DECLARATION. stand and be informed, that, since the suing out of the original writ in this cause, and before this day, to wit, on, &c., at, &c., the said B. died, which the said C. D. doth not deny, but admits the same to be true; and thereupon the said A., by his attorney aforesaid, complains that, whereas, &c. The form where one of several defts. dies is the same as the last, mulatis mutandis. BEGINNING AND CONCLUSION OF A DECLARATION IN THE EXCHEQUER. In the Exchequer of Pleas. Middlesex (venue) to wit. J. N., a debtor to our sovereign lord the king, cometh before the barons of his majesty's Exchequer, on Term, 9 Geo. 4. [*421] this term, by sent here in court the same day, of a plea of trespass on the case, &c., for that, his attorney, and *complaineth by bill against J. S., prethe &c. (state cause of action, and conclude thus:) to the damage of the said plt. of £, whereby day of - - in he is the less able to satisfy our said lord the king the debts which he owes to his majesty at his said Exchequer; and therefore he brings his suit, &c. Pledges to prosecute, John Doe and Richard Roe. COMMENCEMENT AND CONCLUSION OF A DECLARATION IN THE COURTS OF GREAT SESSIONS In the Court of Great Sessions for G. H. was attached to answer A. B. of a plea of trespass on the case upon promises, and there are pledges to prosecute, to wit, John Doe and Richard Roe; and thereupon the said A. B., by declaration in the courts of Westminster; it is not necessary to state that the facts occurred withhis attorney, complains, for that whereas (stale the cause of action, as in in the jurisdiction of this court: see ante, 414; Wherefore the said A. B. saith, that he is injured, and hath sustained damage to the amount of £; and therefore he brings his suit, &c. Saund. Rep. 74. Conclude as follows :) In the Common Pleas at Lancaster. Lancaster to wit. C. D. was attached to answer A. B. of a plea of trespass on the case day of ―, In the Court of Pleas, held at Durham, the in the to wit. C. D. was attached to answer A. B. of a plea of trespass on the case upon promises; and thereupon the said A. B., by whereas, &c. (State the cause of action, as in declarations in the courts at Westminster; it is not necessary to state that the facts occurred within the jurisdiction of this court: ante, 414, 1 his attorney, complains, for that Saund. Rep. 74. Conclude as follows :) Wherefore the said A. B. saith, that he is injured, and hath sustained damage to the amount of £-; and therefore he brings his suit, &c. COMMENCEMENT AND CONCLUSION OF DECLARATION IN THE PALACE COURT. Palace Court to wit. A. B., by (as the plea is), for that, whereas, &c. (alleging every material fact to have happened within THE LIKE IN COUNTY COURT. In the County Court of the county of to wit. A. B., by Pledges, &c. on the case upon promises, for that whereas the said C. D., on, &c., at, &c., and within the his attorney, complains of C. D. of a plea of trespass jurisdiction of this court, was indebted, &c. (alleging every material fact, as well the consideration of the promise as the contract itself, to have taken place with the jurisdiction, ante, 414.) See other forms of commencements and conclusions of declarations, 2 Chit. Pl. 12 to 14. For such forms relative to the plt.'s or deft.'s character in which he is sued, see "Attorney," “Bankrupt,” “Husband and Wife,” “Partner,” “Executors.” PROOF OF-Production of, 422.-When Strict Proof of, necessary or not, ib.-Mode of Proving Execution, 423.-Signing, Sealing, and Delivery, when requisite, ib.-Identity, 424.-What Witness should prove, ib.-Enrolment of Deeds, ib.-Proof of Execution, where no Subscribing Witness, 425.-Proof of, by Subscribing Witness, ib.-Excuse for not Producing Subscribing Witness, 426. PROOF OF-Production of] In order to prove the execution of a deed, it must be produced, or the non-production be accounted for by proving that it has been lost or destroyed, or is in the possession of the opposite party, in which case it must also appear in evidence, that he has had notice to produce it; for the best evidence of a written instrument consists in its actual production, and secondary evidence of it cannot be admitted, until the impossibility of producing it has been shown. Where the deed has been pleaded with a profert, the production cannot be supplied by a proof of the party's inability to produce the deed, as the party has, by his averment of profert, precluded himself from that resource: Smith v. Woodward, 4 East, 583; 1 Esp. Rep. 337; 1 Saund. 9, a. See, further, as to when secondary evidence is admissible, post, "Secondary Evidence;" and see infra, as to the effect of production by the opposite party. After proof of notice, and other essentials to entitle the party to give secondary evidence, a counterpart of a deed may be admitted: R. v. Inhab. of Castleton, 6 T. R. 236. Where there is no counterpart, an examined copy; if no examined copy, parol evidence: B. N. P. 254. When strict Proof of Execution necessary or not.] When a party asserts the execution and existence of a deed in evidence, he must prove the same, and all the requisites attending the execution of it. In some cases, this strict proof of execution is unnecessary, as where the opposite party in a suit enters into an admission of the execution, ante, 38, or pays money into court on the count on which the deed is stated: post, "Payment into Court." A deed may be given in evidence under a rule of court, without proof of execution: B. N. P. 256; 1 Sid. 269. Where a party to a suit, in pursuance of a notice to which he is a party, and under which he claims a beneficial interest, produces the deed, it will not be incumbent upon the adversary, even though a stranger to VOL. I. 62 the instrument, to call the attesting witness, or otherwise to prove its execution, as in other cases: 3 Taunt. 60; 8 East, 548; 2 Camp. 94. It was formerly held, that the production of a deed by the adverse party, in compliance with a notice for that purpose, superseded the necessity of calling the subscribing witness, in order to prove its execution, R. v. Inhab. of Middlesex, 2 T. R. 41, 5 ib. 366; these cases, however, were denied in Gordon v. Secretan, 8 East, 548, Gow, C. 26. And, where the party producing the deed, does not claim an interest under it, the party calling for it must prove in the regular manner: ib. In an action against the sheriff, for taking insufficient pledges in replevin, the replevinbond produced in evidence by the deft. dispenses with proof by plt. of the execution: Scott v. Waithman, 3 Stark. 169. *When the party refuses to produce the instrument, it is to [*423] be presumed omnia rite acta; it will therefore be presumed that an agreement was stamped, unless the contrary appear: 1 Stark. 35. The recital of a deed, in another deed, is evidence against the party who executes the reciting deed, or against any person claiming under him, ante, 43, Ford v. Grey, 1 Salk. 285: thus, where a party claims by virtue of an assignment of a deed, it is sufficient to prove the assignment: Nash v. Turner, 1 Esp. Rep. 218. Where a deed is thirty years old it proves itself, and is admissible without evidence of its execution, or of the handwriting of the obligor: Comp. of Chelsea Water-Works v. Cowper, 1 Esp. Rep. 275. But, it is said (B. N. P. 255), some account ought to be given of its custody, as (Gilb. Ev. 97) it should be shown that possession has accompanied it; but it has been held sufficient to produce a certificate of settlement, thirty years old, without showing that it had been kept in the parish chest: R. v. Inhab. of Rigton, 5 T. R. 259. Even if it appear that the attesting witness is alive, and capable of being produced, it seems unnecessary to call him, where the deed is thirty years old: Marsh v. Colnett, 2 Esp. Rep. 665. If there is any erasure or interlineation in an old deed, giving an appearance of fraud, it ought to be proved in the regular manner by the subscribing witness; or, if he be dead, by proof of such death, his handwriting, and the handwriting of the party executing, B. N. P. 255. See, further, as to proof of execution of ancient writing, post, "Handwriting." Mode of Proving Execution.] The sealing and the delivery of the deed, which are essential to its validity as a deed, must be proved, which must be done by a third person, if there was no attesting witness, and by such attesting witness, if there was one. Sealing is essential to a deed, and must be proved; but it is immaterial with what seal it is sealed. One piece of wax will suffice for several obligors, Shep. Touch. 55; and it is sufficient if the obligor acknowledge any impression already made to be his seal: Com. D. Fait. Thus, where one of two defts., in the presence of the other, and by his authority, executed a bill of sale for them both, the two defts. being partners in the transaction, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, it was held, that no particular mode of delivery was necessary; and that it was sufficient if the party treated it as his own: Ball v. Dunsterville, 4 T. R. 315. Delivery.] This must be proved; no particular form or ceremony essential: it will be sufficient if a party testifies his intention in any manner, whether by action or by word, to deliver or put the deed into the posses. sion of the other, as by throwing it down upon the table for the other to take up: Com. D. Ev. A. 3. If the deed be made by a corporation, actual delivery is not requisite, and the affixing of the corporate seal, or any other used for the occasion, is tantamount to a delivery, Phil. Ev. 449; but, if the corporate body has given a letter of attorney to deliver, the deed is not theirs until delivered: Co. Lit. 36, a. If the deed be executed by virtue of a power of attorney from the obligor, the power of attorney must be produced: Johnson v. Mason, 1 Esp. Rep. 89. A valid delivery may also be effected by words, unaccompanied by an actual delivery, as where the deed lies on the table, and the obligor desires. the obligee to take it up, and says it is his deed: Co. Lit. 36, a. If once the obligor deliver it as his deed, with intent that it shall be so, it will take effect, and he cannot, by any subsequent words, explain or show his intent to be otherwise: Com. D. Fait. A. 3. A person executing a deed, by virtue of a power of attorney, for another, must do it in the name of the *principal, but no particular form of words is essen- [*424] tial: Wilks v. Back, 2 East, 142. Signing is not an essential part of a deed at common law; but it has been required, in some cases, by act of Parliament, and is often requisite for the due execution of powers. In such cases, therefore, signing is as necessary as sealing: 1 Phil. Ev. 448. It is not absolutely necessary the witness should see the party actually sign or seal; proof that he saw him deliver it signed or sealed will suffice: 1 Phil. Ev. 448. A subsequent request, by one of the parties, to sign the attestation, is sufficient proof of such party's execution of the deed: Peake, 146. Where a bond was executed by the deft., and attested by a witness in one room, and was then taken to an adjoining room, and, at the request of the deft.'s attorney, and in the deft.'s hearing, was attested by another witness, who knew the deft.'s handwriting, it was held, that the execution might be proved by the latter witness, and the whole be considered as one entire transaction: Park v. Mears, 2 B. & P. 17; and see Anon. cited Archb. Pl. & Ev. 378. An acknowledgment by an obligor to the attesting witness, that the instrument is his deed, is in all cases sufficient: Powell v. Blacket, 1 Esp. Rep. 97. It is not necessary for the witness to prove that certain blanks, which existed in the deed, were filled up at the time of the execution: England v. Roper, 1 Stark. 304. Identity.] Some evidence is necessary to connect the deft. with the bond, which the subscribing witness is often unable to furnish. 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 deft.) but could not identify him with the deft., the plt. was nonsuited: Parkins v. Hawkshaw, 2 Stark. 239; Middleton v. Sanford, 4 Camp. 34. Enrolment of Deeds.] It seems that the deeds enrolled may be admitted in evidence, without proof of execution. Thus, a deed of bar gain and sale, acknowledged by the bargainee and enrolled, by which a term for years was assigned, was given in evidence without any proof made of the bargainor's sealing and delivery thereof: Holt, C. J., and the rest of the court, held, that the acknowledgment of the party in a court of record, or before a master extraordinary in the country, is good evidence of its being sealed and delivered: Smarth v. Williams, 1 Salk. 280; 3 Lev. 387. Gilbert, C. B., draws a distinction between deeds which require and which do not require enrolment, and considers the rule applicable in the former, but not in the latter case: Gilb. Ev. 86. Buller, J., however, dissents from this doctrine, and says, that the case of Smarth v. Williams is wrongly reported; as it appears, from the report in Lev., that the acknowledgment was by the bargainor, and that it was only a term that passed, and, consequently, was not an enrolment within the stat.; and adds, "It is 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 that was the case in Smarth 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:" B. N. P. 256. In the case of Lady Holcroft v. Smith, 2 Freem. 259, a distinction was made between deeds of bargain and sale (enrolled in pursuance of the stat. of H. 8.) and other deeds enrolled; and it was held, that a copy of a deed, enrolled for safe custody, would not be evidence otherwise than as against the party who executed it, and all claiming under him; so, the endorsement by the proper officer, on a deed of bargain and sale, enrolled ac[425] cording to 27 H. 8, c. 16, is evidence of the enrolment, Kinnersley v. Orpe, 1 Doug. 56; and the date of enrolment, endorsed by the clerk of the enrolments, is conclusive evidence of the date: R. v. Hopper, 3 Price, 495. Proof of Execution where no Subscribing Witness.] In this case the party's handwriting and execution of the deed must be proved, as in other cases: supra, and post," Handwriting.' Proof of, by Subscribing Witness.] If there was a subscribing witness to the execution of the deed, he ought to be subpoenaed to prove it. The subscribing witness alone is competent to prove the execution, as he may be able to state the circumstances of the transaction, which may be material, and unknown to others; and his testimony cannot be dispensed with, though the deft. has admitted his execution of the deed, Abbott v. Plumbe, 2 Doug. 205, 2 East, 187, 7 T. R. 267, even in answer to a bill in Chancery, Call v. Dunning, 4 East, 53, 5 T. R. 366; and this rule applies, whether the deed be the foundation of the action or but collateral, Breton v. Cope, Pea. Rep. 30; or whether the question be between the parties to the deed or strangers: 4 East, 53. It is sufficient to call one attesting witness, though there are several, B. N. P. 264, 1 P. Wms. 471, unless a suspicion attaches to the execution of the deed, when it is more prudent to call them all: 4 Burr. 2224. Evidence of the handwriting of an attesting witness will not, however, be sufficient, to prove a deed; if there are two of them, and the absence of one be only accounted for, the other must be called: Cunliff |