a libel upon Mr. Plunkett, a member of the Irish parliament, the speaker of the Irish house of commons being called and asked, whether he had heard Mr. Plunkett deliver his sentiinents in parliament on matters of a public nature, Lord Ellenborough said that the speaker was warranted in refusing to disclose what had taken place in a debate in the house of commons. He might disclose what passed there, and if he thought fit to do so, he should receive it as evidence. As to the fact of Mr. Plunkett having spoken in parliament, or taken any part in the debate, he was bound to an

That was a fact containing no improper disclosure of any matter. Plunkett v. Cobbett, 5 Esp. 136, 29 How. St. Tr. 71, 72, S. C. On the same ground, viz. that the interests of the state are concerned, an officer of the Tower of London was not allowed to prove that a plan of the Tower, produced on behalf of the prisoner, was accurate. Watson's case, 2 Stark. N. P. C. 148 (6)(2).

The two following cases, however, are at variance with the rule above stated. Upon the trial of Lord Strafford, the confidential advice given by that nobleman to the king, at the council table, was allowed to be disclosed, and given in evidence against him. Strafford's case, i St. Tr. 723, fo. ed. And in the case of the Seven Bishops, 4 St. Tr. 346, fo. ed., the clerk of the privy council was compelled to state what passed at the council-board, and even what the king himself said, although the counsel for the crown objected to it. However, in Sayer's case, 6 St. Tr. 288, fo. ed., it seems to have been considered, that minutes taken before the privy council were not to be divulged, and it cannot be doubted that at

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(1) The officer, who apprehended the prisoner, is not bound to disclose the name of the person from whom he received the information which led to the prisoner's apprehension. The U.S. o. Moses, 4 Wash. C. C. Rep. 726. But a police officer will be compelled to answer at the instance of the commonwealth. Trial of Mina, Pamph. p. 9.

(2) The secretary of state is not bound to disclose any official confidential communications. But the fact whether a commission has been in his office or not, he is bound to disclose. Marbury o. Madison, 1 Cranch, 142. See 1 Burr's Trial, 180. Gray o. Pentland, 2 S. & R.

23.

(a) Eng. Com. L. Rep. vi. 49, n. (b) Id. ii. 288.

the present day the practice adopted in the case of Lord Strafford and of the Seven Bishops would be overruled, as contrary to the principles of the law of evidence, and injurious to the public interests.

What matters are privilegedwhere oath of office has been taken not to divulge. Where, for revenue, or other purposes, an oath of office has been taken not to divulge matters which have come to the knowledge of a party in his official capacity, he will not be allowed, where the interests of justice are concerned, to withhold his testimony. Thus, where the clerk to the commissioners of the property tax being called to produce the books containing the appointment of a party as collector, objected on the ground that he had been sworn not to disclose any thing he should learn in his capacity of clerk, Lord Ellenborough clearly thought that the oath contained an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpæna. He added that the witness must produce the books, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him. Lee q. t. v. Birrell, 3 Campb. 337.

*DOCUMENTARY EVIDENCE.

( *185]

Proof of acts of parliament

185 | Probates and letters of administration 192 Records 186 Foreign laws

· 192 Office copies and copies by authorized of- Public books and documents

· 192 ficers, &c. 187 | Public registers

- 193 Inquisitions

188 Ancient documents, terriers, &c. · 194 Verdicts 188 Seals

- 194 Affidavits made in causes 189 Private documents

· 195 Proceedings in equity 190 Attesting witness

• 195 Depositions 190 | When waived

. 195 Proceedings in bankruptcy 191 | Handwriting

- 196 Proceedings of the insolvent courts 191 Proof of execution-when dispensed with 198 Judgments and proceedings of inferior Stamps

- 198 courts

191

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Proof of acts of parliament, &c.] The courts will take notice of public acts of parliament without their being specially proved, but private acts of parliament must be proved by a copy examined with the parliament roll, B. N. P. 225, unless the mode of proof be provided for by the act (1). Where there is a clause in the act, declaring that it shall be taken to be a public act, and shall be taken notice of as such by all judges, &c., without being specially pleaded, it is not necessary to prove a copy examined with the roll, or a copy printed by the king's printer, but it stands upon the same footing as a public act. Beaumont v. Mountain, 10 Bingh. 404 (a); Woodward v. Cotton, 4 Tyr. 689; 1 C. M. & R. 44. For other

(1) 1 Starkie on Ev., 196, n. 2. Ibid. n. 1. New Ed.

(a) Eng. Com. L. Rep. xxv. 183.

purposes, however, as with regard to the recital of facts contained in it, ibis clause does not give the statute the effect of a public act. Brett v. Bcales, Moo. and M. 421 (a).

A private act may contain clauses of a public nature, and then the act, [ *186 ) as far as these clauses are concerned, is to be regarded as a *public act.

Thus a clause relating to a public bighway, occurring in a private inclosure act, was held by Holroyd, J., to be provable in the same way as a public act. Utterby's case, Phill. Ev. 610.

By statute 41 G. 3, c. 90, s. 9, the statutes of England and (since the union with Scotland) of Great Britain, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted prior to the union of Great Britain and Ireland, in any court of civil or criminal jurisdiction in Ireland; and in like manner the copy of the statutes of the kingdom of Ireland, made in the parliament of the same, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted by the parliament of Ireland, prior to the union of Great Britain and Ireland, in any court of civil or criminal jurisdiction in Great Britain.

The journals of the lords and commons must be proved by examined copies. Lord Melville's case, 24 How. St. Tr. 683 : Lord G. Gordon's case, 2 Dougl. 593 (1).

Proof of records. Where there is a plea of nul tiel record, the record is proved by its production, if it be a record of the same court, Tidd. Pr. 801: if of an inferior court, by the tenor of the record, certified under a certiorari, issued by the superior court; if of a concurrent superior court, by the tenor certified under a writ of certiorari issued out of chancery, and transmitted thence by mittimus. Id.

Where nul tiel record is not pleaded, a judgment is proved either by an exemplification under the seal of the court, or by an examined copy. Such exemplifications under the seal of a public court in this country, are evidence without proof of the genuineness of the seal. Tooker v. Duke of Beaufort, Sayer, 297. But the genuineness of the seal of a foreign court must be proved. Henry v. Adey, 3 East, 221.

A record is not complete until delivered into court in parchment. Thus the minutes made by the clerk of the peace at sessions, in his minute book, are neither a record nor in the nature of a record so as to be admissible in evidence as proof of the names of the justices in attendance. Bellamy's case, Ry, and Moo. 172 (b). And where, to prove an indictment for felony found by the grand jury, the indictment itself, (which was in another court) indorsed "a true bill,” was produced by the clerk of the peace, together with the minute book of the proceedings of the sessions, at which the indictment was found, the Court of King's Bench held that in order to prove the indictment, it was necessary to have the record regularly drawn up, and that it should be proved by an examined copy. Smith's case, 8 B. and C. 341 (C). Cooke v. Maxwell, 2 Stark. 183 (d). So an allegation that the grand jury at sessions found a true bill, is not proved by the production of the bill itself with an indorsement upon it, but a record regularly made up must be produced. Porter v. Cooper, 6 C. and P. 354 (e). 4 Tyr. 456. 1 C. M. and R. 388, S. C. So it has been ruled, on

(1) 1 Starkie on Ev., New Ed. 198, n. 1. (a) Eng. Com. L. Rep. xxii. 344. (b) Id. xxi. 406. (c) Id. xv. 232. (d) Id. iii. 305.

(©) Id. XXV. 435.

an indictment for perjury, that in order to prove that *an appeal came on to be heard at sessions, it must be shown that a record was regularly made up on parchment. Ward's case, 6 C. and P. 366 (a). A plea of autre fois convict, in like manner, must be proved by the record regularly made up, and the indictment with the finding of the jury indorsed upon it by the proper officer, is not sufficient. Bowman's case, 6 C. and P. 101 (6). But in Tooke's case, 25 How. St. Tr. 446, the minutes of the court were received to prove the acquittal of Hardy. This case is distinguished by Lord Tenterden from the foregoing, on the ground that the matter proved by the minutes occurred before the same court, sitting under the same commission. 8 B. and C. 343 (c). So a judgment in paper signed by the master is not evidence, for it is not yet become permanent. B. N. P. 228. Godefroy v. Jay, 1 M. and P. 236 (d), 3 C. and P. 192 (e), S. C. In one case the minutes of the Lord Mayor's Court of London were allowed to be read as evidence of the proceedings there, the court assigning as a reason for not insisting rigidly upon the record being made up, that it was an inferior jurisdiction. Fisher v. Lane, 2 W. BI. 834. 8 B. and C. 342 ($)(1).

The mode of examination usually adopted, is for the person who is afterwards to prove it, to examine the copy while another person reads the original, and this has been held sufficient. Reid v. Margison, i Campb. 469. Gyles v. Hill, Id. 471 (n). It must appear that the original came from the proper place of deposit, or out of the hands of the officer, in whose custody the records are kept. Adamthwaite v. Synge, 1 Stark.

. 183 (g); 4 Campb. 572, S. C.

Where a record is lost, an old copy has been allowed to be given in evidence, without proof of its being a true copy. Anon. 1 Ventr. 256 ; B. N. P. 228.

With respect to the proof of records before courts of criminal justice, as where a prisoner pleads autre fois acquit to an indictment, he may remove the record by certiorari into Chancery, and have it exemplified ; but it seems to be the usual practice for the clerk of assize or clerk of the peace to make up the record, and to attend with it without writ. 2 Russ. Cr. L. 720, (n); Phill. Ev. 622, 8th ed.

Proof by office copies, and copies by authorized officers, &c.] An office copy is not evidence of the original, if the latter be in another court. Thus office copies of depositions in chancery are evidence in chancery, but not at common law, without examination with the roll. B. N. P. 229; 5 M. and S. 38. In a court of common law, an office copy has been held sufficient in the same court, and in the same cause, Dean v. Fulford, 2 Burr. 1179. And so it seems that an issue out of chancery may be considered as a proceeding in that court, and an office copy would probably be held evidence there. See Highfield v. Peake, Moo and Mal. 111 (h). There appears to be no reason for distinguishing between the effect of office copies in different causes in the same court, the principle of the admissibility being, that the court will give credit to the acts of its own officers, and accordingly it was held in one case, that an office copy

(1) Starkie on Ev. New Ed. 190, n. 1. (a) Eng. Com. L. Rep. xxv. 440. (6) Id. xxv. 300. (c) Id. xv. 233. (d) Id. xvii. 177.

(e) Id. xiv. 265. (f) Id. xv. 233. (g) Id. ii. 348. (h) Id. xxii. 264.

made *in another cause in the same court was admissible. Wightwick v. Banks, Forrest. 154.

Where there is a known officer, whose duty it is to deliver out copies which form part of the title of the parties receiving them, and whose duty is not performed till the copy is delivered, as in the case of the chirograph of a fine, and the inrolment of a deed, such copies are evidence, without proof of examination with the originals. See Appleton v. Lord Braybrooke, 6 M. and S. 37.

By the 5 & 6 Wm. 4, c. 82, the offices of chirographer, &c., are abolished, but the copies, &c., made by the officer of the C. P. now substituted, are by sect. 4 made as available in evidence as they would by law have been, it made by the former officers.

The certificate of the inrolment of a deed pursuant to the statute is a record, and cannot be averred against. Hopper's case, 3 Price, 495. A copy of a judgment purporting to be examined by the clerk of the treasury, (who is not intrusted to make copies) is not admissible without proof of examination with the original. B. N. P. 229.

A judge's order may be proved by the production of the order itself, or by an office copy of the rule by which it has been made a rule of court. Hill v. Halford, 4 Camp. 17.

Office copies of rules of court, being made out by officers of the court in the execution of their duty, are sufficient evidence without being proved to have been examined. Selby v. Harris, 1 Ld. Raym. 745; Duncan v. Scott, 1 Campb. 102. And printed copies of the rules of a court for the direction of its officers, printed by the direction of the court, are evidence without examination with the original. Dance v. Robson, Moo. and M. 294 (a).

Proof of Inquisitions.] Inquisitions post mortem and other private offices cannot be read in evidence without proof of the commission upon which they are founded, unless, as it seems, the inquisition be old (Vin. Ab. Ev. A. b. 42); but in cases of more general concern, as the minister's return to the commission in Henry the Eighth's time, to inquire into the value livings, the commission is a thing of such public notoriety that it requires no proof. Per Hardw. C., in Sir H. Smithson's case, B. N. P. 228. An ancient extent of crown lands, found in the proper office, and purporting to have been taken by a steward of the king's lands, and following the directions of the statute 4 Ed. 1. will be presumed to have been taken under a competent authority, though the commission cannot be found. Rowe v. Brenton, 8 B. and C. 747 (6).

Proof of verdicts. The mode of proving a verdict depends upon the purpose for which it is produced (1). Where it is offered in evidence merely to prove that such a cause came on for trial, the postea with the verdict indorsed is sufficient. Pitton v. Walter, 1 Str. 162. So it is sufficient to introduce an account of what a witness, who is since dead, swore at

(1) Ridgely & al. o. Spencer, 2 Binn. 70. Richardson s Lessee o. Parsons, 1 Har. & J. 253." Green v. Stone, Ibid. 405. Mahony v. Ashton, 4 Har. & M'H. 295. Rugan v. Kennedy, 1 Overton, 94. Donaldson o. Jude, 4 Bibb, 60. Hinch o. Carratt, 1 Const. Rep. 471. Felter o. Mulliner, 2 Johns. 181.

(a) Eng. Com. Law Rep. xxii. 311. (b) Id. xv. 335.

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