10. In ejectment, the lessor of the plaintiff produced an original Poft. leafe for 1000 years, and proved poffeffion in himself and thofe (R. b. 7.) under whom he claimed for 70 years, and alfo one mefne affignment 16 Jac. I. All the other mefne affignments fhall be prefumed. Earl ex dem. Goodwin v. Baxter, 2 Blackft. Rep. 1229. 11. In the case of a plain truft where the trustees were directed to convey to a devifee on his attaining 21, the jury may be directed to prefume a conveyance at any time afterwards, though confiderably lefs than 20 years. England ex dem. Syburn v. Slade, Sec poft. 4 Term Rep. B. R. 682. (T. b), 69. 12. If no other title appears, a clear poffeffion of 20 years is evidence of a fee. Denn v. Barnard, Cowp. 597. Prior Marriage. pl. z. ON not guilty in trefpafs for an affault, the defendant gave in Ante, evidence his marriage with the plaintiff; to encounter which, (A: b. 13) the proved a former marriage to one who was alive at the time of her fecond. It was infifted, that the plaintiff ought not to give felony in evidence to fupport her action; but the objection was over-ruled by King, C. J. and the obtained a verdict, her marriage with the defendant being void ab initio. Westbrooke v. Strutville, Str. 79. Buller's Law of N. P. 21. 1. THE (A. b. 57) Probate. 12 Vin. 126. HE ecclefiaftical court never grants an exemplification of Ante, letters of adminiftration, but only a certificate that admi- (A. b. 33), niftration was granted; therefore when a leffee pleads an affignment of a term from an adminiftrator, fuch certificate is good evidence. Kempton v. Crofs, Bull. L. N. P. 246. 2. So would the book of the ecclefiaftical court, wherein was entered the order for granting administration. Ib. 3. Where a perfon in ejectment would prove the relation of a father and his fon by his father's will, he must have the original will and not the probate only; for where the original is in being, the copy is no evidence; befide, the feal of the court does not prove it a true copy, unless the fuit only related to perfonal eftate. But the ledger book is evidence in fuch cafe, because this is not confidered merely as a copy, but is a roll of the court; and though the law does not allow thefe rolls to prove a devife of lands, yet when the will is only to prove a relationship, the rolls of the fpiritual court, that has authority to inrol all wills, are fufficient proof of fuch teftament. 1b. 4. And under particular circumftances, the ledger book may be evidence even in a devife of a real eftate, as where in an avowry for a rent charge, the avowant could not produce the will under which he claimed, that belonging to the devifee of the land; but producing the ordinary's regifter of the will, and proving fome payments, it was holden to be fufficient evidence against the plaintiff, VOL. IV. U who who was devifee of the land charged. Ca. K. B. 375. Bull. L. N. P. 246. 5. But it has been often holden, that a copy of the ledger book is not evidence, yet fince the original would be read as a roll of the court without further atteftation, it feems fit the copy fhould be read. The contrary practice has been founded upon the miftake that the ledger bock is read as a copy; fo that the copy of that is but the copy of a copy, whereas the ledger book is read as a roll of the court. Ib. 6. The only way of proving a right to perfonal property under a will, is by the probate. Rex v. Inhabitants of Netherfa, 4 Term Rep. B. R. 258. I. (A. b. 58) Proceedings in Courts Spiritual. ACTION for procuring the plaintiff's wife to exhibit articits of the peace against him, and living with her in adultery. To encounter proof of marriage and confummation, the defendant produced a fentence of the confiftory court pronounced fince iffue joined in this cause, in a cause of jactitation of marriage, brought by the woman against the plaintiff, wherein fhe was declared free from contract, and perpetual filence impofed on the plaintiff. The chief justice ruled this to be conclufive evidence till reverfed by appeal, and the plaintiff was called. Clews v. Bathurst, Hil 7 G. 2. 2 Str. 960. Hatfield v. Hatfield, in Parliament, 1725 Str. 961. Rex v. Vincent, Str. 481. Vide the Duchefs of King fon's Cafe, Amb. 756.; although there is an appeal entered, and though fentence was given after iffue joined at common law. 2. So in an action upon a contract of marriage per verba de f turo and non affumpfit pleaded. The C. J. held a fentence of the fpiritual court in a cause of contract, pronouncing against a fuit for a folemnization in the face of the church, and declaring the lady free from all contract, to be proper and conclufive evidence for the defendant, on non affumpfit, for it is a caufe within their juri diction, though the contract was per verba de future, and though the fuit there is diverfo intuitu, being for specific performance, and this for damages, yet contract, or no contract is the point in iffut in both. Dacota & Villa-Real, Hil. 7 G. 2. 2 Str. 961. 3. Prudam v. Philips, C. B. Mich. 11 G. 2. S. P.; and the chief justice would not receive evidence of fraud or collufion in obtaining it. It. 4. Sentence in the fpiritual court, pronouncing a divorce a menfà et thore, is fufficient evidence of a feparation, although the libel and other proceedings in that court are not produced. Stedman v. Gooch, 1 Efpin. Ca. at Ni, Pri. 6. 5. Sentence in an ecclefiaftical court for fornication, &. in 1 criminal way, is not evidence against the ifiue of the parties; otherwise if it be a fentence on the point of marriage, and so collufion. Brownswerd v. Edwards, 2 Vez. 243. A 1 pl. 15. 6. A decree or judgment of an ecclefiaftical or other court, Sec poft. having a competent jurifdiction, to be conclufive evidence, the (A. b. 76), matter of it must be determined, ex directo. Thus if a fuit were inftituted in the ecclefiaftical court by B. against C. for a divorce. caufâ adulterii with D., and the were to plead that he was married to D. and upon proof made the court fhould fo and accordingly difmifs B.'s libel; yet that would be no evidence Vide 2Will. in an ejectment in which the marriage between C. and D. came in 122. Robins difpute. Rabin's cafe in C. B. 1760. B. L. N. P. 244. pronounce, v.Crutchley. 7. So in ejectment between a devifee and heir at law, the defendant obtaining a verdict upon proof that the will was not duly executed, yet could not give it in evidence on another ejectment brought by another devifee. B. L. N. P. 244. et feq. 8. In an action for interrupting the plaintiff in the enjoyment Post. (T.b), of his pew. A libel in the confiftorial court by the plaintiff 106. against the defendant for disturbing his right thereto, and fentence thereupon, by which the court adjudged the right to be in the plaintiff, and admonished the defendant not to fit in the pew, together with proceedings upon appeal to the court of Arches, and their fentence reverfing the former, but admonishing the defendant not to use the pew again, and condemning him in costs, is not conclufive evidence of the plaintiff's right. Cross 7. Salter, 3 Term Rep. B. R. 639. 1. (A. b. 58. 2) Proceedings in other Courts. UPON PON an indictment for an affault upon a fellow-commoner of Queen's College, Cambridge, by turning him out of the garden, fentence of his expulfion unappealed from is conclufive evidence for the defendant. Rex v. Grundon & al. Corup. 315. 2. A fentence in the Admiralty which condemns goods as piratical, in trover for the fame goods, upon the libel and answer produced fhall be evidence. Per Trevor, 9 Ann. inter Wheeler and Louth, 4 Com. Dig. tit. Evidence, (C. 1). 3. The fentence of a foreign admiralty, condemning a fhip as P. unfit, cannot be read in an action on the charter-party, which is (A.b. 58.3). a contract under feal at land. Burton v. Fitzgerald, Str. 1078. 4. Judgment in a court baron, hundred, or county court, with proof of the proccedings upon which the judgment was given, is evidence. 4 Com. Dig. tit. Evidence, 98. 5. Action for a malicious profecution by indicting a bailiff for forcibly taking away goods without a legal authority. The plaintiff to justify his having authority, produced the minutes of the judgment in a court baron and a warrant of execution made upon it, but the judge was of opinion that the judgment ought to have been drawn up, and that the minutes were not evidence of it, and the plaintiff was nonfuit. Pitcher v. Rinter, Thetford Alizes, Cor., 2 Barnard, B. R. 406. 6. Duplicate of an infolvent debtor's difcharge at feffions is evidence of his difcharge. Gillam v. Stirrup, Trin. 8 Geo. 2. B, R. ump. Hardw. 145. Savage v. Field, ib. 186. S. P. U 2 7. But 7. But not of any fact which is the foundation of their jurifdiction. Savage v. Field, ib. Mich. 9 G. 2. B. R. temp. Hardw. 186. 8. If it recites, that due notice was given in the Gazette, and the perfon who gave the notice is dead, it fhall be evidence that thirty days' notice was given; that being the time prescribed by the infolvent act for fugitives for debt to give as notice to their creditors previous to their taking the benefit thereof, for it is not neceffary to found their jurifdiction upon, but is only the manner of their proceeding. Ib. 9. A condemnation in a foreign attachment, which appears on the record to be fubfequent to an action in C. B. is no evidence. Parrot v. Benn, Barnes, 195. 10. A commiffion under the feal of the court of Exchequer, 33 Eliz. to inquire whether the priory of St. Swithin was seised of certain lands in right of the houfe, and whether the crown was fo feifed fince its diffolution, together with the return to it, and the depofitions taken thereon, are admiffible, but not conclufive evidence. Tooker v. Duke of Beaufort, 1 Burr. 146. (A. b. 58. 3) Proceedings in Foreign Courts of Admiralty. Seef A.13). I. A (A.b. 58.3), pl. 2. 1 Sentence of a court of Admiralty binds all the world as to every thing contained in it. Park on Mar. Inf. 353Therefore in an action on a policy of infurance on a ship warranted Dutch property, a fentence of the ultimate court of appeal in France, condemning her as lawful prize by the name of "The "Three Graces, of Liverpool," and ftating evidence from whence it appeared that he had none of the documents prescribed by the French ordinances for neutral fhips, was held conclufive evidence that the warranty had not been complied with. Barzillay v. Lewis, B. R. Trin. 22 G. 3. Ib. 359. 2. So alfo by a sentence in the French courts of prizes, the Arainha de Portugal was condemned, becaufe by the French marine code all fhips of an enemy's conftruction which do not carry a bill of fale, of a date prior to the commencement of hoftilities, and that this veffel, being English built, was in this ficuation. This was held by Lord Kenyon, C. J. to be conclufive evidence in an action on a policy, against a warranty of her being a Portuguese ship. De Souza v. Ewer, Ib. 361. S. P. Salonici v. Woodmass, Ib. 362. 3. In a policy of infurance, the fhip was warranted to be Por tuguete, and was taken by a French privateer: he was condemned by the French court of Admiralty because she had an English fupercargo on board; and it appeared that there was a French ordinance prohibiting any Dutch hip from carrying a fupercargo belonging to any nation at enmity with the court of France. On a queftion referved, whether the circumftance of having an English fupercargo was a breach of neutrality, and whether fuch a fentence was conclufive? Held in B. R. not to be fo. It is an arbitrary and oppreffive regulation, contrary to the law of nations. If both were ignorant of it, the underwriter muft 珍 muft run all risks; and if the defendant knew of the edict, it was his duty to inquire if there was fuch a fupercargo on board. It muft be a fraudulent concealment to vitiate a policy. Mayne v. Walter, B. R. Eaft. 22 G. 3. Ib. 363. 4. So if the veffel be condemned as prize, but the grounds of the fentence appear manifeftly to contradict fuch a conclufion, it is not conclufive evidence against a warranty of neutrality. Ib. 364. 5. Thus in an action upon a policy on the " Thetis, a Tufcan "hip, warranted neutral," the fhip was taken by a Spaniard, and condemned as prize. The grounds of condemnation being, f, that the refufed to be fearched, and refifted with force, having fired at the Spaniard's fhip; 2dly, that he had no charter-party on board. The captain anfwers, 1ft, that he refifted and fired, the Spaniard having hailed him under falfe colours; 2dly, that he had taken the goods on board by the piece, and had not freighted her The authoto any individual, in which cafe a manifeft is fufficient, without rity of these a charter-party. The fentence of the laft court of appeal condemning the fhip admitte d'her to be neutral, as it stated her to be" the "thip Thetis, a Tuscan fhip." Held in B. R. that this fentence was not conclufive against her neutrality; for the fecond ground of condemnation was given up as unfounded by the counfel, and the first is no breach of neutrality. To fearch is an act of superior force, always refifted where the party is able. Saloucci v. Johnfon, Hil. 25 G. 3. Ib. 364. 6. In an action on a policy of insurance on goods, warranted American, on board a fhip from London to Virginia, a sentence of a foreign court, which, after reciting that, "forafmuch as the "true deftination of the veffel was for the English islands, having "been hired and loaded at London, and having on board 80 bar"rels of gun-powder, declares the fhip and cargo a good prize;" is not conclufive evidence against the warranty of neutrality, inafmuch as the reafons affigned in the fentence fhew that they proceeded on other grounds. Calvert v. Bovill, 7 Term Rep. B. R. 523. 7. But in an action to recover as for a total lofs by capture on a fhip" warranted American property," the fentence of a French court of Admiralty, whereby it appeared that the ship infured had been condemned as enemy's property for want of having on board a roll d'equipage, or lift of the crew, fuch as is required by the marine ordinance of France, and adjudged by the court there to be requifite within the meaning of the treaty of commerce between France and America, is conclufive evidence against the warranty, although it fhould appear from the facts, if the court thought themselves not concluded by the fentence, that the fhip was clearly American. Geyer v. Aguillar, 7 Term Rep. B. R. -81. 8. So in an action on a policy of insurance on fhip and goods, warranted Danish property, Denmark being then a neutral power, the warranty was holden to be conclufively difproved by a sentence of a British Vice court of Admiralty condemning the fhip and cargo, becaufe the master and crew had broken their neutrality in the courfe of the voyage insured, by forcibly refcuing the ship, which had been U 3 feized two cafes was recog nifed by Ld. Kenyon, pot. S. P. But lee Garrells v. Ken fington, 8 Term Rep. B. R. 220. Poft. pl. 28. |