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handwriting, was held insufficient. Batchelor v. Honeywood, 2 Esp. 714; Cary v. Pitt, Peake, Ev., App. 84. And where an attorney acted on a written retainer, purporting to be signed by A., B., and C., being acquainted with the handwriting of A. and B. only, his testimony to that effect is insufficient to prove the signature of C. Drew v. Prior, 5 M. & Gr. 264. A witness cannot be permitted to give his opinion of the handwriting from extrinsic circumstances, such as his knowledge of the party's character and habits. Da Costa v. Pym, Peake, Ev. App. 85.

In the case of ancient documents, where it is impossible for any witness to swear that he has seen the party write, it is sufficient if the witness has acquired his knowledge of the handwriting by the inspection of other ancient writings bearing the same signature, and preserved as authentic documents. B. N. P. 236; Taylor v. Cook, 8 Price, 652; and see other cases cited, Doe d. Mudd v. Suckermore, ante, p. 138; also Fitzwalter Peerage case, 10 Cl. & Fin. 193; Lindsay Peerage, 2 H. L. C. 557. Ancient writings (as a receiver's account 100 years old) may be laid before a witness at the trial for his inspection; and upon his judgment of their character, so formed, his belief as to the handwriting of the document in question may be inquired into. Doe d. Tilman v. Tarver, Ry. & M. 143; and see Roe d. Brune v. Rawlings, 7 East, 282. A copy of a parish register purporting to be signed by the curate eighty years ago, may be received with no other proof of handwriting than the evidence of the present parish clerk, who speaks from his having seen the same handwriting attached to other entries in the register. Doe d. Jenkins v. Davies, 10 Q. B. 314. In these cases the question often becomes one of skill; the character of the writing varying with the age, and the discrimination of it being assisted by antiquarian study. Per Coleridge, J., Doe d. Mudd v. Suckermore, 5 Ad. & E. 718.

It has been a question how far, and under what circumstances, hand-, writing in modern instruments can be proved or disproved by the testimony of a witness, founded on the mere comparison of different signatures. In the case of Doe d. Mudd v. Suckermore, ante, p. 138, the K. B. judges were equally divided on the question whether, after a witness had sworn to the genuineness of his signature, another witness (a bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely founded on a comparison pending the trial with other signatures admitted to be those of the witness. It has also been doubted whether a person practised in the examination of handwriting can be called to state his opinion whether a writing is in a feigned or a genuine hand. Gurney v. Langlands, 5 B. & A. 330; Doe d. Mudd v. Suckermore, 5 Ad. & E. 751. It has, however, been held that, under certain circumstances, the court and jury may be permitted to institute a comparison between documents for the purpose of verifying handwriting when a witness called expressly for that purpose would be rejected. Thus, in Griffith v. Williams, 1 C. & J. 47, it was held that the rule as to the comparison of handwriting does not apply to the court or jury, who may compare two documents when they are both properly in evidence. But the documents with which the handwriting is compared must be such as are in evidence for other purposes in the cause, and not put in or selected by the party merely for comparison. Doe d. Perry v. Newton, 5 Ad. & E. 514, 534; Griffits v. Ivery, 11 Ad. & E. 322. То put such selected documents into the hands of the witness, merely for the purpose of shaking his credit by subsequent independent evidence contradicting his testimony as to those documents, would tend to raise collateral issues. Hughes v. Rogers, 8 M. & W. 123. This course has, however, been held admissible where the object was to show that the plaintiff was

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the author of an anonymous letter, by putting in evidence other letters in which he had misspelt defendant's name in the same way as in the anonymous letter. Brookes v. Tichborne, 5 Exch. 929.

Some of the questions discussed above are now disposed of by the C. L. P. Act, 1854, s. 27, which provides, that "Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.'

This section allows documents proved to be genuine, but not relevant to the issue, to be put in for the purpose of comparison. Birch v. Ridgway, 1 F. & F. 270; Cresswell v. Jackson, 2 F. & F. 24. For this purpose the disputed writing must be produced in court; and the section does not therefore apply to documents which are not produced, and of which it is sought to give secondary evidence. Arbon v. Fussell, 3 F. & F. 152, cor. Wilde, B. Where the question is as to the handwriting of a witness, and the witness in cross-examination was induced to write on a piece of paper, this writing may be used for comparison under the section. Cobbett v. Kilminster, 4 F. & F. 490. It may, of course, be a question how far writing so obtained is a fair test of the ordinary handwriting of the witness. If the genuineness of the document sought to be put in is disputed, a collateral question is raised which must first be decided (Cooper v. Dawson, 1 F. & F. 550), like all other collateral issues, by the judge. Bartlett v. Smith, 11 M. & W. 483; Boyle v. Wiseman, 24 L. J., Ex. 284.

Proof of execution, when dispensed with.] When a deed is thirty years old, it proves itself, and no evidence of execution is necessary. B. N. P. 255. So, with regard to a steward's books of receipts, without proof of his handwriting, if they come from the proper custody, Wynne v. Tyrwhitt, 4 B. & A. 376; private letters, Doe d. Thomas v. Beynon, 12 Ad. & E. 431; a will produced by the officer of the Ecclesiastical Court, Doe d. Howell v. Lloyd, Peake, Ev., App. 41; a bond, Chelsea Waterworks Co. v. Cowper, 1 Esp. 275; and other old writings, Fry v. Wood, 1 Selw. N. P. 13th ed. 495, n. Even in cases in which attestation is requisite, and it appears that the attesting witness is alive and able to attend, it is unnecessary to call him where the instrument is thirty years old. Doe d. Oldham v. Wolley, 8 B. & C. 22.

But where an old deed is offered in evidence without proof of execution, some account ought to be given of its custody; B. N. P. 255; or it should be shown that possession has accompanied it, at least where it purports to convey something which is the subject-matter of possession. Gilb. Ev. 97. See Custody of Ancient Writings, ante, pp. 102, 103. Whether the custody is suspicious is a question for the judge. Doe d. Shrewsbury, El. of v. Keeling, 11 Q. B. 884. It has, indeed, been held sufficient, on an appeal against a removal, for the respondent parish to produce a certificate thirty years old, without showing that it had been kept in the parish chest; R. v. Ryton, 5 T. R. 259; and see R. v. Netherthong, 2 M. & S. 337; but see on this point, Evans v. Rees, 10 Ad. & E. 151, and other cases cited ante, p. 103. It was formerly considered that if there were any rasure or interlineation in an old deed, it ought to be proved in a regular manner by the witness, if living, or by proof of his handwriting and that of the party, if dead, in order to obviate the presumption which otherwise arises against the instrument. B. N. P. 255. See the rule as to the alterations and interlineations in bills of exchange, Actions on Bills of Exchange-Defence-Alteration, post, p. 385. In documents of

remote antiquity it is evidently impossible to supply such proof; and, accordingly, in such documents defects of this kind are, in practice, treated only as matter of observation to the jury, unless they are of sufficient importance to warrant the judge in excluding them altogether. Accord. Roe d. Ld. Kimlestown v. Kemmis, 9 Cl. & Fin. 774; and Evans v. Rees, ante, p. 140. And the rule now is, that interlineations, &c., in a deed are presumed to have been made before execution. Doe d. Tatum v. Catomore, 16 Q. B. 745; 20 L. J., Q. B. 364. It is otherwise in the case of wills. S. C., 16 Q. B. 747; vide post, p. 143.

Where a party, producing a deed upon a notice, claims a beneficial interest under it, it is not necessary for the party calling for the deed to prove the execution of it; for in such a case the defendant, by claiming under it, accredits it as against him, though not to the extent of estopping him. Pearce v. Hooper, 3 Taunt. 60. Thus proof was unnecessary where assignees produced the assignment of the bankrupt's effects. Orr v. Morice, 3 B. & B. 139. So, in an action by a lessee against the assignee of the lease for breach of a covenant in the original lease, the plaintiff having proved a counterpart of the lease and the defendant having put in the original, it was held unnecessary for the plaintiff to prove the execution of it, though the defendant had assigned over the lease before action. Burnett v. Lynch, 5 B. & C. 589. So in an action against the vendor of an estate to recover a deposit on a contract for the purchase, if the defendant on notice produce the contract, the plaintiff need not prove its execution. Bradshaw v. Bennett, 1 M. & Rob. 143. And where, in ejectment, the attorney for the lessor of the plaintiff obtained from one of the defendants a subsisting lease of the premises to prevent its being set up by the defendants, it was held that this was a recognition of the lease as a valid instrument; and that, when produced in pursuance of notice from the defendants, it might be read by them without proof of execution, though the attorney had furnished them with the names of the attesting witnesses, and though the plaintiff's title was independent of the lease. Doe d. Tyndale v. Heming, 6 B. & C. 28. It is immaterial that the party calling for it denies its validity; as where the defendant produces an assignment of a bankrupt's goods which the plaintiff (trustee of the bankrupt) impugns as fraudulent. Carr v. Burdiss, 1 C. M. & R. 782. Where notice was given to defendant to produce a feoffment under which he was in possession of land, the plaintiff proved by secondary evidence (the feoffment not being produced) that it had livery indorsed, and was witnessed held, that it was unnecessary, as against defendant, to call the witness, or to prove livery. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. In an action against a sheriff for taking insufficient pledges in replevin, the replevin bond, produced by the defendant, is admissible in evidence against him, without proof of execution. Scott v. Waithman, 3 Stark. 169. So, where the sheriff has assigned it to the plaintiff. Barnes v. Lucas, Ry. & M. 264.

Where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548; Doe d. Wilkins v. Cleveland, Ms. of, 9 B. & C. 864. So, if the party producing it claim an interest in it, but an interest unconnected with the cause; as where the action is for commission for procuring an apprentice for defendant, and the instrument produced is the deed of apprenticeship; Rearden v. Minter, 5 M. & Gr. 204, 206, per

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And a party producing at the trial of a cause a deed which has been some months in his possession is not excused from proving the execution, merely because he received such deed from the adverse party who formerly claimed a beneficial interest in it. Vacher v. Cocks, 1 B. & Ad. 145.

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the principle of the cases is that the party who claims an estate or interest under the instrument in his possession impliedly affirms its due execution, the rule is inapplicable to instruments that merely testify contracts under which no permanent interest passed. Therefore, where defendant wished to show himself to be a partner with A., under whom plaintiff sued, it was held that a contract in the plaintiff's possession to do some works for the firm, produced on notice by the plaintiff, must be proved by the defendant. Collins v. Bayntun, 1 Q. B. 117; Rearden v. Minter, ante, p. 141.

It seems that when an executor showed payment of a bond under plene administravit, he must have proved the bond in the regular way, except, perhaps, in an action on a simple contract. B. N. P. 143. See post, Part III., Actions against Executors.

A deed may be given in evidence without proof of execution, if its execution or the handwriting of the witness be one of the admissions in the cause (ante, pp. 63, 73-75), or admitted on the pleadings, or if the party be estopped to dispute it, as by recital, &c. (ante, p. 76). But the estoppel is confined to the part recited; and if the party wishes to prove more, he must prove it in the usual way. Gillett v. Abbott, 7 Ad. & E. 783.

Deeds enrolled or registered.] Where a deed, to the efficacy of which enrolment is essential (as a bargain and sale under 27 Hen. 8, c. 16), is accordingly enrolled, proof of the enrolment by an examined copy will dispense with evidence of the execution by any of the parties to the original deed. Thurle v. Madison, Styles, 462; Smartle v. Williams, 1 Salk. 280. And this is also provided in the case of deeds of bargain and sale, enrolled and pleaded, by stat. 10 Ann. c. 28, s. 3. So where a deed, to which enrolment is not essential, is enrolled on the acknowledgment of one of the parties, it is evidence of execution against that party. B. N. P. 255, 256. But it should seem that, unless such enrolment be rendered evidence by force of an Act of Parliament, it will not dispense with proof by a subscribing witness (where a subscribing witness is necessary), or otherwise as the case may be. Gomersall v. Serle, 2 Y. & J. 5; Giles v. Smith, 1 C. M. & R. 470.

The enrolments in the chancery of crown grants and the enrolments in the duchy office of leases, &c., of the possessions of the Duchy of Cornwall (and ut semb. of the Duchy of Lancaster), are primary evidence of the grants, and may be proved by examined copies, or copies otherwise authenticated. See Rowe v. Brenton, 3 M. & Ry. 218, ante, p. 111. An enrolment of a lease in the Land Revenue Office was indeed rejected as evidence of the lease in Jenkins v. Biddulph, Ry. & M. 339; but this seems to have turned on the wording of an Act of Parliament. Several statutes have since facilitated the proof of deeds and grants of crown lands and those of the Royal Duchies; as 2 Will. 4, c. 1, s. 26, in respect of lands in the survey of the Office of Woods, &c., which makes the memorandum endorsed on the deed to be proof of the making of it and of the due enrolment, without proof of the officer's signature; so 11 & 12 Vict. c. 83, s. 6, as to the proof of enrolments in the Duchies of Lancaster and Cornwall.

The official indorsement of enrolment or registration on deeds which are by statute required to be enrolled or registered, is of itself primâ facie evidence of the enrolment or registration. Kinnersley v. Orpe, 1 Doug. 56; Doe d. Williams v. Lloyd, 1 M. & Gr. 671; Grindell v. Brendon, 6 C. B., N. S. 698; 28 L. J., C. P. 333; Waddington v. Roberts, L. R., 3 Q. B. 579. See Mason v. Wood, 1 C. P. D. 63, ante, p. 43. The date of enrolment indorsed by the clerk of enrolments is conclusive evidence of

the date. R. v. Hopper, 3 Price, 495. The memorial of a conveyance registered in a county register is presumed to be correct against those who claim through a person who registered the deed; Wollaston v. Hakewill, 3 M. & Gr. 297; but not against other persons; Hare v. Waring, 3 M. & W. 379; per Parke, B.

Proof of Wills of Personalty.

A will relating to personalty is scarcely ever used in evidence in a court of law, and, therefore, it is rarely necessary to prove it. The probate granted by the proper court is the proper evidence of such a will. See Proof of Probate, ante, pp. 117, 118. But for the purpose of construing a will, the court will look at the original will, as well as the probate copy. Turner v. Hellard, 30 Ch. D. 390, per Ld. Esher, M. R., and Baggallay, L. J.

Proof of Wills of Land.

Production of the Will.] At common law, in order to prove a devise of lands, the will itself must be produced, for, except under the circumstances mentioned hereafter (post, pp. 148, 149), probate of the will is not even secondary evidence; as the Spiritual Court had no power to authenticate a will quoad anything but personalty. Doe d. Ash v. Calvert, 2 Camp. 389; B. N. P. 246. But where the will is lost, the register or ledger-book of the Ecclesiastical Court, or an examined copy of it, has been admitted as secondary evidence. B. N. P. 246. It is presumed that in such case the will must be of personal as well as real estate, otherwise the court would have no jurisdiction to register the will. The same principle applies to the jurisdiction of the Probate Division. In re Bootle, L. R., 3 P. & M. 177. A lost will may be proved by a copy otherwise authenticated; Sly v. Sly, 2 P. D. 91; or by oral evidence; Brown v. Brown, 8 E. & B. 876; 27 L. J., Q. B. 173; see also 2 Camp. 390, n.; even though given by an interested witness; Sugden v. S. Leonards, Ld., 1 P. D. 154, C. A. It may also be proved by written or oral declarations of the testator made before or after the execution of his will. S. C. Effect has been given to a lost will so far as its contents were proved. S. C. See, however, the observations in Woodward v. Goulstone, 11 Ap. Ca. 469, D. P. An interlineation or alteration in a will is presumed to have been made after the execution of it; Cooper v. Bockett, 4 Moo. P. C. C. 419; Doe d. Tatum v. Cutomore, 16 Q. B. 745, 747; Doe d. Shallcross v. Palmer, Id. 47; 20 L. J., Q. B. 367; but in the case of the interlineation of mere words required to complete the sense of the will, if they are written apparently at the same time with the same ink, this presumption is not a necessary one. In re Cadge, L. R., 1 P. & M. 543. before execution are admissible to prove the then state of the will; vide The declarations of the testator made ante, p. 55.

Proof of Execution Statutes.] The following are the statutory provisions severally relating to the execution of wills before Jan. 1st, 1838, and on and since that date.

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By the Stat. of Wills (32 Hen. 8, c. 1), s. 1, a will of lands was required to be in writing. By the Stat. of Frauds (29 Car. 2, c. 3), s. 5, all devises and bequests of any lands or tenements, by the party so devising the same, or by some other person in his preshall be in writing and signed sence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or

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