it, may have been made un truly, and entirely under the influence of the threat or promise. See Phillips on Evi dence, p. 52. The extent to which an examination is to be admitted, appears by the following Case: York Spring Assizes, 1814. REX . FORBES. Indictment for murder. The deposition of the deceased was offered in evidence. The constable who produced it said, that the prisoner was not present until a certain part of the deposition, distinguished by a cross, at which period he was introduced, and heard the remaining part of the examination. When it was concluded, the whole of the depositions was read over to the prisoner, that is to say, both the matter preceding and subsequent to the mark. Hardy, for the prisoner, objected to the reading of any part. Chambre, Justice.-The intention of the statute of Philip and Mary is sufficiently plain. It is, that the prisoner shall be present whilst the witness actually delivers his testimony; so that he may know the precise words he uses, and observe throughout the manner and demeanour with which he gives his testimony. I shall not admit that part of the deposition previous to the mark which was unheard by the prisoner; but that subsequent to the mark may be read. Sykes, for the prosecution. Justices of the Peace are enabled and directed to take the depositions of witnesses in cases of felony, by the statutes 1 and 2 Ph. and M. C. 13. s. 4.; and 2 and 3 Ph. and M. c. 10. 1 Hale, Pl. Cr. 305. Kel. 19. Paine's case. 1 Salk. 281, Woodcock's case. 2 Leach, Cr. C. 565. By the first of these statutes, " Justices of the Peace, when any person is brought before them for manslaughter or felony, or suspicion of manslaughter or felony, felony, being bailable by law, shall before any bailment, take the examination of the prisoner, and the examination of them who bring him, of the fact and circumstances thereof, and the same, or as much as may be material to prove the felony, shall put in writing before they make the bailment; which examination, with the bailment, the said justices shall certify at the next general gaol delivery, to be holden within the limits of their commission." 1817. REX v. WILSON. 1817. REX V. WILSON. As this statute extended only to bailable felonies, and not to cases where the justice committed a prisoner on suspicion of manslaughter or felony, in which cases, however, the examination of the prisoner and of those who brought him before the magistrate, was more necessary than where the prisoner was bailed; it was, therefore, enacted by statute 2 and 3 Ph. and M. c. 10. "that the justice, before he shall commit a prisoner brought before him on suspicion of manslaughter or felony, shall take the examination of the prisoner, and the information of those who bring him, of the fact and circumstance thereof, and shall put the same, or as much thereof as shall be material to prove the felony, in writing, within two days after the said examination; and the same shall certify in such form and at such time as they ought to do, if such prisoner so committed had been bailed." In the construction of these statutes, it seems now to be settled, Hawk. Pl. Cr. b. 2. c. 46. s. 15. that the depositions of a witness, taken upon oath, in the presence of a prisoner who has been brought before the magistrate on a charge of felony, may be given in evidence on the trial of an indictment for the same felony, if it be proved on oath, to the satisfaction of the Court, that the informant is dead, or not able to travel, or that he is kept away by the means and contrivance of the prisoner. 1 Hale, Pl. Cr. 305 and 586; and 2 Hale, Pl. Cr. 52. 1 Leach, Cr. C. 14. 2 Leach, 96. Rex v. Paine. 5 Mod. 163. and 3 T. R. 723. Provided also, that the depositions offered in evidence are proved to be the same as sworn before the justice, without any alteration. Before the statute of Philip and Mary, a deposition taken before a justice of the county, where a felony was committed, would not have been evidence, even though the witness had died, or was unable to travel. See Phillips on Evidence, 162; and Rex v. Smith, post. 1817. TH HUMBLE v. HUNT and Others. It A book in which leases were enrolled, and which was kept in the of fice of the au ditor of the bishop of Dur patent office in the county to be admissi palatine) held ble evidence to sustain the claims of a les see of the HIS was an action for the disturbance of common, by making waggon ways, &c. The defendants contended that, notwithstanding the plaintiff's right of common, the lessees of the Bishop of Durham, under whose rights they protected themselves, had been in the constant prac- ficer holding a tice of granting leases of way-leaves, &c. In order to prove the lease upon which the question arose, the defendant's counsel produced a lease granted by the bishop of Durham in 1724. was contained in a book which was kept in office of the auditor of the bishop, and was called the Enrolment Book. The witness who produced the book, stated the custom in that office to be, that when leases were granted, an original and a counterpart were executed. The original, after the counterpart was made and copied into the enrolment book, was delivered to the lessee. The counterpart executed by the tenant was lost, and the original lease was not produced. the Hullock, serjeant, for the plaintiff, objected that this book, being of a private nature, was not admissible evidence. It was in the custody of the bishop who claimed the right; and it was produced in order to make out the title of the person producing it. Could it be said, therefore, to come from an unsuspected custody. The office of the auditor was not a public office. VOL. I. 2 R The public could bishop of Durginal and the lease being lost. ham, the ori counterpart of 1817. HUMBLE v. HUNT. not, as matter of right, search at this office; a mandamus would not lie to the auditor to produce the book in question. It was not, therefore, within the analogy of the court rolls of a manor; nor did the office of auditor resemble that of the steward of a manor. The book itself was a mere register or index to the bishop's leases, and could not in any sense be regarded as a public muniment. Topping and Scarlett, contrà. The bishop was not to be regarded as a private individual The right of his see invested him with a public character. He was obliged to have an auditor and an enrolment office; and the auditor was a patent officer, recognized in the county palatine as such. All deeds relating to the rights of the bishopric were here kept; and no persons interested in any documents were prohibited from consulting them. WOOD, Baron. I consider this book as a public muniment. Search has been made for the counterpart, but it has not been found; the next best evidence, therefore, is the enrolment. This office is conducted like a public office; the auditor is a patent officer; the practice has always been to enrol leases, and I will presume this to be a correct copy. Hullock, serjeant, Brougham, and Tindall, for the plaintiff. Topping, Scarlett, Richardson, and Grey, for the defendants.. 1817. HAY and Another v. MONKHOUSE and Another. plaintiffs were of A. being indebted to assigns a ship B. to C. as a trus way of mort gage. The ship is registered de novo, in the a certificate of name of C. and on board; but troul of A., assignees un der the statute HIS was an action for money had and received. The plaintiffs were the assignees of one Mathews, a bankrupt; and the question turned tee for B. by upon the clause of the statute of James I. relating to reputed ownership. Mathews was indebted to the defendants in a large sum of money; and, previous to his bankruptcy, had assigned to a Mr. Fairbain, in trust for the bankrupts, a vessel called the Dolphin, The debt was to be paid by instalments. Upon the assignment of the vessel, the proper forms of transfer were gone through at the custom-house; and the vessel was registered de novo, in the name of Fairbain, and Mathews of 21 Jac. 1. c. continued in possession of the vessel until the 25th 19? March 1816. But a certificate of registry in Fairbain's name was put on board the ship. Mathews had engaged the captain of the vessel, and acted throughout as managing owner. From the period of the assignment to Fairbain (which was by the way of mortgage) and bore date the 22d December 1815, the vessel had made three voyages under the controul of Mathews. The first was to Rouen in January, when the certificate of registry in Fairbain's name was on board of her. The captain who navigated her to Rouen had been engaged by Mathews, and went out of his employ in the month of March 1816. Mathews then engaged another captain; and sent the vessel with a cargo of coals to Topsham in Devon |