Ch. 1. Evidence. for rent due at Michaelmas, and afterwards Prefumptive claims rent due at Lady-day preceding, it furnishes a ftill ftronger prefumption that fuch preceding rent has been paid; and where a ftale demand is made in a Court of Juftice, the very circumftance of its coming late, in all cafes inclines the mind to fufpect that it has not a juft foundation, and in many has been taken as complete evidence of the nonexistence or payment of it; but thefe latter cafes refting on prefumption, and not on pofitive proof, very flight evidence is fufficient to rebut and overturn them, and to call on the different parties to establish their refpective rights by the ordinary rules of evidence (d). Having (d) Where a bond has not been put in fuit, or interest paid upon it, for 18 or 20 years, the Law calls upon the obligee to give fome reason for the delay, and in default of his doing so, prefumes that it has been paid (Forbes v. Wale, 1 Blac. 532.); and the fame rule applies to a fcire facias, brought for execution on a judgment (Curteis and another v. Fitzpatrick and another, K. B. fittings after M. T. 1796); but in the cafe of a small demand, which the party had no particular interest to collect, the Rule does not apply, and therefore it has been held, that mere length of time, fhort of the ftatute of limitations, unaccompanied by other circumstances, is not fufficient to found a prefumption of a Release of a Quit Rent. Eldridge v. Knott, Cowp. 214. In the cafe of the bond, the payment of interest or any other fufficient reafon why the action was not fooner brought, would be an answer to the prefumption which would otherwise arise from the length of time; and this fact of intereft having been paid, would be fufficiently proved by a receipt for it in the handwriting of the creditor himself indorfed on the bond, before the time when the prefumption was likely to arife, because then he had Having thus ftated the general rules appli Ch. I. Evidence. cable to every fpecies of evidence, as well Prefumptive written as parol, I fhall now proceed to give them a diftinct and separate confideration. had no interest in making such indorfement (Searle v. Lord Barrington, 2 Stra. 826, 2 Lord Raym. 1370, S. C.); but if made after that time, it would be no evidence. Turner v. Crifp. 2 Stra. 827. Vide Wafbington y. Brymer, Appendix, No. 4. CHAP. II. OF WRITTEN EVIDENCE. WRITTEN evidence has been divided by Lord Chief Baron Gilbert into two claffes: the one that which is public, the other private; and this firft has been again fubdivided into matters of record, and others of an inferior nature. I fhall follow thefe divifions, and treat of each in its order. SECTION I. Of Records. The memorials of the Legiflature, fuch as Acts of Parliament, (a) and judgments of the (a) Of Acts of Parliament the Law makes a diftinction between those which are public, as concerning the realm, all spiritual perfons, all offices, and the like, and those which fettle the private rights of individuals or particular places, and which are therefore called private. The former are not, correctly speaking, the fubject of proof in any Court of Justice, for, being the Law of the Land, they are supposed to be known to every man; and therefore the printed Statute Book is, on all occafions, referred to, not as evidence to prove that of which every man is presumed the King's fuperior Courts of Juftice are denominated Records, and are fo refpected by the Law, that no evidence whatever can be received in contradiction of them; (b) but being to be already conuifant; but for the purpose of refreshing the memories of those who are to decide upon them. But private Acts of Parliament not concerning the public, are not confidered as Laws, but facts, and therefore must be proved like other records which concern private rights, by copies from the Parliament Rolls; for the printed Statutes are, in this refpect, only private copies, and confequently no evidence of the fact. In one cafe Lord C. B. Parker permitted the printed ftatute touching the College of Physicians, which is a private act, to be read in evidence from the Statute Book printed by the King's printer, but the general, indeed univerfal practice, is to prove examined copies, vide Gilb. Law Ev. 10, 13. To prevent this inconvenience, the Legislature frequently declares, that acts in their nature private, shall be deemed public, which enables judges to confider them as laws, and thereby prevents the neceffity of evidence to prove, or special pleading to introduce them to the notice of a Court of Justice. For particular instances of what laws are confidered as public, and what otherwife, vide Bul. N. P. 223, &c. (b) By the practice of the Courts at Weftminster, all writs iffued in vacation, are tested as of a day in the preceding term; and when an iffue is made up in a proceeding by bill, the plaintiff is ftated to have brought his bill into Court on the first day of the Term, or of the term generally, which fignifies the fame thing. It was, for fome time, doubted whether the parties were not eftopped by this fiction, from shewing the exact day when the fuit was commenced, but it was afterwards determined, that where it became neceffary for the purposes of justice, to fhew the day when the writ in fact issued, either party might do so, and therefore, wherever the defendant pleads a tender before the exhibiting of the bill, or that he did not promise within fix years next before that time; the plaintiff may set forth in his replication the day on which the writ was fued out, and state that the tender was not made before that day, or that the defendant promised within fix years before it, and in like manner if the plaintiff's caufe of action accrues within the term, the day may be proved, Ch.II.f. 1. Ev. 7. Coke Lit. 282. a. by cations and Sworn Copies. Ch. II.fi. being the precedents of the Law to which · Exemplifievery man has a right to have recourse, they are not permitted to be removed from place. to place to ferve a private purpose; and are therefore proved by copies of them, which, in the abfence of the original, is the next beft evidence. These copies are of three kinds; 1ft, Such as are exemplified under the great or broad feal, which by virtue of that feal, become Gilb. Law themfelves Records (c) and can only be of proceedings in the Court of Chancery, or thofe of the other Courts returned there by certiorari. Ev. 14- by the production of the writ by the Plaintiff, or a copy of the precipe after notice to produce it by the defendant, vide Johnson v. Smith, 2 Bur. 950. Morris v. Pugh. 3 Burr. 1241. But, in general, the filing of the bill is confidered as the commencement of the fuit, and therefore the plaintiff may give evidence of any cause of action arifing before it, though after the writ sued out. Fofter v. Bonner, Cowp. 454; and this in bailable as well as other actions. Bet v. Wilding 7 T. Rep. 4. An officer, whose business it is to keep the records, may be examined as to the condition of them, but not as to the matter of the record. Leighton v. Leighton, 1 Stra. 210. And if words have been struck out, which render a record erroneous, witnesses may be examined to fhew fuch words were improperly struck out; but not to falfify the record, by fhewing that an alteration, whereby the record was made correct, was inproperly made, Dickfon v. Fisher. 1 Black. 664. 4. Burr. 2267. S. C. (c) Letters Patent being under the Great Seal are also matters of record, and are, therefore, read without further proof, and by flat. 3 & 4 Edw. 6. c. 4. & 13 Eliz. c.6. Patentees, and all claiming under them, may make title, by fhewing the exemplification or conftat of the Roll. The fe ftatutes have been held to extend to all the King's Patents which concern lands, privilege or other thing granted to a fubject, corporation, of any other. Page's Cafe, Co. Rep. 53. 5 2dly, An |