1917. 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 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 practice 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 protherefore, to come The office of the The public could ducing it. Could it be said, 1817. HUMBLE v. HUNT. not, as matter of right, search at this office; a man- of a manor. The book itself was a mere register 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. TH A. being indebted to assigns a ship to a trus B. way of mortgage. The ship is novo, in the a certificate of name of C. and registry is put she is left under the conwho becomes on board; but troul of A., a bankrupt. Q. If she passes to his HIS was an action for money had and received. The plaintiffs were the assignees of one Mathews, a bankrupt; and the question turned 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 assignees unde 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 1817. HAY and Another shire, where he received the cargo on the 15th of April. The vessel was then chartered by Maand Another thews on a voyage to Cardiff, and thence to Lonv. don. In the month of June the vessel returned MONKHOUSE to Newcastle; and was taken possession of by Fairbain, in trust for the defendants. A person of the name of Gilly was then the captain, who applied to Fairbain for money due to him upon the voyage from Cardiff to London. Fairbain said that he had nothing to do with the vessel at that time, and would not pay any charges of the voyage. Mathews had committed an act of bankruptcy in January 1816, to which time the commission referred. Hullock, serjeant, and Tindall, for the plaintiffs, relied on Mair v. Glennie, 4 Maule and Selw. 240; in which it was laid down, that a transfer of a ship and cargo at sea, conveyed by M. to S. as security for money borrowed, by executing and delivering to S. a bill of sale of the ship, &c. was held not to pass the property to S., where S. neglected, upon the ship's return to port, and notice thereof, to take possession, or to do any act to notify the transfer of the property to him; but that the property passed to the assignees of M. by virtue of 21 James I. c. 19. Scarlett and Richardson, contrà, distinguished this case from Mair v. Glennie. The certificate of registry was on board the Dolphin; all the forms of transfer were regularly gone through at the custom-house. The legal title was taken by Fairbain as trustee for the defendants; and |
