presumption of his having stolen them; but if they were found at his lodgings, some time after the larceny, and he refuse to account for his possession of them, this, together with proof that they were actually stolen, would amount, not to a violent, but to a probable presumption merely. So, upon an indictment for arson, proof that property, which was in the house at the time it was burnt, was afterwards found in the possession of the defendant, raises a probable presumption that the defendant was present and concerned in the arson. See R. v. Richman, 2 East, 1035. Where, upon an indictment for perjury, in falsely taking the freeholder's oath in the name of J. W. at a parliamentary election, it was proved that the freeholder's oath was administered to a person who poled on the second day of the election by the name of J. W., that there was no such person in fact as J. W.; that the defendant voted on the second day, though he was not a freeholder; that he did not vote in his own name, or in any other than the name of J. W.; that there was but one false vote given on the second day's poll; and that the defendant some time afterwards boasted that he had done the trick, and was not paid enough for the job, and was afraid he should be pulled for his bad vote: the court held that this was sufficient evidence for the jury to presume that the defendant voted in the name of J. W., and consequently to find him guilty of the charge in the indictment. R. v. Price, 6 East, 323. Upon an indictment for disposing of and putting away a forged bank note, knowing it to be forged, proof that the defendant has passed other forged notes, raises a probable presumption that he knew the note, for the passing of which he is now indicted, to be forged; and if, in addition to this, it be proved that the defendant, when he passed these notes, gave a false name or address, it amounts to a violent presumption of his guilty knowledge. And the same, upon indictments for uttering counterfelt money. Intention, also, can be but matter of presumption, arising either from the facts stated in the indictment, or from extrinsic facts stated in evidence. See ante, p. 65; and see upon the subject of presumptions generally, Arch. Pl. & Ev. 348-353.

Although presumptive evidence must, from necessity, be admitted, yet in felony and treason it should be admitted cautiously. And Sir Matthew Hale in particular lays down two rules, most prudent and necessary to be observed, in this respect: first, Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and secondly, Never to convict any person of murder or manslaughter, till at least the body be found, -on account of two instances he mentions, where persons were executed for the murder of others who were then alive, although missing. 2 Hale, 290.

SECT. 3.

Written Evidence.

1. Records.

2. Matters quasi of record.

3. Written instruments of a private nature.

1. Records.

Public statutes.] Public statutes, the rules of the common law, and the general customs of the realm, are never required to be set forth in the pleadings, or proved at the trial; because the court are bound ex officio to take notice of them. And therefore, when the printed copy of a public statute is produced at a trial, as is frequently the case, it is not to be deemed to be produced as evidence, but rather in aid of the memory of the court and jury. Arch. Pl. & Ev. 358. and see Gilb. Ev. 10. By stat. 41 G. 3. c. 90. s. 9, the statutes of Ireland prior to the union, printed and published by the King's printer, shall be received as conclusive evidence in any court of Great Britain.

Where the printed copy of a public statute was produced in proof of certain facts recited in the preamble, the court held that it was admissible evidence for that purpose. 4 M. & S. 352.

A

Private statutes.] Private statutes and particular customs, must be set forth in pleading, and proved if put in issue. private statute is proved by an examined copy, Gilb. Ev. 12. See 1 Arch. Pr. B. R. and see 12 East,479, unless it be otherwise directed by the statute itself. As to the distinction between public and private statutes, see Arch. Pl. & Ev. 359, 360.

Records of the King's courts.] A record is proved, either by producing the record itself; or by an exemplification of it under the great seal, which is of itself a record, and needs no further proof; Gilb. Ev. 14. 10 Co. 93; or by an exemplification of it under the seal of the court (whether of a court at common law or of one created by act of Parliament, 2 Sid. 146.

Gilb. Ev. 19. 17. 10. Co. 93. and see Hardr. 120) and which also needs no further proof; Gilb. Ev. 19; or by an examined copy: 10 Co. 92 b. 2 Ro. Abr. 678. l. 45. Hardr. 119:-according to circumstances.

Where matter of record is but mere inducement, and not the gist of the pleadings, it may be proved by an examined copy. Gill. Ev. 26. This copy may be had from the officer in whose custody the record is; and the person who is to prove it at the trial, must examine the copy, whilst the officer reads the record. It is not necessary that the officer should also read the copy, whilst the witness examines the record. 1 Camp. 469. 471 n. 2 Taunt. 52.

But where matter of record forms the gist of the pleading, it must be proved by the production of the record itself, or by an exemplification of it. If it be a record of the same court in which it is pleaded, the record itself must be produced; if it be a record of another court, an exemplification (that is, a copy under seal) of it, is sufficient.

Where the record of an inferior court forms the gist of a pleading in the court of King's Bench, and is to be proved accordingly by an exemplification, sue out a certiorari, either with the cursitor, or with the proper officer of the King's Bench,, directed to the chief justice, judge, or officer of the inferior court in whose custody the record is supposed to be, requiring him to certify the record to the court of King's Bench; and thereupon an exemplification of the record, under.the seal of the inferior court, will be transmitted to the court of King's Bench, to be there used as evidence. See 2 Arch. Pr. B. R. 41 ; and see the form, 6 Went. 24. But where a record of the court of King's Bench is to be proved in an inferior court, you must sue out a certiorari with the cursitor, directed to the Chief Justice of the King's Bench, requiring him to certify the record to the court of Chancery; and the record being thereupon accordingly certified, an exemplification of it under the great seal is thence sent by mittimus, to the inferior court, to be there used as evidence. See Gilb. Ev. 14, 15. 1 Arch. Pr. B. R. 139.

So, where the record of a court of quarter sessions is pleaded in a court of oyer and terminer, or the converse, or where the record of one court of oyer and terminer is pleaded in another, the exemplification, in strictness, should in like manner be obtained upon certiorari; but I believe the general practice is to apply simply to the clerk of the peace or clerk of assize, who will make it out for you accordingly, without writ, or will attend with the record itself at the trial.

A record is very seldom the gist of a pleading in criminal cases, excepting in a plea of auterfois acquit, &c. or counterplea of clergy; and in the former, it is almost always a record of the same court that is pleaded. The record in a counterplea of clergy is proved by the production of the record itself, if it be

a record of the same court, or by an exemplification, if it be the record of another court, as above mentioned. Or, if it be the record of another court, it may be proved in the manner provided by statute, thus: By stat. 34. and 35. H. 8. c. 14, the clerk of the crown, or of the peace, or of assize, shall certify a transcript briefly of the tenor of the indictment, outlawry, or conviction and attainder, into the King's Bench, in forty days; and the clerk of the crown, when the judges of assize or justices of the peace write to him for the names of such persons, shall certify the same, with the causes of the conviction or attainder. Or, by stat. 3. W. and M. c. 9. s. 7, the clerk of the crown, clerk of the peace, or clerk of assize, where a person admitted to clergy shall be convicted, shall, at the request of the prosecutor or any other on the King's behalf, certify a transcript briefly and in few words, containing the effect and tenor of the indictment and convictiou, of his having the benefit of clergy, and the addition of the party, and the certainty of the felony and conviction, to the judges where such person shall be indicted for any subsequent offence.

In all other cases but those provided for by these statutes, where a copy of a record is given in evidence, it must be a copy of the whole record: because the omission of part, might have the effect of altering the sense and import of the residue. Gilb. Ev. 23. 3 Inst. 173. Thus, to prove a verdict, you must give in evidence a copy of the whole record, including the judgment; Bul. N. P. 234. Gilb. Ev. 37; for otherwise it would not appear but that judgment had been arrested or a new trial granted. Bul. N. P. 234. 1 Str. 162. But if it be required to prove merely that a certain trial was had, the nisi prius record, with the posted indorsed upon it, and regularly stamped and marked, is sufficient evidence for that purpose. Barnes, 449. and see 2 Stark. 364. If it be necessary to prove what a witness said upon a former trial, it may be read from the judge's notes, or proved upon oath from the notes or recollection of any person who was present at the time; 3 Taunt. 262. 12 Mod. 318. Gilb. Ev. 68, 69; but in order to let in such evidence, it must first be proved that the former trial took place; and this can be done only by giving in evidence an examined copy of the record, Gilb. Ev. 68, or the nisi prius record with the postea indorsed on it, as above mentioned. 1 Str. 162.

In order to prove a writ, if it be the gist of the pleading, you must get it returned, and then procure and give in evidence an examined copy of it. See 1 Arch. Pr. B. R. 140. But if it be matter of inducement merely, it is not necessary that it should be returned, or proved by an examined copy: Gilb. Ev. 39; but the writ itself, if in your possession, may be given in evidence; or if in the possession of the other party, then upon proving the service of a notice upon him to produce it, and

that it has not been returned and filed, but that it was in the other party's possession after the day on which it was returnable, you will be allowed to give a copy of it in evidence. 4 Esp. 160. See Hardr. 323. Alleyn. 18.

A judgment of the House of Lords, is proved by an examined copy of it from the minute book; Cowp. 17; which may be had, upon application at the office of the clerk in parliament.

Convictions before justices of peace are proved by examined copies, which the clerk of the peace of the proper county will make out for you upon an application for that purpose.

To prove the passing of a fine, the chirograph is conclusive evidence, without further proof; Plowd. 110 b. Gilb. Ev. 24. Bul. N. P. 229; but if it be necessary to prove the proclamations, that must be done by an examined copy. Gilb. Ev. 25 6 Taunt. 485. A common recovery is proved in the same manner as an ordinary judgment. See Arch. Pl. & Ev. 364. 360. & See stat. 27 El. c. 9. 14 G. 2. c. 20. s. 4.

To prove a deed which has been enrolled, the indorsement of the enrollment is evidence sufficient, without further proof of the deed; Gilb. Ev. 24.97. 1 Salk. 280. & seel Doug. 56; but if the deed be lost, it can be proved only by an examined copy of the enrollment. Gilb. Ev. 25. Arch. Pl.and Ev.365.134. All this however must be understood of deeds only which need enrollment; for if any other deed be enrolled (as for instance a bargain and sale for years, or the like) and be afterwards offered in evidence, it must be proved in the ordinary way, by the subscribing witness. Gilb. Ev. 99. 5 Co.54. Style 445. 1 Salk. 280,

Letters Patent.] Letters Patent may be given in evidence, without further proof; or they may be proved by exemplifications under the great seal. See Arch. Pl. and Ev. 365. 134.

2 Matters quasi of record.

Proceedings in Parliament.] Entries in the journals of the House of Lords and House of Commons, may be proved by examined copies from their minute books. Cowp. 17. 2 Doug. 594. The journals of the House of Lords have been holden evidence to prove, not only the address of the Lords to the King, but the King's answer also. 5 T. R. 445. But the resolutions of either house, with a view to ulterior proceedings, are no evidence of the facts therein stated; as, for instance, where the House of Commons resolved that a plot against the government existed, the resolution was holden to be no evidence of the existence of such a plot. 4 St. Tr. 39.

Proceedings in courts of Equity.] The bill and answer may be proved by examined copies, Gilb. Ev. 56. 1 Barn. & Ald. 182. 3 Camp. 401, which you may obtain from the six clerks' office,