handwriting, it was held that the execution might be proved by the latter witness, the whole being considered as one transaction. Parke v. Mears, 2 B. & P. 217; and see Anon., Arch. Pl. & Ev., 1st ed. 378. In proving the execution of a deed, the attesting witness frequently states that he does not recollect the fact of the deed being executed in his presence, but that, seeing his own signature to it, he has no doubt that he saw it executed; this has always been received as sufficient proof of the execution. Per Bayley, J., Maugham v. Hubbard, 8 B. & C. 16; per Taunton, J., R. v. S. Martin's, Leicester, 2 Ad. & E. 213. See Wright v. Sanderson, 9 P. D. 149, C. A., cited post, p. 147. As to a qualified execution, see Exchange Bank of Yarmouth v. Blethen, 10 Ap. Ca. 293, P. C. As to the priority of two deeds executed on the same day, vide ante, p. 130. The grantee under a deed is not competent to attest the execution thereof by the grantor. Seal v. Claridge, 7 Q. B. D. 517, C. A.

Identity of persons signing, &c.] Some evidence of the identity of the party to the instrument must be given, though very slight evidence will be sufficient. Where the proof of the acceptance of a bill was simply the handwriting of the attesting witness on an acceptance, some evidence of the identity of the defendant and the person whose acceptance is thus proved, was held necessary; Whitelocke v. Musgrove, 1 Cr. & M. 511; and it has been thought not sufficient merely to prove that a person calling himself by the same name (which was common in the neighbourhood where the witness saw the signature put) accepted the bill. Jones v. Jones, 9 M. & W. 75. Where the witness to a bond stated that he saw it executed by a person who was introduced under the name of Hawkshaw (the name of the defendant), but could not identify him, the plaintiff was non-suited. Parkins v. Hawkshaw, 2 Stark. 239; Middleton v. Sandford, 4 Camp. 34. But where the attestation states the residence of the party, proof that the party sued resided there would be prima facie evidence of identity. See Whitelocke v. Musgrove, and Jones v. Jones, supra; per cur. Thus where the acceptor was described as 'C. B. Crawford, East India House," proof that the signature was that of a person of the same name, a clerk of the East India House, was held to be prima facie evidence of identity; Greenshields v. Crawford, 9 M. &W.314; and in Roden v. Ryde, and Sewell v. Evans, 4 Q. B. 626, it was held that, unless the name is so common as to neutralize the inference of identity, or other facts appear to raise a doubt, identity of name is primâ facie enough to charge the defendant. Accord. Hamber v. Roberts, 7 C. B. 861. See further, Birt v. Barlow, and Hubbard v. Lees, cited ante, p. 124. That the defendant had spoken of the contents of the deed is evidence of identity. Doe d. Wheeldon v. Paul, 3 C. & P. 613. Where a note was made payable to J. H. and indorsed by a person so named, and there were two persons, father and son, named J. H., it will be presumed that the son was the payee, if the son indorsed it. Stebbing v. Spicer, 8 C. B. 827. In an action by an indorsee against the acceptor of a bill, whereof S. was the payee, the plaintiff proved that a person calling himself S. came to the plaintiff's residence with the bill in question and a letter of introduction, proved to be genuine, which was expressed to be given to a person introduced to the writer as S., and also another bill drawn by the writer of that letter. The bearer of these documents, after remaining some days at the plaintiff's residence, indorsed to him the bill in question. This was held to be prima facie evidence of the identity of this person with S. Bulkeley v. Butler, 2 B. & C. 434.

Sealing and Delivery.] The sealing of the deed need not take place in

the presence of the witness; it is sufficient if the party acknowledge an impression already made. Where one partner in the presence of his copartner executed a deed for both, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, it was held sufficient; for that no particular mode of delivery was requisite, and it was enough if a party executing a deed treated it as his own. Ball v. Dunsterville, 4 T. R. 313. But where a deed is executed under the authority of a power requiring it to be under the hands and seals of the parties, the parties must use separate seals. Thus, by stat. 8 & 9 Will. 3, c. 30, certificates were required to be under the hands and seals of the overseers and churchwardens; it was held that a certificate signed by two churchwardens and one overseer, but bearing two seals only, was not a valid certificate. R. v. Austrey, 6 M. & S. 319. The circumstance of a party writing his name opposite to the seal on an instrument which purports to be sealed and delivered by him, is evidence of a sealing and delivery to go to a jury. Talbot v. Hodson, 7 Taunt. 251. So, where the defendant delivers to the plaintiff a deed signed and sealed and expressed to be signed, sealed, and delivered, it will be taken as against the defendant that it has been also delivered. Xenos v. Wickham, L. R., 2 H. L. 296. Where a party, A., executes a deed with a blank in it, which is afterwards filled up with his assent in his presence, and he subsequently recognizes the deed as valid, the filling up of the blank will not void it; for, till the blank is duly supplied, it is incomplete and in fieri. Hudson v. Revett, 5 Bing. 368; Hall v. Chandless, 4 Bing. 123. It is essential, however, that the instrument, in its complete state, should have been seen by A., or that he should have known the state in which it was when he is taken to have re-delivered it. Société Générale de Paris v. Tramways Union Co., 14 Q. B. D. 424, C. A. affirm. in D. P. sub nom. Id. v. Walker, 11 Ap. Ca. 20. For generally a deed executed in blank and left to be filled by another, who has no authority under seal, is void; Hibblewhite v. M⭑Morine, 6 M. & W. 200; Tayler v. Gt. Indian Peninsular Ry. Co., 4 De G. & J. 559; 28 L. J. Ch. 709; and Texira v. Evans, 1 Anstr. 228, contra, is not law. While the deed is still in the hands of the party executing it, another name may be inserted, and it may be re-executed, without avoiding it as to the first parties, or requiring a new stamp. Spicer v. Burgess, 1 C. M. & R. 129; and in similar circumstances a clause may be struck out; Jones v. Jones, 1 Cr. & M. 721. A deed was executed by a son of the defendant, T. F., thus.

66

J. W. F. for T. F.;" and the defendant, when subsequently shown the deed so executed, said his son had authority to execute it for him, and that he adopted his son's act; this was held to be a re-delivery by the defendant. Tupper v. Foulkes, 9 C. B., N. S. 797; 30 L. J., C. P. 214. A deed executed by a marksman may be proved by a person who has seen the party make his mark, and can speak as to its peculiarities. George v. Surrey, M. & M. 516.

When a subscribing witness is dead, proof of the handwriting of such witness is evidence of everything on the face of the paper which imports to be sealed by the party. Per Buller, J., Adam v. Kerr, 1 B. & P. 361. And where the "signing and sealing" are alone noticed in the attestation, yet this is evidence of the delivery also. Semb. Hall v. Bainbridge, 12 Q. B. 699. Where the party named has acted under the deed, it will be presumed as against him to have been executed by him, although the seal has no signature annexed, nor any attestation; Cherry v. Heming, 4 Exch. 631; for signature is not necessary to the execution of a deed, unless it be under a power which requires it; and it also seems that neither wax nor wafer are necessary, and that if a stamped impression be made on the paper in place of a seal as commonly used, it is a sufficient sealing,

even under a power which requires a seal. Sprange v. Barnard, 2 Bro. C. C. 585. And it has been held that "to constitute a sealing neither wax nor wafer, nor a piece of paper, nor even an impression is necessary." In re Sandilands, L. R., 6 C. P. 411. See also Sugden on Powers, 8th ed. 232. But there must in such case be circumstances from which it may be inferred that the document was in fact sealed. See National Provincial Bank of England v. Jackson, 33 Ch. D. 1, C. A.

In the delivery of a deed no particular form is necessary. Throwing it upon a table with the intent that the other party shall take it up, is sufficient. Com. Dig. Fait (A. 3). See Tupper v. Foulkes, ante, p. 135.

If the deed after sealing be tendered to the covenantee, and he expressly reject it, and refuse to take any benefit from it, the execution is incomplete. This defence was formerly admissible in evidence under non est factum. Whelpdule's case, 5 Rep. 119a; Xenos v. Wickham, 13 C. B., N. S. 435; 33 L.J., C. P. 13; Ex. Ch. reversed on another ground; L. R., 2 H. L. 296. It must now, however, be pleaded specially. Rules, 1883, 0.xix. r. 15, ante, p. 78.

In

Execution under power of attorney or order of court.] Where a deed is executed by virtue of a power of attorney, the power should be produced; Johnson v. Mason, 1 Esp. 89; and proved; 1 Phill. Ev. 505, 4th ed. some instances a general agent has been presumed to have such authority. Doe d. Macleod v. E. London Waterworks, M. & D. 149. See Tupper v. Foulkes, ante, p. 135. But, in general, the agent must be authorised by deed. Berkeley v. Hardy, 8 D. & Ry. 102; Hibblewhite v. M'Morine, ante, p. 135.

By the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 46, the donee of a power of attorney, whenever granted, may execute any instrument thereunder with his own signature and seal. By sect. 48 (1, 6), an instrument creating a power of attorney (whenever executed) may, with an affidavit of verification, be deposited in the central office (vide ante, p. 97), and (4) "an office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument, and of the deposit thereof in the central office." Sufficient evidence is probably equivalent to prima facie evidence. See Barraclough v. Greenhough, L. R., 2 Q. B. 612, Ex. Ch., cited post, p. 149. By the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 8, if a power of attorney given after December 31st, 1882 (sect. 8) for valuable consideration is therein expressed to be irrevocable, then, in favour of a purchaser, (i.) the power shall not ever be revoked by the donor, or by his death, &c.; (ii) any act done by the donee of the power shall not be prejudiced by any act done by the donor, or by his death, &c.; (iii.) neither the donee of the power nor the purchaser shall be affected by notice of anything done by the donor, or by his death, &c. By sect. 9, if such power, given for valuable consideration or not, is therein expressed to be irrevocable for a fixed period not exceeding one year, then, in favour of a purchaser, during that period, the above results shall take effect. As to a deed being binding on an agent who executed it as such, as well as on his principal, see Young v. Schuler, 11 Q. B. D. 651, C. A., cited ante, p. 18.

By the Judicature Act, 1884, s. 14, when any person neglects or refuses to comply with a judgment or order directing him to execute any document, or to indorse a negotiable instrument, the court may order it to be executed or indorsed by a person nominated by the court, and when so executed or indorsed it "shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it." See Howarth v. Howarth, 11 P. D. 95, C. A. In order to prove a deed so executed, it would seem necessary, in an action

by or against a third party, to prove the original judgment or order (vide ante, pp. 107, 111), the neglect or refusal to comply therewith, the order authorising execution (vide ante, p. 111), and the execution by the nominee of the court. But proof only of the last-mentioned order, and of the execution, would probably be sufficient in an action against the person who failed to execute the deed, brought by the person who obtained that order.

Signature, whether necessary. -Indenture.] Signature forms no part of the execution of a deed, but as the Stat. of Frauds, by sects. 1, 3, 4, and 17, requires interests in land to be created, surrendered, or assigned by instrument in writing, and certain contracts to be evidenced by writing, signed, the question has arisen whether an unsigned deed satisfies this statute or not. The better opinion now is that the statute operates on parol contracts only, and does not affect deeds; Shep. Touchst. by Preston, c. 4, p. 56 (24); Aveline v. Whisson, 4 M. & Gr. 801; Cherry v. Heming, 4 Exch. 631, and that therefore an unsigned deed will be good notwithstanding the statute. The opinion of Blackstone was the other way. 2 Bl. Com. 307. By stat. 8 & 9 Vict. c. 106, s. 5, a deed executed after the 1st October, 1845, “purporting to be an indenture, shall have the effect of an indenture, although not actually indented."

Per

Escrow.] "Where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some contemplated event should have happened, the deed is not a complete deed and perfect deed until that event has happened.' Kidner v. Keith, 15 C. B., N. S. 35, 43, per Williams, J.; Bowker v. Burdekin, 11 M. & W. 128, 147, per Parke, B. A condition previously expressed, though not introduced into the act of delivery, is sufficient to make it a delivery as an escrow. Abbott, C. J., Johnson v. Baker, 4 B. & A. 441; and see Murray v. Stair, El. of, 2 B. & C. 82. Where a person delivers a deed in the presence of a witness, but retains it in his own possession, there being nothing to show that it was not intended to operate immediately, it will take effect as a deed and not as an escrow; Doe d. Garnons v. Knight, 5 B. & C. 671; Xenos v. Wickham, L. R., 2 H. L. 296. The delivery of a deed to a third person for the use of the party in whose favour the deed is executed, has the same effect. Doe d. Garnons v. Knight, supra. But the delivery by the grantor of a grant executed by him, to the solicitor of the grantee, may be shown to have been conditional only. Watkins v. Nash, L. R., 20 Eq. 262. In a case where a debtor executed a mortgage to his creditor unknown to the latter, and kept it twelve years in his own custody till he died, the deed was held valid from the date in the absence of evidence to show that it was an escrow. Exton v. Scott, 6 Sim. 31. Where A. exe

cutes an instrument and delivers it to B. as an escrow to be delivered to C. on a certain event, possession by C. is primâ facie evidence against A. of the performance of the condition. Hare v. Horton, 5 B. & Ad. 715. And delivery to a third person is not essential to a delivery as an escrow. Gudgen v. Besset, 6 E. & B. 986. Where the delivery as an escrow is proved by a letter sent with the instrument, it is for the court to construe its effect; aliter if proved by oral evidence of extrinsic facts. Furness v. Meek, 27 L. J., Ex. 34. The defence that the alleged deed was delivered as an escrow only, on a condition which has not been performed, was formerly raised by the plea of non est factum; Millership v. Brookes, 5 H. & N. 797; 29 L. J., Ex. 369; but it would now require to be specially pleaded. See Rules, 1883, O. xix. r. 15, ante, p. 78.

Proof of attested deed by secondary evidence.] It has been sometimes

contended that, if the original document has been attested, the attesting witnesses must be called. But where the plaintiff declared on a deed which he averred to be in the possession of the defendant, who pleaded non est factum, and at the trial the deed was proved to be in the hands of the defendant, who had been served with notice to produce, it was held, that, on the non-production of the deed, the plaintiff might give oral evidence of the contents without calling the subscribing witness, although his name was known to the plaintiff, and he was actually in court. Cooke v. Tanswell, 8 Taunt. 450. So in debt by landlord for double value; plea "no demand"; the plaintiff, having given notice to produce, offered to prove the original demand by a copy in which an attestation had been also copied, and to show that the original was signed by him: held, that the production of the attesting witness (though known to the plaintiff) was unnecessary. Poole v. Warren, 8 Ad. & E. 583. So where notice was given to produce a deed in the defendant's possession, and the defendant at the trial refused to do so, the plaintiff was allowed to prove it by a copy without calling any attesting witness, and it was held that the defendant could not put the plaintiff to a strict proof by afterwards producing the attested original. Jackson v. Allen, 3 Stark. 74; Edmonds v. Challis, 7 C. B. 413. Where the plaintiff declared on a lost deed, and a witness stated that there were subscribing witnesses, but he did not know their names, it was ruled by Lord Kenyon that the plaintiff might recover without calling them. Keeling v. Ball, Peake, Ev. App. 82. But he said that "had it appeared who they were, the plaintiff must certainly have called them." If in such a case the witnesses are dead, and the execution by the party to the instrument is proved, it is questionable whether proof of the handwriting of the witnesses is in any case necessary; at all events, if the attesting witness can be identified with a deceased person, this will dispense with further proof of his handwriting; for the only object of such last-mentioned proof is to establish his identity. R. v. St. Giles's, Camberwell, 1 E. & B. 642; 22 L. J., M. C. 54.

Proof and comparison of handwriting.] The result of the various cases on this head is thus stated by Mr. Justice Patteson in Doe d. Mudd v. Suckermore, 5 Ad. & E. 730, 731, where references to all the authorities will be found. "That knowledge" [i. e., of handwriting] "may have been acquired either by seeing the party write, in which case it will be stronger or weaker according to the number of times and the periods and other circumstances under which the witness has seen the party write, but it will be sufficient knowledge to admit the evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing his surname; or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the handwriting of the party, and having afterwards communicated personally with the party upon the contents of those letters or documents, or having otherwise acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate, or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and the witness, which, in the ordinary course of the transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party; evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him."

To prove the handwriting of a member of parliament, the opinion of a clerk employed to inspect franks, who never had occasion to verify his