* 352 [407) a presumption, that the witnesses are dead, but when the contrary is made to appear, they must be called." If, indeed, the rule is founded on the presumption of the attesting witness' death, then it seems to follow, that, where this presumption is contradicted by the fact of his being still alive, the execution of the deed ought to be regularly proved, as in ordinary cases. But if courts of law have adopted the rule, not on the presumption of a fact, (which would be for the consideration of the jury rather than of the court,) but as a general maxim of law, on account of the great difficulty of proving execution after an interval of many years, and have therefore fixed a limit, beyond which the proof of execution will not be required, there appears to be no inconsistency in acting generally upon this principle, though in a particular case the subscribing witness may be proved to be alive, at the same time leaving it to the opposite side to dispute the regularity of the execution by calling him or any other witness. Where the title-deeds of an estate are produced, in an action for the non-performance of an agreement of purchase, as proof of a good title in the plaintiff the vendor, it will not be necessary to prove their execution by calling the subscribing witnesses. This point was decided, in the case of Thomson v. Miles. (1) Lord Kenyon there said, he would never allow that the party should be called upon to prove the execution of all the deeds deducing a long title; that it was never mentioned in the abstract, nor expected in making out a title in any case of purchase, more particularly where possession has accompanied the deeds; and they were therefore admitted without proof of the execution. In a late case before Lord C. J. Mansfield, (2) where, in an action of assumpsit upon an agreement to purchase a leasehold house, it appeared that the plaintiff the vendor was (1) 1 Esp. N. P. C. 184. (2) Crosby v Percy, 1 Campb. 303. the third or fourth assignee of the term, and it was contended that he need only prove the execution of the last assignment, it was ruled otherwise; and he was compelled to prove the lease and all the mesne assignments. However, Lord Kenyon's decision was not adverted to: and as that is understood to coincide with the practice in these cases, it can scarcely be considered as overruled. (1) (a) ed. Secondly, Deeds enrolled have been admitted without 2. Deeds enrollproof of execution. (2) On this subject, Ch. B. Gilbert makes the following distinctions: "Where a deed needs enrolment," (as deeds of bargain and sale, by statute 27 Hen. VIII. c. 16.) "there the enrolment is the sign of the lawful execution of such deed, and the officer appointed to authenticate such deeds by enrolment, is also empowered to take care of the fairness and legality of such deeds, and therefore a copy of such enrolment must be sufficient; for when the law has appointed them to be made public acts, the copy of such public acts shall be a sufficient attestation. (3) But where a deed needs no (1) See Mr. Sugden's Treatise on the Law of Vendor and Purchaser, p. 195. (2) Com. Dig. tit. Evidence, (B. 2.) citing I Salk. 281. (3) Gilb. Ev. 86. Baikie v Chandless, 3 Campb. 21. Garrick v Williams, 3 Taunt. 544. Taylor v Jones, 1 Ld. Raym, 746, 1 Keb. 117. 1 Salk. 280. [4087 (a) It is a general principal that a party who sets up title must furnish the evidence necessary to support it. If the validity of a deed depends upon an act in pais, the party claiming under that deed is as much bound to prove the performance of that act, as he would be bound to prove any matter of record on which its validity might depend. In the case of lands sold for the non payment of taxes, the marshal's deed is not even prima facie evidence that the prerequisites re quired by law have been complied with, and the party claiming under it must show positively that they have been complied with. Williams et al. v Paylon's Lessee, 4 Wheaton 77. Christy v Minor, 4 Mumford 431. A sheriff's deed cannot be given in evidence without producing the judgment and execution under which the sale was made, these documents, being necessary to show that the sheriff had authority to sell. Doe d. Pattison et al. v Wright & Dill, 1 Peter's Rep. 64. Doe d. Bland v Smith, 1 Holt N. P. Rep. 589. A deed executed by administrators under an order of the orphans' court, cannot be read in evidence without producing the order of the court, 1 Peter's 64. 353 enrolment, there, though it be enrolled, the insp of such enrolment is not evidence, because, si officer has no authority to enrol them, such enr cannot make them public acts, and consequently entitle the copy of them to be given in evidence; then, if the *deed were doubtful, it were but to e and bring the copy or inspeximus in evidence, and by avoid producing a deed that was any way cious." (1) Mr. Justice Buller, after citing the rule from Baron Gilbert, (that deeds of bargain and sale, en and requiring enrolment, may be given in evi without proof of the execution,) observes, (2) that law may well be doubted, notwithstanding that deeds of bargain and sale enrolled have frequen trials at nisi prius been given in evidence without proved. In support of this practice," he adds, case of Smartle v. Williams (3) is much relied on that case is wrong reported, for it appears from th port in Levinz, (4) that the acknowledgment was b bargainor, and so is stated in Salkeld's manuscript sides, it appears from both the books, that it was o term that passed, and consequently it was not an e ment within the statute." Mr. Justice Buller then a case from Styles' Reports, (5) where Glyn, C. J. i ported to have said, that "if divers persons seal a d and but one of them acknowledge the deed, and the is thereupon enrolled, this is a good enrolment, and be given in evidence at a trial, as a deed enrolled." " it would be of very mischievous consequence," obser Mr. Justice Buller, "to say, therefore, that a deed, rolled upon the acknowledgment of a bare trus might be given in evidence against the real owne (1) Gilb. Ev. 86. I Keb. 117. (3) 1 Salk. 280. (4) 3 Lev. 387. S. C. (5) Thurle v Madison, Styl. 46 (a) Vide Yarborough v Beard, Tayl, 25. the land, without proving it executed by him. "However, that has been the general opinion, and it seems fortified in some degree by statute 10 Ann. c. 18. On the other hand, it seems as absurd to say, that a release which has been enrolled upon the acknowledgment of the releasor shall not be admitted in evidence against him, without being proved to be executed, because such release does not need enrolment; and in fact such deeds have often been admitted; and that was the case of Smartle v. Williams; the deed there did not need enrolment, yet being enrolled on the acknowledgment of the bargainor, it was read against him without being proved." In the case of Smartle v. Williams, an examined copy of the enrolment of a deed of bargain and sale, by which a term of years was assigned, was offered in evidence without any proof of the bargainor's sealing and delivery. It was objected, that the copy of the deed enrolled was not evidence, because the interest assigned, being only a term, passed immediately, and the enrolment afterwards is no more than an enrolment of an obligation: but the court overruled this objection, and held, that "the acknowledgment of the deed by the lessor before the master in Chancery is good evidence against himself, and against all who claim under him." (1) So, in the case of Lady Holcroft v. Smith, (2) a distinction was made between deeds of bargain and sale, (enrolled in pursuance of the statute of Henry VIII.) and other deeds enrolled, and it was held that a copy of a deed, enrolled for safe custody, would not be evidence otherwise than against the party, who sealed it, and all claiming under him. It does not appear from any of the authorities cited by the Chief Baron Gilbert, (excepting the case of Smartle v. Williams,) against what party the copy of the enrolment was offered in evidence. If the 1)ev 387. (2) 2 Freeman. 259. 1702. in Chan. [400] * 354 *355 enrolment had been on the acknowledgment of the bargainor, and offered as evidence against him, there cannot be a doubt of its being admissible. With regard to a copy of the enrolment of a deed of [1101 bargain and sale, indented and enrolled in pursuance of the statute of Henry VIII, it is enacted by statute 10 Ann. *c. 18. s. 3. (1) (" for supplying a failure in pleading or deriving title to lands, &c. conveyed by such deeds of bargain and sale, where the original indentures are wanting,) that, where in pleading any such indenture shall be pleaded with a profert, the party so pleading may shew forth and produce a copy of the enrolment; and such copy, examined with the enrolment, and signed by the proper officer having the custody of the enrolment, and proved upon oath to be a true copy, shall be of the same force and effect, as the indenture of bargain and sale would be, if produced." Before this statute, an enrolment of the deed could not have been pleaded; and though a deed had been exemplified under the great seal, yet it was necessary, at common law, to shew forth the deed itself under seal, and not the exemplification. (2) So, by the common law, a constat or inspeximus of the king's letters patent could not have been shewn forth in court, but the letters patent themselves but by statute 3 & 4 Ed. VI. c. 4. explained by stat. 13 Eliz. c. 6. "patentees, and persons claiming under them, may make title in pleading by shewing forth an exemplification of the enrolment of the letters patent as if the letters patent themselves were pleaded and shewn forth;" and now they are to be given in evidence. in the same manner as if they were pleaded. (3) The rule concerning copies of enrolments appears then to be, that a copy of the enrolment of a bargain (1) See also stat. 8 G. 2. c. 6. s. 22. (concerning deeds of bargain and sale of lands, in the North Riding of York shire.) (2) Co. Lit. 225. b. |