this part of the instrument would be unnecessary and nugatory. Thus, in a very late case (1), on a similar question of settlement, where it appeared, that only one part of the indenture was executed, that the pauper and master were both dead at the time of the trial, and that an enquiry had been made of the pauper, (who said, that the indenture had been given up to him after the expiration of the apprenticeship, and that it had been burnt,) and also of the daughter and executrix of the master, (who said, she knew nothing about it,) under these circumstances the court of King's Bench were of opinion, that a sufficient inquiry had been made to render parol evidence of the contents admissible; and the distinction, taken between this case and that of the King and Castleton, was, that, in the former, there was evidence of a fact which made a further search necessary, but that here a fact appeared in evidence, which made a search nugatory. If two parts of a deed, or more, have been executed, the loss or destruction of all the parts should be proved, before secondary evidence of the contents can be received (2); and the original deed ought to be proved to have been duly executed (3), unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party, in which case, the execution may reasonably be presumed against him. So where an original note of hand is lost, a copy cannot be read in evidence, unless the note is proved to be genuine. (4) The loss of a deed, by time and accident, or by any other casualty, is a sufficient reason for dispensing with a profert in pleading, when otherwise a profert might be necessary (5); or it may be pleaded, that the deed is in the hands of the opposite party, or destroyed by him (6). But (1) R. v. West Riding of Yorkshire, Easter term, April 17. 1815. MS. (2) Bull. N. P. 254. R. v. Castle ton, 6 T. R. 236. (3) R. v Sir T. Culpepper, Skinner, 673. per Holt C. J. (4) Per Ld. Hardwicke C.J. Goodier v. Lake, I Atk. 446. (5) Read v. Brookman, 3 T. R. 151. Bolton v. Bp. of Carlisle, 2 H. Black. 259. (6) Totty v. Nesbitt, 3 T. R. 153. n. (c). if the plaintiff, instead of declaring upon the deed, as lost or destroyed, inadvertently pleads with a profert, and the defendant pleads non est factum, the plaintiff will not be allowed to prove the loss at the trial, and must be nonsuited (1). In such a case, the plaintiff should move to put off the trial, or may withdraw the record, and amend the pleadings, stating the circumstances to excuse the profert. (1) When a deed is produced in evidence, the next step is to Proof of prove it duly executed. In a few cases, however, proof of execution. execution will not be necessary; as, years old. First, If the deed is thirty years old, it may be admitted Exceptions. in evidence without any proof of its execution; and the 1. Deeds 30 same rule applies generally to deeds concerning lands, to bonds (2), receipts (3), and all ancient writings. Some account, however, says Mr. Justice Buller, ought to be given of the place, where the deed was found (4); and in another book it is said, that "ancient writings, which are proved to have been found among deeds of evidences of land, may be given in evidence, although the execution cannot be proved; for it is hard to prove ancient things, and the finding them in such a place is a presumption, that they were honestly and fairly obtained and preserved for use, and are free from suspicion of dishonesty. (5) This observation, on the necessity of shewing where the deed was found, seems to apply more particularly to those cases, where the character and authenticity of old writings depend in some degree on the nature of the place or custody in which they have been kept. This is the case with terriers, ecclesiastical surveys, court rolls, and other muni (1) Smith and others v. Woodward, 4 East, 585. (2) Governor of Chelsea Waterworks v. Cowper, 1 Esp. N. P. C. 275. (3) Fry v. Wood, 11 G. 2. K. B. 1 Selw. N. P. 4)2. (4) Bull. N. P. 255. (5) Vin. Ab. tit. Evidence, (A. b. 5.', cited 7 East, 291. And see Forbes, Administrator of Henchett, v. Wall, cited by Ld. Kenyon, 1 Esp. N. P. C. 278. ments ments of manors, which ought to be produced each from its proper repository; and if they have been regularly preserved, it will not be necessary, after a certain lapse of time, to prove them genuine. For the same reason, old grants to abbeys have been rejected as evidence of private rights, because the possession of them did not appear to be connected with any persons, who had an interest in the estate (1). But, in common cases, where the written instrument itself purports to belong to the party, who produces it in evidence, it will be admitted without proof of the execution, and without shewing where it has been kept, provided it is of sufficient age and in other respects admissible evidence against the opposite party. On a question of settlement, therefore, where the respondents produced a certificate, more than thirty years old, which had been granted to their parish by the appellant parish, the court of King's Bench held, that the mere production of it was sufficient, and that the respondents were not obliged to shew, that the certificate had been kept in the parish chest (2). It would be sufficient, if the certificate were to be produced by a rated inhabitant of the parish (3). So, in an action for a false return to a mandamus, a corporator may produce the muniments of the corporation. (4) If there is any blemish in the deed by rasure or interlineation, the deed ought to be proved though above thirty years old (5), and the blemish satisfactorily explained. In such a case, the jury would have to try, whether the rasure or interlineation was before or after the delivery of the deed; for, if the rasure was before that time, the deed is still valid and binding; it is only after the delivery, that a rasure or interlineation can affect a deed, and, even then, they are in some cases immaterial. Now, to ascertain the time of delivery, the first and best evidence, to be resorted (1) See ante, p. 317. (2) R. v. Ryton, 5 T. R. 259. (3) R. v. Netherthong, 2 Maule & Selw. 337; previous to the late act of parliament, which makes rated inhabi- to, to, is the testimony of a subscribing witness, if any can be produced; or, if there is no subscribing witness, other persons may be called, who were present when the deed was delivered; or, if no person was present, the time of delivery will be reckoned from the date of the deed; and the fact, of the rasure being after the delivery, may be proved either by a subscribing witness, or by any person, who saw the rasure made. The rule, that deeds of thirty years standing prove themselves, is so well established, that even if a subscribing witness were alive, and in a state to be produced, it has been thought unnecessary to call him for proving the execution. Lord Kenyon is reported to have said (1), that he remembered a case before Mr. Justice Yates, in which, a deed of that age being produced in evidence, it appeared that the subscribing witness was then actually in court, but he declared he would not break in upon a rule of evidence so well established, (by requiring the subscribing witness to be called,) and admitted the deed without further proof. But in the case of Rees v. Mansel (2), Mr. Baron Perrott held, that, although a deed may be read in evidence on account of its antiquity, yet, if on the other side it is shewn that one of the witnesses is alive, he must be produced, or the deed must be rejected; and he cited a case where a deed was produced in the King's Bench, and it appeared that Sir Joseph Jekyll was a subscribing witness, upon which the court said, they knew he was alive, and that if he did not come to prove it, the plaintiff must be nonsuited. It was then mentioned to have been ruled by Mr. Justice Yates, that, for the sake of practice, the witness should not be allowed to prove an old deed, even if he attended for that purpose; but Mr. B. Perrott retained his opinion; “ Än old deed (he said) is admitted only on a presumption, that the witnesses are dead, but when the contrary is made to (1) March v. Collnett, 2 Esp. N. P. (2) Selv. N. P. 492. C.665. appear, 2. Deeds enrolled. appear, they must be called." If, indeed, the rule is founded on the presumption of the attesting witness's death, then it seems to follow, that, where that 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 wit ness. Secondly, Deeds enrolled have been admitted without proof of execution (1). 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 (2). But where a deed needs no enrolment, there, though it be enrolled, the inspeximus of such enrolment is not evidence, because, since the officer has no authority to enrol them, such enrolment cannot make them public acts, and consequently cannot entitle the copy of them to be given in evidence; for then, if the (1) Com. Dig. tit. Evidence, (B. 2), citing Salk. 281. (2) Gilb. Ev. 86. 1 Keb. 117. 1 Salk. 280. deed |