to the plaintiff were produced, but it was proved that the intestate, at the time of his decease, had bona notabilia in another diocese in a different province; and no evidence was given as to the residence of the defendant at the death of the intestate; it was held that the letters of administration were not void, inasmuch as the other diocese in which the intestate had bona notabilia was in a different province. (a) 6. Title.-Payment of a small unvaried rent for a long series of years to the lord of a manor, is evidence only of a title to the rent, but not to the land. (b) Leases are prima facie evidence of a person's seisin, but are not direct or conclusive evidence thereof, without proof of the actual seisin of the lessees, unless the estates created by the leases appear to have expired before the time of living memory. (c) Trespasses on a common have been received as proofs of a right to the freehold. (d) The mere possession of land, if unexplained, is primâ facie evidence of an estate in fee-simple; and the party so in possession may maintain trespass against every unlawful invader. (e) Sworn copies of assessments to the land-tax will not be conclusive evidence of possession. (f) 7. Bankruptcy, Commissions of Bankrupt, and Pro (a) Stokes v. Bate, 5 B. & C. 491. See ante, 170-174. (b) Doe d. Whittock v. Johnson, Gow. 173. (c) Clarkson v. Woodhouse, 5 T. R. 412 n. (d) Barry v. Bebbington, T. R. 514. And see Stead v. Heaton, ib. 669. And see ante, pp. 94. 124. (e) 4 Taunt. 17; Ib. 547; 5 Taunt. 321; Harper v. Charlesworth, 4 B. & C. 574. As to possession of personalty being evidence of title, see ante, p. 124; and see Index, word Title. (f) Ongley v. Chambers, 1 Bing. 483. See post. ceedings under the same. -The bankruptcy of a person is proved by the production of the commission. (a) Wherever the assignees' title came in question, as the law originally stood, it was necessary to prove the commission, the petitioning creditor's debt, the trading, the act of bankruptcy, and the assignment. But by the 6 Geo. IV. c. 16, (b) it is now in most cases unnecessary to prove the debt, the trading, or the act of bankruptcy. (c) The commission is proved by producing it under seal, with the petition to the Chancellor on which it is granted. (d) It is said in a work of authority, that the assignment ought still in strictness to be proved by producing the deed, and proving the execution of the commission [quære assignment] (e) by an attesting witness, but by the general courtesy of practice in the King's Bench, it is admitted, unless there are substantial reasons to the contrary; (ƒ) and the author seems to think that no alteration as to this is made by the new Bankrupt Act. But it is submitted that under this act the execution of the assignment, except where it is disputed, is no longer necessary, and does not now de (a) 6 Geo. IV. c. 16. s. 92. And see Macheath v. Coates, 4 Bing. 34. Earith. Shroder, 1 Moo. & Malk. 24. Gomersall v. Serle, 2 Yo. & Jer. 5. (b) s. 91, continuing the 49 Geo.III. c. 121, s. 10. (c) See the exceptions stated in Eden's B. L. 354-374; 2 Phill. Ev. 319, 7th edition. (d) Eden's B. L. 352, 2d edition; 2 Phill. Ev. 317, 6th edition. (e) The word commission is here evidently inserted by mistake for assignment, as there is no attesting witness to a commission, and as a commission, as Mr. Eden himself observes, is proved by producing it under the great seal. See also 2 Phill. Ev. 317, 6th edition. (f) Mr. Eden's (now Lord Henley) B. L. 353, citing Orr v. Morice, 3 Brod. & B. 139; and Pearce v. Hooper, 3 Taunt. 60; 5 Taunt. 89. pend on the courtesy of practice. I shall shortly cite the sections of the act relating to this point, and then mention the cases decided upon it. By the 6 Geo. IV. c. 16, (a) the Lord Chancellor is empowered to appoint a person to enter of record all matters relating to commissions; and by sec. 96, no commission of bankrupt, adjudication of bankruptcy, or assignment of the personal estate of the bankrupt, shall be received in evidence in any court of law or equity, unless the same shall have been first so entered of record as aforesaid; and of this entry a certificate is to be indorsed, which, upon production, is to be received as evidence of the enrolment. In the first case decided upon these clauses, (b) it was held by the late Chief Baron (Alexander) that these clauses did not render proof of the execution of the assignment to the provisional assignee unnecessary, although the assignment be entered of record. And in another case, decided about the same time, (c) Lord Tenterden expressed an opinion that the assignment. both to the provisional and particular assignees, must be proved, notwithstanding the clauses above referred to. However, in a subsequent case (d) it was held, that proof of the execution of the assignment to assignees of bankrupt enrolled under the new act, is not necessary, unless notice of the intention to dispute it be given. And this last seems to be the correct rule, and will probably be recognized as such by succeeding judges. (a) s. 95. (b) Gomersall v. Serle, 2 Yo. & Jer. 5. (c) Hunt v. Connor, 2 Yo. & Jer. 10 n; and Chitt. Collec. Stat. 110. (d) Tucker v. Barrow. 1 Moo. & Mal. 137; 3 Car. & Pay. 85. S. C. but not S. P. 7 B. & C. 623. It should be observed, that in the last edition of Mr. Phillips's work on Evidence, (a) it is laid down, without any qualification, that "the commission and assignment of personal estate, when entered of record pursuant to the 96th section of the new act, prove themselves;" and the case of Tucker v. Barrow, and the 96th section, are cited for this opinion; but this is incorrect, as, according to the case cited, if the commission be disputed, the execution of the assignment must be proved. The 6 Geo. IV. c. 16. s. 4, does not apply to the enrolment of proceedings anterior to that act. (b) 8. Discharge of Insolvent Debtors.-Where the insolvent act vests the estate in the clerk of the peace, in order to prove the discharge of the insolvent debtor under the act, the clerk of the peace must be called, and the order of the court of quarter sessions given in evidence; (c) but when an insolvent debtor is discharged under an act which vests his estate in the provisional assignee, a paper purporting to be a copy of the original discharge, and signed by the clerk of the proper officer of the court, with the impression of the seal affixed to it, is proper evidence to prove the discharge, without producing the certificate, or proof of its being an examined or attested copy. (d) The office copy of an insolvent's petition, attested by the officer of the Insolvent Debtors' Court, is sufficient to prove an allegation that the petition subscribed by the insolvent was duly filed. (e) (a) 2 Phill. Ev. 321. 7th edit. 231. (e) Gould v. Hume, 3 Car. & Pay. 625; and see Jones v. Nicholls, 2 Man. & Ry. 12. 9. Enrolment.-The enrolment of a bargain and sale under the 27 Hen. VIII. c. 16, is proved by the endorsement of the fact by the proper officer, the clerk of enrolments, according to the form of the statute; (a) and an indorsement of the date of enrolment by the same officer, is part of the record and conclusive, as to the date; (b) and the same rule extends to the date of the enrolment of a memorial of annuity deeds. (c) If an annuity be not enrolled, the proof of this fact lies on the defendant; (d) and if it be necessary to produce evidence of the enrolment, the certificate of enrolment appearing upon the deed, indorsed by the proper officer, is sufficient evidence of its having been enrolled. (e) An examined copy of the enrolment of a bargain and sale of freeholds pursuant to the statute 27 Hen. VIII. c. 16, is as good evidence as the examined copy of the original itself; and where the original is lost or destroyed, a copy of the enrolment, signed by the proper officer who has the custody of the enrolment, and proved by oath to be a true copy, will have the same force and effect as the original itself would have, if produced. (f) But a copy of the enrolment of a bargain and sale of a chattel interest, or of any other deed enrolled for safe custody, is not admissible in evidence, except as against the party acknowledging the deed, or persons claiming under him, and against such party and all claiming under him, an examined (a) Kinnersley v. Orpe, Doug. 56. (b) The King v. Hopper, 3 Pri. 495. (c) Garrick v. Williams, 3 Taunt. 540; 1 Phill. Ev. 387. (d) Doe d. Griffin v. Mason, 3 Camp. 7. Doe d. Lewis v. Bingham, 4 B. & A. 672. (e) Doe d. Lewis v. Bingham, 4 B. & A. 672. (f) 10 Ann. c. 18. s. 3; 14 East, 231; 1 Scho. & Lef. 207. Doe d. Ubell v. Kilner, 1 Car. & Pay. 289. |