3. Action by the indorfee of a promiffory note against the maker. It appeared on the face of the note, that it had been noted for non-payment. The defendant offered to prove that he had paid the note to the payee after it became due, who had afterwards negotiated it without his confent; and it was held in B. R. that he might; and three judges, hafitante Lord Kenyon, C. J., were of opinion, that if a note be over due when indorfed, it is alone fuch a circumftance of fufpicion that the maker may give evidence of payment to the original payee in an action by the indorfee, for he must have taken it on the credit of the indorfer, and not of the maker. Brown v. Dovis, 3 Term Rep. B. R. 80.

4. In an action by the indorfee of a promiffory note, payable on demand, against the maker, Buller, J. admitted the defendant to give evidence that the note had been indorfed to the plaintiff a year and an half afterwards, (i. e. the making) and alfo to impeach the confideration, by fhewing that it had been given for smuggled goods, and further that payments had been made upon it. Which being proved, though no privity was brought home to the plaintiff, the judge directed a nonfuit. Banks v. Colwell, Launceston Spring Affizes, 1788, cited ibid.

5. It feems a reasonable diftinction which has been taken between an action between the parties themselves, in which cafe evidence may be given to impeach the promife, and an action by or against a third perfon. Snelling v. Briggs, Reading, 1741. B. L. N. P. 274.

6. Action by the indorfee of a promiflory note against the maker. The note was indorfed after it became due, and there were many circumftances which induced the court and jury to believe that it had been fraudulently obtained. Verdict for defendant, which the court refused to fet afide; and per Buller, J. affentiente curiá"If there are any circumftances of fraud in the transaction, and "the note comes into the plaintiff's hands by indorsement after "it is due, I have always left it to the jury upon the flightest "circumftance to prefume that the indorfee was acquainted with "the fraud." Taylor v. Mather, 27 G. 3. B. R. 3 Term Rep. 83. n.

7. Action brought by the indorfee of a bill of exchange, payable to H. Davis, or order, against the acceptor. It got into the hands of another H. Davis, who indorfed it, and the plaintiff, without any imputation of fraud, discounted it. It is competent to the defendant to fhew on the trial that the indorfer is not the perfon in whose favour the bill was drawn. Per three judges, Lord Kenyon, C. J. diffentiente. Mead v. Young, 4 Term Rep. B. R. 28. 8. It is fufficient for a plaintiff in an action on a note of hand to prove the note to have been given by the defendant; but the defendant will be at liberty to fhew it was given on an illegal confideration. Guichard v. Roberts, Mich. 4 G. 3. K. B. B. L. N. action is

P. 275

This feems to apply only

to cafes

where the

brought by the payee,

unless where the confideration was ufurious, or a gaming transaction, &c.

12 Vin. 86.

9. Affumpfit by the indorfee of a bill of exchange against the drawer, the bill being refufed acceptance; 2d count, money paid; 3d, money had and received; and 4th, infimul computaffent. It appeared in evidence, that on a fettlement between plaintiff and defendant, the latter faid he could prove he had paid this bill, and it was agreed that the bill thould be depofited in the hands of a third perfon, and if the defendant brought proof of payment within a month, it was to be delivered up to him, and if not, he promised to pay it to the plaintiff. No proof being brought within that time, the bill was delivered to the plaintiff, who brought this action. At the trial, it was offered in evidence for the defendant, that the debt was paid for which the bill had been given, and that he could not find the witnefs within the month by whom he could have proved the payment. Gould, J. refufed this evidence on the trial, and on a motion for a new one retained his opinion; but the other three judges of C. B. were of opinion that the defendant ought to have been permitted to prove that the debt for which it was given had been difcharged, and made the rule abfolute. Elmes v. Willes, 1 H. Blackft. 64.

(A. b. 14) Bill and Anfwer in Chancery.

See Chancery Proceedings there, post. (A b. 17.)

(A. b. 13) Beyond Sea. Things done there.

See poft. (A. b. 30) pl. 17. & feq.

་

I. To prove property in the cargo in an action upon a policy of infurance, the plaintiff produced a bill of parcels of one G. at Petersburgh with his receipt to it, and proved his hand, which was allowed of by Lee, C. J. Ruffel v. Boheme, 2 Str. 1127.

2. In debt on judgment, plea of coverture and replication traverfing the plea. Defendant gave in evidence a marriage with one K. and then the plaintiff proved that K. had been previously married to a woman ftill living, to encounter which defendant offered in evidence, that K. was a Jew, and his former wife a Jewels; that they were divorced at Leghorn, according to the rites and cuftoms of the Jews there; after which it was competent to either party to marry again. To prove this, the inftrument of divorce under the feal of the fynagogue was produced; but rejected by Lord Kenyon, C. J., for before he could take notice of any proceeding in a foreign court, he must know the law of the country, which was matter of evidence, and fhould be proved by witneffes. The first wife was then called, who without producing any ment swore that she was divorced from K. the defendant's prefent husband before the rabbi at Leghorn, according to the ceremony and custom of the Jews there; on which evidence defendant had a verdict. Ganer v. Lady Lanesborough, Peake's Ni. Pri. Ca. 17.

inftru

(A. b. 14.) Bribery.

IN N an action of debt on the 7 & 8 W. 3. c. 25. the delivery of See poft. the precept to the returning officer need not be authenticated (A. b. 30), by the witneffes who had fubfcribed their names in attestation of

fuch delivery, but may be proved by a third perfon. Grey v. Smithyes & al., 4 Burr. 2273.

(A. b. 15) Books and other written Documents.

1. THE

HE queftion in ejectment being parcel or not parcel, a survey was offered in evidence on the plaintiff's fide, which was taken by one under whom he claimed ; but rejected per Pratt, C. J. as being an act to which the defendants were not privy.

Eaft. 4 G. 1 Str. 95.

Anon.

2. If 7. S. be feised of the manors of A. and B., and he cause a furvey to be taken of B., and then conveys it to I. N., and afterwards difputes arife between the lords of the two manors concerning the boundaries, this furvey may be given in evidence. Aliter, if the two manors had not been in the fame hands at the time of the furvey taken. Sir John Bridgman v. Jennings, 1 Ld. Raym. 734.

3. Trefpafs, and juftification that the locus in quo was an highway. Lord Kenyon refufed to receive a copper-plate map, purporting to be taken by the direction of the churchwardens of the parish, as evidence that the ground was an highway, though accompanied with proof that it was generally received in the parish as an authentic map. Pollard v. Scott, Peake's Ni. Pri. Caf. 18.

4. A furvey taken in 1563 upon the diffolution of monafteries temp. H. 8. may be read in evidence, notwithstanding the commillion under which it was taken be loft, and it will fupport a vicar's right to the fmall tithes. The Vicar of Kellington v. The Mafters and Fellows of Trinity College in Cambridge, &c. in Scacc. I Will. 170.

5. In ejectment for copyhold lands in the manor of Bolfover in the county of Derby, when the queftion was refpecting the mode of defcent of certain copyhold lands, a-cuftomary was produced in evidence by the fteward of the manor, as the customary of the manor, and which purported to be made ex affenfu omnium tenentium. It was of great antiquity, and kept and handed down along with the rolls of the manor from steward to steward; but it was without date, and was not figned by any perfon. The court of B. R. held it to be admiffible evidence, though not properly a court roll. Denn ex dem. Goodwin & al. v. Spray, 1 Term Rep. B. R. 466.

6. Where the plaintiff, to prove delivery, produced a book which belonged to his cooper, who was dead, but his name set to feveral articles, as wine delivered to the defendant; and a witness was ready to prove his hand. Lord Raymond would not allow it,

faying

12 Vin. 88.

Pof.

(T. b. 25),

30.

Vide 2 Vcf. 55.

This is con

faying, it differed from Lord Torrington's cafe, because there the witnefs faw the drayman fign the book every night. Clerk v. Bedford, Mich. 5 G. 2. B. L. N. P. 282.

7. Upon an iflue out of Chancery to try whether eight parcels of Hudson's Bay ftock, bought in the name of Mr. Lake, were in truft for Sir Stephen Evans; his affignees (the plaintiffs) fhewed firft that there was no entry in the books of Mr. Lake relating to this tranfaction: Secondly, fix of the receipts were in the hands of Sir Stephen Evans, and there was a reference on the back of them by Jeremy Thomas (Sir Stephen's book-keeper) to the book B. B. of Sir Stephen Evans: Thirdly, Jeremy Thomas was proved to be dead, and upon this the queftion was, Whether the book of Sir Stephen Evans referred to, in which was an entry of the payment of money, fhould be read? And the court of King's Bench at a trial at bar admitted it not only as to the fix, but likewife as to the other two in the hands of Sir Biby Lake, the fon of Mr. Lake. B. L. N. P. 283..

8. Action on the cafe, on an agreement for the hire of a pair of coach-hories. Plaintiff's fervant who made the contract was dead, and the only evidence of it was an entry made (by the fervant) in the plaintiff's book, which ftated the terms of the agreement. Per Lord Kenyon, C. J.-The evidence is inadmiffible. The cafes in which an entry made by a fervant in the books of his master have been received in evidence, are where by fuch entry the fervant charges himself, and discharges another perfón. But the entry here is not to charge the fervant. Calvert v. Archbishop of Canterbury, 2 Efpin. Ni. Pri, Ca. 646.

9. In Smartle and Williams, where the queftion was, Whether the mortgage-money was really paid? a fcrivener's book of accounts (the fcrivener being dead) was holden to be good evidence of payment. Cited by Lord Hardwicke in Montgomerie and Tur ner, 1751. B. L. N. P. 283, Comb. 249. S. C.

10. Where the clerk who made the entry in a banker's book was gone to the East Indies at the time of the trial, and not likely. to return, Lord Kenyon, C. J. held proof of his hand-writing to be inadmisible, for the clerk himself ought to be produced, as he might give fome material evidence independent of the mere entry in the books, from his acquaintance with the dealings upon which the entries are founded. Cooper v. Marfden, Efpin. Ca, at Ni. Pri. 1. 11. An impropriator's predeceffor's book was admitted evidence of a mortuary due. Bunb. 46.

12. So a parfon's receipts for tithes were admitted evidence for fidered as an his fucceffor. 2 Vef. 43. So his books. Per Yates, J. Timmins v excepted Waugh, Worcester Lent Affizes, 1765. 2 Espin. Ni, Pri. Ca. 774.

cafe. Per

Lord Kenyon, C. J. Outram v. Morewood, 5Term Rep. B. R. 123.

13. Entries by the lord's fteward are admiffible (he being dead) to prove a modus to the vicar in exemption from a claim to great tithes by the parfon. Price, B. diffent. Woodnoth v. Lord Cob ham, in Scacc. Bunb. 189,

34. Entries

14. Entries made by the owner of quit rents, (he being dead,) in his books of receipts of rent, of his receiving rent from the tenant of a particular eftate, are not admiffible evidence to prove the identity of the land, in a cause between other parties. Neither would his declaration; for all evidence, except in certain particular cafes, muft be given upon oath. Outram v. Morewood, 5 Term Rep. B. R. 123.

15. The debt book of an attorney who was dead, in which he charged for drawing a furrender of her eftate by the tenant for life, and which fhewed that the bill was paid, is admiffible evidence in an inquiry into the reasonablenefs of prefuming such a furrender, for the purposes of making a tenant to the pracipe. Warren ex dem. Webb v. Greenville, Trial at Bar, Eaft. 13 G. 2. 2 Str. 1129.

16. So in an action of trefpafs, wherein the iffue was on the foil and freehold of the defendant. The day book of a steward of the plaintiff's manor now dead, which book was not peculiarly appropriated to his concerns with the plaintiff, containing entries in his hand-writing of different fums of money received by him. for trefpaffes committed on the common in question on the plaintiff's account, is admiffible evidence. Barry v. Bebington, 4 Term See poft. Rep. B. R. 514. (T. b. 48).

17. On a bill by executors for payment of feveral bank notes, a lift of fuch notes in the teftator's hand-writing was held to be no evidence of his property in them. Glyn v. the Bank of England. 2 Vef. 38.

18. Debt on the ftatute of ufury by a common informer. Held by Lord Kenyon, C. J. that an account in the hand-writing of the perfon borrowing the money, acknowledging that the fum which made the tranfaction ufurious was paid on the balance of an old account, is no evidence for the lender, though the borrower is in another county; for it is res inter alios acta, and the borrower being no party to the record might be called and prove the account on oath, which therefore cannot be received without. Maugham qui tam. v. Walker, Peake's Ni. Pri. Ca. 163.

19. Entry in a bankrupt's books before the act of bankruptcy is evidence. Per Willes, C. J. Trin. 10 & 11 G. 2. B. R. temp. Hardw. 378.

20. An entry of the receipt of money by officers of the township of B from the officers of the township of H., of a proportion of church rates made in a parish book, is evidence to charge the lat ter officers with the fame proportion in future; and another entry, explaining the proportions, made on the fame page, is also admiffible evidence. Stead & al. v. Heaton & al. 4 Term Rep. B. R. 669.

21. In an indictment for perjury it was neceffary to prove the defendant an attorney of B. R., to do which a clerk from the mafter's office was called, who produced a book from the mafter's office, in which were contained the names of the attornies of the court. It was objected, that this was not the beft evidence, there

S 4

being