the other party, lies upon him. Ross v. Hunter, 4 T. R. 33. So where in action on an agreement to pay 1007. if the plaintiff would not send herrings to the London market, and particularly to the house of J. S., the plaintiff proved that he had sent no herrings during the twelvemonth to that house, it was held sufficient to entitle him to recover, no proof being given by the defendant that the plaintiff had sent herrings within the year to the London market. Calder y. Rutherford, 3 B. and B. 302. 7 B. Moore, 158, S. C. There are, however, some exceptions to this rule.

Where the presumption of law is in favour of the affirmative.] Where the presumption of law is in favour of the affirmative, as where the issue involves a charge of a culpable omission, it is incumbent on the party making the charge to prove it, although he must prove a negative, for the other party shall be presumed innocent until proved to be guilty. Thus, where in a suit for tithes in the spiritual court, the defendant pleaded that the plaintiff had not read the Thirty-nine Articles, it was held that the proof of the issue lay on the defendant. Monke v. Butler, 1 Roll. Rep. 83. 3 East, 199. R. v. Hawkins, 10 East, 216. So in an action by the owner of a ship for putting combustibles on board," without giving due notice thereof," it was held that the plaintiff was bound to prove the want of notice. Williams v. E. I. Comp. 3 East, 193; and see Marsh v. Horne, 5 B. and C. 327," post. So where the issue is as to the legitimacy of a child born in lawful wedlock, Banbury Peerage case, 2 Selw. N. P. 709, it is incumbent on the party asserting the illegitimacy to prove it; and where the issue is on the life of a person who is proved to have been alive within seven years; ante p. 18; the party asserting his death must prove it.

Where the fact is peculiarly within the knowledge of a party.] But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of the law in favour of innocence is not allowed to operate in the manner just mentioned, but the general rule as above stated applies, viz. that he who asscrts the affirmative is to prove it, and not he who avers the negative. 2 Russ. on Crimes, 692, 2d Ed. Thus in an action on the game laws, though the plaintiff must aver that the defendant was not duly qualified, yet he cannot be called upon to prove the want of qualification. Spieres v. Parker, 1 T. R. 144, Adm. R. v. Stone, 1 East, 650. So in an action against a person for practising as an apothecary, without having obtained a certificate according to 55 Geo. III. c. 194, the proof of the certificate lies upon the defendant, and the plaintiff need offer no evidence of his practising without it. Apoth. Comp. v. Bentley, R. and M. 159.

INSTRUMENTS OF EVIDENCE.

Under the present head will be considered the mode in which the various kinds of documentary evidence must be proved, and also the rules with regard to the competency of witnesses, and their examination.

Proof of Acts of Parliament and Journals.

Acts of parliament are either public or private. The printed statute-book is evidence of a public statute, not as an authentic copy of the record itself, but as hints of that which is supposed to be lodged in every man's mind already. Gilb. Ev. 10. A private act of parliament is usually proved by a copy examined with the parliament roll. B. N. P. 225. A private act of parliament, containing a clause "that it shall be deemed and taken to be a public act, and shall be judicially taken notice of without being specially pleaded," requires to be proved in the usual manner by an examined copy. Brett v. Beales, 1 M. and M. 421. By stat. 41 Geo. III. c. 90, s. 9, the copy of the statutes of England, and of Great Britain since the union with Scotland, 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 by 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 House of Lords, and of the House of Commons, may be proved by examined copies, but the printed journals are not evidence. Lord Melville's case, 24 How. St. Tr. 683. R. v. Lord G. Gordon, 2 Dougl. 593. An unstamped copy of the minutes of the reversal of a judgment in the House of Lords, without more of the proceedings, is evidence of the reversal. Jones v. Randall, Coup. 17.

Proof of Records.

Upon an issue of nul tiel, &c.] Upon an issue of nul tiel record, the record, if a record of the same court, is produced, and inspected by the court, Tidd, 801; if a record of an inferior court, it is proved by the tenor of the record, certified under a writ of certiorari, issued by the superior court, id. 804; if a record of a concurrent superior court, it is proved by the tenor certified under a writ of certiorari, issued out of Chancery, and transmitted thence by writ of mittimus. Ibid.

Where nul tiel record is not pleaded, but it is necessary to prove a record in support of some allegation in the pleadings, the record may be proved either by an exemplification or a copy. Exemplifications are of two kinds, either under the great seal, or under the seal of the court in which the record is preserved. An exemplification under the great seal may be obtained of any record of the Court of Chancery, or of any record which has been removed thi ther by certiorari, but private deeds exemplified under the broad seal, will not be admitted in evidence. B. N. P. 227. Exemplifications of the records of a public court under its own seal, are admissible, 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; and, if a foreign court has an official seal, it must be used for the purpose of authenticating its judgments, and a copy by an officer of the court is not sufficient. Black v. Lord Braybrooke, 2 Stark. 7; and see Appleton v. Lord Braybrooke, 6 M. and S. 34. If a colonial court possess a seal, it should be used to authenticate its judgments, though so much worn as no longer to make any impression. Cavan v. Stewart, 1 Stark. 525. If there be no seal of the court or island, an examined copy must be obtained; per Lord Ellenborough, Appleton v. Lord Braybrooke, 6 M. and S. 36; or distinct evidence should be given that the court has no seal, and verifies its judg ments by the signature of the judge. Alves v. Bunbury, 4 Campb. 28. So the seal of a corporation must be proved to be genuine by a witness acquainted with it. Mises v. Thornton, 8 T. R. 307; but it is not necessary to call a witness who saw the seal affixed. Ibid. The scal of the corporation of London has been held to prove itself. Doe v. Mason, 1 Esp. 53.

Examined copy of a record.] When the record is complete, an examined copy will be evidence, unless upon the issue of nul tiel record. Records are not complete until delivered into court in parchment, therefore a minute-book, from which an entry of the proceedings at sessions is made, and from which book the roll containing the record of such proceedings is subsequently made up, is not a record. R. v. Bellamy, R. and M. 171. So the 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 M. 236; 3 C. and P. 192, S. C.; nor the minute-book of the clerk of the peace to prove that an indictment was preferred. R. v. Smith, 8 B. and C. 341. The copy of a record must be proved by a witness who has examined it line for line with the original, or who has examined the copy while another person read the original. Reid v. Margison, 1 Campb. 469. And it is not necessary

for the persons examining to exchange papers, and read them alternately. Gyles v. Hill, Id. (n). Rolf v. Dart, 2 Taunt. 470. It ought to appear that the record from which the copy was taken was seen in the hands of the proper officer, or in the proper place for the custody of such records. Adamthwayte v. Synge, 1 Stark. 183. 4 Campb. 372, S. C. Where an ancient record has been lost, an old copy has been allowed to be given in evidence without proof of its being a true copy. Anon. 1 Vent. 257. B. N. P. 228.

Office copies.] An office copy in the same court, and in the same cause, is equivalent to a record; but in another court, or in another cause in the same court, the copy must be proved. Per Lord Mansfield, Denn v. Fulford, 2 Burr. 1179. But the office copy of an affidavit made in another cause in the same court has been admitted as good evidence. Wightwick v. Banks, Forrest, 153. An office copy of depositions in Chancery is evidence in that court, but will not be admitted in a court of eommon law without examination with the roll. B. N. P. 129. Burnand v. Nerot, 1 C. and P. 578, Highfield v. Peake, 1 M. and M. 109. By 7 Geo. IV. c. 57, s. 74, office copies of proceedings in the Insolvent Court are made evidence. Vide post.

Copies made by authorized officers.] Where a copy is made by a person trusted for that purpose, it is admissible in evidence with out proof of its having been actually examined. B. N. P. 229. Thus, the chirograph of a fine is evidence of the fine, the chirographer being appointed to make that copy, but it is not evidence of the proclamations, for of them the chirographer is not appointed to make a copy. Ibid. Gilb. Ev. 23. So the indorsement by the proper officer on a deed of bargain and sale enrolled according to stat. 27 Hen. VIII. c. 16, is evidence of the enrolment; Ibid. Kinnersley v. Orpe, 1 Dougl. 56; and the date of enrolment indorsed by the clerk of the enrolments is conclusive evidence of the date. R. v. Hopper, 3 Price, 495. So a copy of the depositions of a witness taken at a judge's chambers, signed by the judge, and delivered out by his clerk, is admissible, without proof of examination with the original. Duncan v. Scott, 1. Campb. 101. A copy of a judgment, purporting to have been examined by the clerk of the treasury (who is not intrusted to make copies), is not admissible without proof of its examination with the original. B. N. P. 229.

To prove the time of signing a judgment, the day-book kept at the judgment-office is not evidence. Lee v. Meecock, 5 Esp. 177. Ayrey v. Davenport, 2 N. R. 474.

⚫2 Eng. Com Law Reps. 348. ▾ 11 Id. 479.

Proof of Verdict.

In order to prove a verdict, when it is offered as the opinion of the jury on the issue, the postea alone is not sufficient, but the judgment must also be proved to show that it has not been arrested, or a new trial granted; Pitton v. Walter, 1 Str. 162. B. N. P. 234; unless in case of an issue out of Chancery, when no judgment is entered up. B. N. P. 234. So the Nisi Prius record, with the postea indorsed, or with a minute of the verdict indorsed by the officer of the court on the jury panel, is sufficient evidence, that the cause came on to be tried. Pitton v. Walter, 1 Str. 162. R. v. Browne, 1 M. and M. 315. And in an action for a moiety of the money paid by the plaintiff under a verdict recovered by A., in a suit against the plaintiff and defendant, the Nisi Prius record and postea have been held to be evidence of the verdict and damages in the former suit without proof of the judgment. Foster v. Compton, 2 Stark. 365. So it was held by Lord Kenyon, that the production of the postea in a former cause between the same parties, would support a plea of set-off to the extent of the verdict. Garland v. Scoones, 2 Esp. 648. But see Pitton v. Walter, 1 Str. 162.

Proof of Writ.

Where a writ is the gist of the action, it must be proved by a copy of the record after its return; but where it is only inducement to the action, it may be proved by production of the writ itself, if it has not been returned. B. N. P. 234. A copy of the judgmentroll, containing an award of an elegit, and the return of the inquisition, is evidence of the elegit and inquisition, in an action for use and occupation. Ramsbottom v. Buckhurst, 2 M. and S. 565. As to secondary evidence of a writ, see Edmonstone v. Plaisted, 4 Esp. 160, ante, p. 5.

Proof of Inquisitions.

Where the return to an inquisition is given in evidence, it is in general necessary to show, that the inquiry has been made under proper authority. Thus, in the case of an inquisition post mortem, and such private offices, the return cannot be read without also reading the commission, unless, as it seems, the inquisition be old; Vin. Ab. Ev. (A. b. 42); but in cases of more general concern, such as the return to the commission in Henry the Eighth's time, to inquire of the value of livings, the commission is a thing of such general notoriety that it requires no proof. B. N. P. 228. So an ȧncient 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 in its constructions the directions of the statute 4 Edw. I.,