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deed were doubtful, it were but to enrol it, and bring the copy or inspeximus in evidence, and thereby avoid producing a deed that was any way suspicious." (i)

Mr. Justice Buller, after citing the rule from Chief Baron Gilbert, (that deeds of bargain and sale, enrolled and requiring enrolment, may be given in evidence without proof of the execution,) observes (2), that " the law "mny well be doubted, notwithstanding that such deeds "of bargain and sale enrolled have frequently in trials at "nisi prius been given in evidence without being proved. "In support of this practice," he adds, " the case of "Smartle v. Williams(3) is much relied on; but that "case is wrong reported, for it appears from the report in "Levinz (4), that the acknowledgment was by the bar"gainor, and so is stated in Salkeld's manuscript; be"sides it appears from both the books, that it was only a "term that passed, end consequently it was not an enrol"ment within the statute." Mr. Justice Buller then cites a case from Styles' Reports (5), where Glyn C. J. is reported to have said, that «« if divers persons seal a deed, and but one of them acknowledge the deed, and the deed is thereupon enrolled, this is a good enrolment, and may be given in evidence at a trial, as a deed enrolled." "But "it would be of very mischievous consequence," observes Mr. Just. Buller "to say, therefore, that a deed, enrolled "upon the acknowledgment of a bare trustee, might be "given in evidence against the real owner of the land, "without proving it executed by him. However, that "has been the general opinion, and it seems fortified in

some degree by statute 1 o Ann. c. 1S. On the other "band, 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

(1) Gilb. Ev.86. l Keb. 117. (4) 3^ 387. S.C

(2) Bull.N. P. 156. {}) Thurle v. Madison, StyL 461,

(3) I Salt 280.

A a « being "being proved to be executed, because such release "does not need enrolment; and in fact such deeds ha\ e "often been admitted; and that was the case of Smavtle M v. Williams; the deed there did not need enrolment, 44 yet being enrolled on the acknowledgment of the "bargainor, it was read against him without being « proved," 3. Recital in Thirdly, the recital of a deed in another deed is evidence *itfi. against the party, who executed the reciting deed, or

In the case qf 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 terra, 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 wa* 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 enrollment was offered in evidence.. If the 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 bargain and sale, indented and enrolled in pursuance of the statute of Henry VIII., it is enacted by statute 10 Ann.

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c. 18. 3.3.(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 and sale of freehold in lands, &c. is as good the original itself (4); but that a copy of the enrolment is not evidence of a bargain and sale of a chattel interest, or of the contents of any other deed enrolled for safe custody, except as against the party acknowledging the deed; and that against such party, and against all claiming under him, a copy of the enrolment of any deed is admissible in evidence.

(1) See also stat. 8 G. a. c. 6. s.itz. (a) Co. Lit. aa.f.b. (concerning deeds of bargain a,nd sale of (3) Olive v.Gwyn, Hardr. 119. lands, in the North Riding of York- (4) See i4Eut, 23L and Hobhoute

•hire). v. Hamilton, 1 Schoal. & Lefr. 207.

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against any person claiming under him; and it will not be necessary, in such a case, to prove the execution of the recited deed; but proof of the execution of that, which recites the other, will be sufficient; for, the party, and those claiming under him, are estopped by the recital (1). Thus, the recital of a lease in a deed of release is good evidence of such lease against the releasor, and those who claim under him (2). So where a party by his deed covenanted to lay out a sum of money in an annuity, and recited in the deed, that he had given a bond for the payment of the money, the recital was held to be sufficient evidence of the bond; for it was a confession by the obligcr himself, and stronger than a verbal confession, being undir his hand and seal (3). But a recital cannot operate as an estoppel against third persons who arc neither parties nor privies to the reciting deed, and will not be evidence of the contents of the recited deed (4). If the recital can be proved a correct copy, it is scarcely necessary to observe, that it will be admissible like any other examined copy, where secondary evidence of a deed can be admitted.

4. Deed Lastly, a deed may be given in evidence, under a rule of ruUofcouit. court, without proof of execution; for the consent is conclusive, and the jury are to try only such facts as are in issue between the parties. (5)

Proof of The cases above stated have been mentioned as exceptions; for the general rule is, that a deed cannot be given in evidence without proof of its execution. The execution of every instrument, that is attested, whether under seal or not, ought to be proved by a subscribing witness, if he can be produced, and is capable of being examined. The sub

(1) Com. Dig. tit. Evidence, (B. 5), King. See «Iso Shelley v. Wright,

FitigeraM v. Eustace, Gilb. Ev. 87. WiUes.u. and Com. Dig. tit. Estoppel,

(1) Ford v. Grty, 1 Salic 285. (A.1).

(3) Marchioness of Annandib v. (4) iSaIk.285.

Harris, 2 P. Wms. 431. per l.d Chan, (5) 1 Siderf. 269. Cilb.Er.91.

scribing witness alone is competent to prove the execution, because he may bo able to state the time of the execution and some circumstances of the transaction, which may be material and unknown to other persons. On an indictment therefore against an apprentice for enlisting himself in the army, all the judges held, that the indenture of apprenticeship could not be proved by the master, but that it wa9 necessary to call one of the subscribing witnesses. (i)

This rule is so strictly observed, that an acknowledgment of the obligor himself admitting that he executed a bond (2), and even an admission by the defendant in an answer to a bill filed against him for a discovery (3), will not dispense with the testimony of the subscribing witness; for though the party may acknowledge the bond, yet he may not know every circumstance attending the execution; "a fact may be known to the subscribing witness, not within the knowledge or recollection of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction (4)." The rule is precisely the same, whether the acknowledgment is offered as evidence against the party himself who made it (5), or against a third person (6); or, whether the deed is an existing instrument, or cancelled (7); or whether it is the foundation of the action, or comes in collaterally as part of the evidence in the cause (8). And this rule applies equally to all written instruments, which are attested. If, for example, an attested notice to quit has been given to the defendant, which it becomes necessary to prove in an action of ejectment, the execution must be proved by the attesting witness; and the circumstance, that the defendant read the notice and made no objection to it, cannot vary the case(o).

(1) R. v.Jones, East, Pl . Cr. tlx. (1) 4 East,S3

1 Leich. Or. C. 208. S. C (6) 1 Doug. 216.

(2) Abbot 1. Plumbe, 1 Dougl. 216. (7) Breton v. Cope, Peake N. P. C. citeit by I jwrenee i. 7 T. R. 267., and 30.

aEatt, 117. (8) Manners q t. v. Postan, 4 Esp,

(3) Call r.Dunning,4East, 53. S« N, P. C. 239.

Bowlet and another, Assignees of (9) Doe clem. Syltes v, Dmuford,

Jones, *. Longworthy, 5 T. R. 366. a Maule k Sel«\ 62,

(4) Pes Le Blanc J. 4 East,53.

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