Parish register. Hera'd's books. 12. Parish registers are evidence of the entries of births, marriages, &c. therein made, but subject to the proof of the identity of the parties, in the same manner as has been observed respecting the books of the navy office.* 13. The herala's books are good evidence of pedigree and such matters, but entries in them taken from records cannot be evidence, because the records themselves (or in cases hereafter to be noticed copies of them) might be obtained. Inscriptions. And for numerous reasons, inscriptions on monume: ts and grave, stones, are evidence of the same, subject to the common rules respect, ing proof of identity. Sentence of spiritual courts. Depositions generally. 14. The sentence of the Spiritual Court on a subject within its jurisdiction is good evidence, as of the lawfulness of marriage. 15. In criminal cases, depositions are taken by virtue of the statute of 1 and 2, Ph. and Ma. c. 13, and 2 and 3, Ph, and.. Ma. c. 10. By the former of these, it is enacted, "that those per. sons who are brought before Justices for felony, and who are bailed, and by the latter, that those, who, under similar circumstances, are brought before them and committed: shall be examined touching the felony, and their examinations, as well as of those who bring * Peake's Compend. 92. † 3 Black. Com. 105,-Theo. of Evi. 45, them, shall be put into writing." On these statutes, it has been holden, that in case of felony, if a magistrate take the deposition on oath of any person in the presence of the Prisoner, whether the party wounded or an accomplice, and the deponent die before the trial, the depositions may be read in evidence; but if the Prisoner be not present at the examination, it can duly he read as the dying declaration of a person in extremities; for the rule is universal, that where there was no opportunity for cross examination, a mere ex-parte evidence although on oath, shall not be received as strictly evidence.* It is to be observed too, that these statutes relate only to cases of felony, and therefore are not applicable (so as to make such depositions evidence) on any other cases.t Depositions before coroners, where the parties were in extremis and have died immediately after, have been received in trials for murder. Where a pregnant woman died after examination, but before an order of filiation, such examination taken under the stat. 6 Geo. 2, c. 31. was holden admissible evidence, on an application to the Quarter Session, for an order on the father, and uncontradicted to be conclusive.§ *Leach. C. L. 512. † Salk, 281. Peake's Compend. 63.-Cald. Ca. 482. Ante this chap. Title, BASTARDY, and 2 East's R. 63. Eamination But the examination of a pauper, though of a pauper. committed to writing, and taken before two Justices, touching his settlement, is not admissible evidence of such settlement,* any more than depositions in Chancery and other Courts, where, by the course of proceeding, there can be no cross examination.† Of a soldier. However, by the annual mutiny act, it is made so now, with respect to soldiers, under certain restrictions, viz. that "if any non-commissioned officer or soldier shall have wife, child or children, two Justices may summon him where he is quartered, to make oath of the place of Iris last legal settlement, and he shall obey such summons, and make oath accordingly, And the Justice shall give an attested copy of such affidavit; to be delivered to the commanding officer, which copy shall be evidence, as to such settlement, &c. &c." on this statute making so material an inroad on the old determinations respecting evidence, it has been decided that, 1st, there can be only one attested copy in each case entitled to this privilege, viz, that which is delivered to the commanding officer; 2ndly, that this examination must be authenticated before it can be received in evidence, for it is not one of those instruments which proves itself; 3dly, that as a copy is de * See Prac. Expos. Title, Poor, sect. 2, where most of the cases on the subject are brought together. clared to be evidence, it follows that the original examination must be considered such.* deeds. 16. If a deed be upon the face of it 30 years Ancient old or upwards, it may be given in evidence without any proof of the execution of it; but some account of what custody it is produced from, and other circumstances to shew the fairness of the exhibition, may frequently be necessary to entitle it to unqualified credit. If there be any erasures or interlineations, or other circumstances to create any doubts, such circumstances also must be accounted for, in some way, to rebut the presumption of fraud or fabrication.† 17. It may be laid down as a general rule, Copies, that as wherever original instruments can be obtained, no inferior evidence of their contents is admissible; so it is an equally general rule that where the record, the contents of which are necessary to be given in evidence, is public property and cannot be obtained by subpoena or other process from the place where it ought always to remain; or where, though private property, it is not produced by the party possessing it, an attested copy, or in such sorts of instances as Parish registers, Bankers' books, and other depositaries where the contents consist of separate entries, and concern different persons, at * Pract. Expos. Title, Poor, Sect. 2. + Bull. N. P. 255. 219 Parol testimony not to be admitted tested portions of copy, as extracts of the parti. cular entries, are good evidence.* A few observations on the subject of evidence, as connected with both sorts, parol, and written, must conclude this part of the subject. A Written evidence is considered by the law as of so much higher a nature than parol tesagainst writ- timony, that the latter is never admitted to conten evidence. tradict the former; never to controul it but where it is ambiguous; nor to explain it but where it is contradictory.† Not to the fact contained in the written. And where both exist, and one is merely the transcript of the other as to the same fact, the written alone can be admitted: thus though the declarations of a person mortally wounded respecting his murderers, made upon the approach of death, be admissible from the necessity of the case, if those declarations were reduced to writing by the persons to whom they were made, that writing must be produced, and not the contents of it given viva voce. Thus also a witness may refresh his memory indeed by reference to any book or paper, but if that book or paper be the foundation of his knowledge, it must be produced, and not the parol testimony of its contents given.‡ Where written instruments are proved to have been burnt or lost, or where they are in adverse * Peake's Compend. 91. + lbid. 112. 3 Term R. 749. |