1. (T. b. 22) Contents of Deeds, or other Writings. 12 Vin.213. See poft. (T. b. 65). Ante, (U. a). (A. b. 48). (F. b). (R b. 7), pl. 1. DEFENDANT in ejectment refufing to produce the lease in her custody, an attorney who had read it was allowed to give evidence of the contents. Young v. Holmes, Str. 70. 2. Proof of the delivery of a paper to the fervant of defendant, in an information for a libel, with notice given to produce it, is not fufficient to enable a profecutor to give parol evidence of the contents. Rex v. Pearce, Peake's Ni. Pri. Caf. 75. 3. A witnefs was called to prove that the debts of a company a little time before their bankruptcy amounted to a much larger fum than their credits. He produced no papers, but faid, he collected his information from having infpected their accounts. Lord Kenyon thought that though he could not state the particulars of the books without producing them, yet that he might speak to the general amount, not by faying that one page was fo much and another fo much, but what from his general obfervation he perceived to be the state of their accounts. Roberts & al. Affignees, &c. v. Doxon, ib. 83. 4. In an action against the indorfee of a promiffory note, parol evidence cannot be given of the contents of a letter to him, advising him that the drawer had dishonoured it, unless he has been ferved with notice to produce it. Shaw & ál. v. Markham, ib. 165. (T. b. 25) Customs of a Manor, Parish, &c. FON 12 Vin.215. Na trial at bar on an iffue out of Chancery, whether tenant Ante, (F), for life by a marriage settlement of a manor is entitled to pl. 37. S. C. a general fine from the customary tenants of that manor, upon the death of the laft admitting lord, it was refolved, 1. That lords of other customary manors should not be allowed as witneffes, being interested in the event. 2. Evidence was admitted of feveral other tenants who held of the manors in queftion under the fame tenure as the prefent defendants, having fubmitted and paid their fines. 3. Several inftances of fines being paid in like cafes to lords of other manors, were given in evidence; the court declaring that it was contrary to their opinion of the rules of evidence, but relying on Chapman and Atkinson, 3 Keb. 90. and on its being declared to be the practice in the northern counties, in one of which this manor lay, to admit it as being an evidence of the laws of the country. The reporter fays, that the Judges of C. B. and Barons of the Exchequer were of opinion that it fhould not have been allowed. Duke of Somerset v. France & al., 1 Str. 654. Lowther v. Raw, in Dom. Proc. 1735. Fort. 44. 2. The object of the bill was to prevent wafte in digging and. carrying away the foil in manors that lie in the levels in Cambridge of one ma nor has been given in evi dence to thew the custom of The custom hire. Evidence of cuftoms in a neighbouring manor was offered to fhew the customs of this manor in queftion. Per Lord Hardwicke, Canc.-In mine countries courts of law have admitted evidence with regard to profits of mines, &c. out of other manors, where they are fimilar, to explain or corroborate the custom of the manor in queftion. In the prefent cafe, there is a great fimilitude where they in the manors, because this is a fen country which is of large are both governed by the extent, and the nature of fens and marshes throughout England border law. is pretty much the fame. The evidence must be read. Dean Per Ld.Ken- and Chapter of Ely v. Warren, 2 Atk. 189. another yon, C. J. Roe v. Parker, 5 Term Rep. B. R. 31. 3. Where the question was, Whether the office of register to the archdeacon had been ufually granted for three lives, evidence that other archdeacons in the fame diocefe had made grants for three lives was refufed by Lord Hardwicke, C. J. Ruding v. Newell, 2 Str. 957. 4. If it appears by the court rolls of the manor that a youngest nephew at a court leet and court baron held in and for the manor, was admitted tenant as heir by the custom to the perfon laft feifed of lands in this manor, this is good evidence to fupport fuch a custom, and the court will not grant a new trial in ejectment when a verdict was found on it in contradiction to other evidence. Doe ex dem. Mafon v. Mafon, C. B. 3 Wilf. 63. 5. An ancient cuftomary of the manor of Bolfover declares in article 5. "That the next heir fhould pay a relief of 55. and 4d. "to the lord, &c. for that no tenements of this manor are part"ible either between heirs male or female." Article 13. fays, "If a tenant have no fon, his eldest daughter fhall have his inhe"ritance without partition, except dower." Inftances were produced from the rolls of the manor of the eldest daughter's and the eldest fifter's having fucceeded, but none of an eldest niece. The custom does not extend to her, but the lands must descend according to the rules of common law. Denn ex dem. Goddwin v Spray, 1 Term Rep. B. R. 466. 6. An entry in the court rolls of a manor, clearly defining the mode of defcent in the manor, is admiffible evidence to prove in what manner lands fhall defcend there, although no inftance of any person's having taken according to it be proved. Roe ex dem. Beebee v. Parker, 5 Term Rep. B. R. 26. 7. The custom of one manor is no evidence of the custom of another. Per Buller, J. Noble v. Kennoway, Dougl. 495. Dean and Chapter of Ely v. Warren, 2 Atk. 189. Š. P. 8. On a question whether the rector was bound by a cuftom in a particular parish to take his tithe as foon as any part was set out, the court held, that proof of the custom in other parishes is no evidence to affect the parish in queftion, unless the custom is laid as a general custom of the country. Furneaux v. Hutchins, Corp. 807. 9. In affumpfit for ufe and occupation by a landlord, the only queftion was, Whether the rent was payable quarterly or halfyearly? Pl. intiff offered evidence, that his other tenants of the fame defcription with defendant paid quarterly; and held inadmiffible. Carter v. Pryke, Peake's Ni. Pri. Caf. 95. pl. 5, &c. 10. In an action for a falfe return to a writ of mandamus, the Ante, queftion was, Whether there was a cuftom that the township of H. (A. b. 15.) fhould contribute one-fifth of the money raised for the reparation and fupport of the parish church of B.? To prove it, evidence was admitted on the part of B. of certain accounts of their own wardens in 1670, in which were the following entries: "Received of H., "who this year difputed this our ancient cuftom, but after we had "fued them paid it accordingly, 8., and 17. cofts." And at the head of the page it was written, "It is an ancient custom thus to "proportion the church lay; 1, the chapelry of H. pays one"fifth; B. a third of the remainder, and the reft to be equally "divided according to the churchwardens of the feveral other "townships in the parish." The court were of opinion, that the first entry was evidence, because it charged the parish officers with the receipt of money; and the fecond as referring to it, and being part of the fame tranfaction. And per Lord Kenyon, C. J.—I have a ftrong opinion that without the reference the fecond entry would be evidence, because usages relating to parishes must be got out of the parish books. Stead v. Heaton, 4 Term Rep. B. R. 669. 11. Trespass for breaking and entering plaintiff's clofe. Plea, that an ancient meffuage and 12 acres of land were immemorially parcel and a cuftomary tenement of the manor of A., and that there is a cuftom in the manor, "that from time whereof, &c. "the customary tenant of the faid customary tenement for all the "time aforefaid has had right of common," c. Replication traverfing the custom. Held by Wilfen, J. at the trial, and afterwards in B. R. that the plaintiff may prove that the tenement was built within the last 20 years, and not upon the fcite of any ancient meffuage; for the antiquity of the mefluage forms part of the custom traverfed, which is thus difproved. Dunstan v. Trefidder & al., 5 Term Rep. B. R. 2. (T. b. 26) Customs of Merchants, and of Trade. 12 Vin.215. To prove the ufage as to the time of unlading veffels in the fishing trade at a particular place, evidence may be given of the practice of the fame trade at another place. Noble & al. v. Kennoway, Dougl. 492. (T. b. 26. 2) Criminal Conversation. 1. IN an action for criminal converfation, there must be evidence Poft. of a marriage in fact; acknowledgment, cohabitation, and (T. b. 69.) reputation are not fufficient. Morris v. Miller, 4 Burr. 2057. 1 Blackft. Rep. 632. VOL. IV. Υ 2. But 12 Vin.215. Pot. 2. But it is not neceffary to call one of the fubfcribing witnesses to the register-book to prove the identity of the perfons married. For a copy of the regifter is fuflicient evidence of the marriage in fact between perfons of the defcription there mentioned, and any evidence which fatisfies a jury as to the identity of the plaintiff and his wife being the perfons married, is fufficient. As if the handwriting of the hufband and wife to the register is proved; or bellringers come to the parties, and faid they rung for the wedding, and were paid by them, &c. Birt v. Barlow, Mich. 1779. K. B. Bull. L. N. P. 27. Dougl. 162. (T. b. 27) Evidence relating to Deeds. 1. IN an action on a bill of fale the declaration stated, that it was made by the defendants, fealed by the feal of one of them for and on behalf of himself and the other, and by the authority of the other. It appeared in evidence at the trial, that one of the defendants in the other's prefence, and by his authority, executed the inftrument for both, they being partners in the tránfaction. But there was but one feal, and it did not appear that he had put it twice on the wax, or delivered it twice. Held by B. R. that the execution was clearly good. That no particular Jones, 268. mode of delivery is neceffary, for it is fufficient if the party executing a deed treats it as his own; and they relied principally on this deed having been executed by one defendant for himself, and the other in the prefence of that other. Ball v. Dunsterville and another, 4 Term Rep. B. R. 313. Vide Lord cafe, Sir W Ante, pl. 10. 2. Debt on bond averred to have been made and fealed, &c. At the trial it appeared to have no feal, but a mark of a peculiar kind had been made with a pen in the place where bonds are ufually fealed. Rooke, J. admitted evidence to fhew a custom in Jamaica, where it was made, to execute bonds in this manner. The court of C. B. granted a rule nifi to fet afide the verdict obtained by the plaintiff on this ground; but it was difcharged by confent, the parties having agreed to a compromife. Adam & Ux. Executrix v. Kerr, 1 Pull & Bofan. 360.. 3. It is the practice to admit as proof of the execution of deeds and bonds, proof of the hand-writing of the fubfcribing witnefs, (A. b. 15) where it appears he is out of the kingdom; but it is otherwife of entries in the books of bankers, or other perfons keeping books refpecting their trade or bufinefs. They can only be proved by the clerks who have made the entries, as they may give material evidence independent of the entries from their acquaintance with the dealings upon which, it is founded. But a mere inftrumentary witnefs only fubfcribes his name in evidence of the execution of the inftrument. Ruled per Lord Kenyon, C. J. in Cooper (A. 2.) v. Marfden, 1 Ffpin. Ni. Pri. Ca. 2. See arte, 4. Who 4. Whoever produces a book, must establish it before he gives Ante, it in. Therefore, on an information in quo warranto, when pro- (A. b. 15.) fecutor produced a book, which appeared to be only minutes of corporate acts ten years ago, and written by the profecutor's clerk, who was no officer of the corporation, it was held inadmiffible, being objected to on the other fide as not being a corporation book. Rex v. Motherfell, 1 Str. 93. 5. A counterpart of a deed has been allowed in evidence when Ante, the original cannot be found, and there is probable proof that (A. b. 27.) there was an original; as a counterpart of a leafe, where the lef for himself acknowledged that he made a lease of which this was a counterpart. Per C. B. 6 Ann. Inter. A. and Whitcomb, 4 Com. Dig. tit. Evidence (B. 4.) (T. b. 30) Descent. A Customary of a manor, ftating that it was written ex affenfu omnium tenentium being of great antiquity, found among the court rolls, and delivered down from fteward to fteward, although without fignature or date, is good evidence to prove the course of defcent within the manor *. Den ex dem. Goodwin and Wragg Ux. v. Spray, 1 Term Rep. B. R. 466. IF Parker, fup. and 5 Term Rep. B. R. 26. (T. b. 34) Earneft-money paid. The Effect thereof. F A. and B. agree to exchange horses, and B. give a halfpenny to A. to bind the bargain, A. may maintain an action against B. for not delivering his horfe, without alleging any delivery of or offer to deliver his own to B.; for the payment of earnest money vests the property of A's horfe in B. Bach v. Owen, 5 Term Rep. B. R. 409. 1. AC (T. b. 42) False Return. 12 Vin. 217 12 Vin 220 CTION for falfe return to a mandamus, commanding the Poft. defendant to deliver to a person duly elected town-clerk the (T. b. 5a). infignia of his office, and not duly elected returned. The plaintiff need not prove his having taken the facrament according to the rites of the church of England within a year next before his election fince 5 G. 1. Crawford v. Powell, 2 Burr. 1013. 2. But it is otherwife where an officer brings a mandamus to fwear him into his office, being then out of poffeffion. Tufton v. Nevinfon, 2 Ld. Raym. 1354, Y 2 |