Page images



it, may have been made un- he gives his testimony. I shall truly, and entirely under the pot admit that part of the deinfluence of the threat or pro- position previous to the mark mise. See. Phillips on Evi. which was unheard by the pri. dence, p. 52.


soner; but that subsequent to The extent to which an ex- the mark may be read. amination is to be admitted, Sykes, for the prosecution. appears by the following Case: Hardy, for the prisoner. York Spring Assizes, 1814.

Justices of the Peace are

enabled and directed to take Indictment for murder. The the depositions of witnesses in deposition of the deceased was cases of felony, by the staoffered in evidence. The con- tutes 1 and 2 Ph. and M. c. stable who produced it said, 13. $. 4.; and 2 and 3 Ph. that the prisoner was not pre- and M. c. 10. i Hale, Pl. Cr. sent until a certain part of the 305. Kel. 19. Paine's case. deposition, distinguished by a i Salk. 281, Woodcock's case. cross, at which period he was 2 Leach, Cr. C. 565. By the introduced, and heard the re. first of these statutes, “ Jusmaioing part of the examina- tices of the Peace, when any tion. When it was concluded, person is brought before them the whole of the depositions for manslaughter or felony, or was read over to the prisoner, suspicion of manslaughter or that is to say, both the matter felony, being bailable by preceding and subsequent to law, shall before any bailthe mark.

ment, take the examination llardy, for the prisoner, ob- of the prisoner, and the exajected to the reading of any mination of them who bring part.

him, of the fact and circumChambre, Justice.-The in

stances thereof, and the same, tention of the statute of Phi. or as much as may be material lip and Mary is sufficiently to prove the felony, shall put plain. It is, that the prisoner in writing before they make shall be present whilst the wit- the bailment; which examiness actually delivers his tes. nation, with the bailment, the timony; so that he may know said justices shall certify at the the precise words he uses, and next general gaol delivery, to observe throughout the man- be holden within the limits of ner and demeanour with which their commission."





As this statute extended 46. s. 15. that the depositions of only to bailable felonies, and a witness, taken upon oath, in not to cases where the justice the presence of a prisoner who committed a prisoner on sus. has been brought before the picion of manslaughter or se magistrate on a charge of fe. lony, in which cases, however, lony, may be given in evi. the examination of the pri. dence on the trial of an in. soner and of those who brought dictment for the same felony, him before the magistrate, was if it be proved on oath, to the morè necessary than where the satisfaction of the Court, that prisoner was bailed; it was, the informant is dead, or not therefore, enacted by statute able to travel, or that he is 2 and 3 Ph. and M. c. 10. kept away by the means and " that the justice, before he contrivance of the prisoner. shall commit a prisoner brought i Hale, Pl. Cr. 305 and 586 ; before him on suspicion of and 2 Hale, Pl. Cr. 52. 1 manslaughter or felony, shall Leach, Cr. C. 14. 2 Leach, take the examination of the 96. Rex v. Paine. 5 Mod. prisoner, and the information 163. and 3 T. R. 723. Pro. of those who bring him, of the vided also, that the deposifact and circumstance thereof, tions offered in evidence are and shall put the same, or as proved to be the same as much thereof as shall be ma. sworn before the justice, witha terial to prove the felony, in out any alteration. Before the writing, within two days after statute of Philip and Mary, the said examination ; and the a deposition taken before a same shall certify in such form justice of the county, where and at such time as they ought a felony was committed, would to do, if such prisoner so com. not have been evidence, even mitted had been bailed.” though the witness had died,

In the construction of these or was unable to travel. See statutes, it seems now to be Phillips on Evidence, 162; and settled, Hawk. Pl. Cr. b. 2. c. Rex v. Smith, post.


HUMBLE v. Hunt and Others.

[ocr errors]

which leases

ble evidence to sustain the

(HIS was an action for the disturbance of A book in

common, by making waggon ways, &c. were enrolled, The defendants contended that, notwithstanding kept in the of. the plaintiff's right of common, the lessees of the ditor of the Bishop of Durham, under whose rights they pro- bashPool Pop tected themselves, had been in the constant prac- ficer holding a

patent office tice of granting leases of way-leaves, &c. In or- in the der to prove the lease upon which the question to be admissiarose, the defendant's counsel produced a lease to granted by the bishop of Durham in 1724. It claims of a leswas contained in a book which was kept in the bishop of Dur

liam, the ori. office of the auditor of the bishop, and was called ginal and the Enrolment Book. The witness who produced the lease be

counterpart of the book, stated the custom in that office to be, ing iost. 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.

see of 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. The public could VOL. I.

2 R

[merged small][merged small][ocr errors]

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 pubJic 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.


HAY and Another v. MONK HOUSE and Another.

[ocr errors]

novo, in the

Q. If she

HIS was an action for money had and re- A. being

indebted to B. ceived. The plaintiffs were the assignees of assigns a ship one Mathews, a bankrupt; and the question turned tee for et bus upon the clause of the statute of James I. relating way of mosta to reputed ownership. Mathews was indebted to is registered de the defendants in a large sum of money; and, pre- name of C. and vious to his bankruptcy, had assigned to a Mr. registry is put Fairbain, in trust for the bankrupts, a vessel called She is dedi the Dolphin, The debt was to be paid by instal- under the con. ments. Upon the assignment of the vessel, the who becomes

a bankrupt. proper forms of transfer were gone through at the custom-house; and the vessel was registered assignees up

passes to his de novo, in the name of Fairbain, and Mathews der the statute 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

« PreviousContinue »