this, according to common parlance and understanding, and so as to be a security to persons, who are bound to obey the powers given by it at their peril; and it is not to be construed according to what may be brought within its words by nice legal reasoning, applicable merely to deeds. In the case of Thaire v. Thaire, (1) where there was a submission to arbitration, "so that the award be delivered under their hands and seals," it was made a question, whether an award sealed but not signed was a good award; the point reserved being, whether the sealing, which was virtually a signing, was sufficient, or whether the words of the submission should be intended in common parlance an actual writing of their hands. The Judges of the Court of Common Pleas were at first divided in opinion on that point. It was finally decided, however, by the whole Court, that a virtual signing would not do, but that there ought to be an actual signing under their hands. So in the present case, where an act is to be under the hands and seals of the three, a mere virtual sealing by any of the three appears to us not sufficient; but it ought to be under the actual distinct seal of each, that is to say, under a distinct and several sealed impression adopted by each of the parties." With regard to the delivery of a deed, no particular form or ceremony is necessary: it will be sufficient, if at party testifies his intention in any manner, whether by action or by word, to deliver or put it into the possession of the other party; as, if a party throw the deed upon a table, with the intent that it may be taken by the other, who accordingly takes it; or, if a stranger deliver it with the assent of the party to the deed. (2) (a) If the deed (1) Palmer, 109. 112. (2) Com. Dig. tit. Evidence, (A.3.) Co. Lit. 36. a. [Note 223.] (a) Vide Verplanck v Sterry, 12 Johns. Rep. 536. Goodrich Walker, 1 Johns. Cas. 250. Delivery of a deed to a third person for the use of the grantee, and without his knowledge becomes a valid delivery on the subɛequent assent of 1418] * 362 14191 is made by a corporation, actual delivery is not requir ed; and fixing the common seal, that is, the corporate seal, or any other used for the occasion, (1) is tantamount to a delivery; but if the corporate body had given a letter of attorney to deliver, the deed is not theirs till delivery. (2) It has been before mentioned, that proof of delivery, without any proof of signing or sealing, will be sufficient evidence of execution; for the party by delivering a deed, purporting to be his own, adopts the seal and the signature. But under particular circumstances, less evidence has been admitted to prove the execution. Thus, in a case where it appeared that the defendant, a few minutes after having executed the deed, brought it. to the witness in an *adjoining room, and desired him to attest it; another attesting witness was still in the room, where the deed had been executed; and it was further proved, that the witness was acquainted with the defendant's hand-writing, and that the defendant knew of his being acquainted with it, and that the defendant had acknowledged the instrument; but there was no proof of the act of delivery, and no reason was shewn, why the other attesting witness could not be called to prove the delivery; in this case the Court of Common Pleas was of opinion, that the whole might be considered as one transaction, and that there was sufficient proof of the execution. (3) (a) (1) Perkins, c. 2. s 132. (2) Co. Lit. 36. a. [Note 222] 217. Powel v Blacket, 1 Esp. N. P. C. 96. Grellier v Neale, Peake N. P. C. 146. the grantee, which has relation back to the original time of delivery. Hatch v Hatch, 9 Mass. Rep. 307. Belden v Carter, 4 Day 66. Ruggles v Lawson et al. 13 Johns. Rep. 285. Possession by the grantee or his heirs, of an ancient deed is evidence of delivery. Mallory v Aspinwall, 2 Day 280. Vide Souverby v Arden et al. 1 Johns. Ch. Rep. 240. (a) The general presumption of law is, that the formal act of signing, sealing and delivering, is, the perfection and consummation of a deed, and it lays with If a deed, or other written instrument, is attested, but none of the witnesses are capable of being examined, the course then is to prove an attesting witness's hand-writing; and this will be a sufficient proof of the execution; as where the attesting witness is dead (a)-or blind (1)-or incompetent to give evidence, either from insanity, (2) or from infamy of character, (3) or from interest acquired after the execution of the deed (4)(b)-or where the subscribing witness is absent in a foreign courtry(5) (c) or out of the jurisdiction of the superior English courts, so as not to be amenable to their process, (6)(d) or where he cannot be (e) found after strict and dili the grantor to prove clearly that the appearances are not consistent with the truth, as that there was no delivery, and it was so understood at the time; if the deed was duly delivered in the first place, the subsequent possession of the deed by the grantor cannot affect the act of delivery. Delivery of a deed to a third person as agent or trustee is good. Souverby v Arden, 1 Johns. Ch. Rep. 240. The Trustees of the Methodist Church v Jaques, ib. 450. (a) S. P. Mott v Doughty, 1 Johns. Cas. 230. (b) S. P. Lesse of Hamilton v Marsden, 6 Binney 45. Hamilton v Williams, 1 Haym. 139. S. C. 2 Hayw. 101. Contra 2 Hayw. 329. It was held that the absence (c) S. P. Sluby v Champlin, 4 Johns. Rep. 461. of a subscribing witness was sufficiently accounted for, who had sailed for Spain, and had been driven back by stress of weather into an English port shortly before the trial, and expected to sail again immediately, but it was not known at the Ward v Wells, I Taunt. 461. time of the trial, whether he had sailed or not. (d) Vide Baker v Blount, 2 Haym. 404. (e) Vide Jones v Brinkley, 1 Hayn. 20. [420] gent enquiry.(1)† The hand-writing *of the attesting witness is evidence of every thing on the face of the instrument; the sealing and delivery will be presumed, (a) (1) Anon. case, 12 Mod. 607., by Holt C. J. 7 T. R. 266. Cunliffe v Sefton, 2 East, 183. Crosby v Percy, I Taunt. 365. Parker v Hoskins, 2 Wardel v Fermor, 2 In the case of Cunliffe v Sefton, (2 East, 183.) it was proved that diligent enquiry had been made after one of the attesting witnesses to a bond, at the residence of the obligor and obligee, without being able to obtain any intelligence of such a person; this was considered a sufficient ground for letting in proof of the hand writing of the other attesting witness, who had since become interested as administratrix to the obligee, and was a plaintiff on the record. In the case of Crosby v Percy, (1 Taunt. 365.) the Court of Common Pleas held, that proof of the hand writing of an attesting witness had been properly admitted, after proof that diligent enquiry had been made for him at his usual place of residence, where, in answer to the enquiry, information was received, as also from the father of the attesting witness, that he had absconded to avoid his creditors, and was not to be found. In the case of Wardel v Fermor, (2 Camph. 282.) evidence of the hand writing was admitted, on proof that, twelve months before, a commission of bankrupt had been sued out against the subscribing witness, who had not appeared at the time fixed for his surrender. Secondary evidence was admitted in the case of Parker v Hoskins, (2 Taunt. 223.) an enquiry having been made for the subscribing witness at the admiralty, whence it appeared by the last report, that he was serving on board of some ship, but in what ship it was not known. It is not possible, by any general rule, to ascertain precisely in what cases this proof of the subscribing witness' hand writing will be admitted. Each case must depend upon its own peculiar circumstances. But in all cases it ought to be satisfactorily proved, that a reasonable, honest, and diligent enquiry has been made, without any evasion, and without any design to overlook the witness: Vide Cook v Woodrow, 5 Cranch 13. Where the witnesses to a written contract were the sons of the defendant who executed it, and the plaintiff, the day before the circuit, inquired of the defendant for the witnesses in order to subpoena them, and was falsely told by the defendant that they were gone on a journey; this was held not to be a sufficient reason for admitting other testimony of the hand writing, the plaintiff not having used sufficient diligence to procure the witnesses. Mills & another v Twist, 8 Johns. Rep. 121. (a) Vide Milward v Temple, 1 Campb. 375., in which in an action of debt on bond, the attesting witness' hand writing being admitted, Ld. Ellenborough said, this might be taken as a presumptive admission of all he professed to attest, and would have been called to prove. and it will not be necessary to prove the hand-writing of the party (a) to the deed. (1)† But, in cases, where there is no subscribing witness on the deed, (b) or, where the subscribing witness denies having any knowledge of the execution, (which is the same thing as if there were no witness at all, (2)(c) or, where the name of a fictitious person is inserted, (3)-or, [421] where the attesting witness was interested at the time of the execution of the deed, and continnes so at the time of the trial; (4) (d) or, where the person has put his (1) Prince v Blackburn, 2 East, 250. Adam v Kerr, 1 Bos. & Pull. 360. Milward v Temple, 1 Campb. 375. Wallis ▾ Delancey, 7 T. R. 266. (c) Ld. Kenyou contra. (2) Grellier v Neale, Peake, N. P. C. 145., ruled by Ld. Kenyon. Ley v Ballard, 3 Esp. N. P. C. 173., by Ld. Kenyon. Fitzgerald v Elsee, 2 Campb. 635., by Lawrence J. Lemon v Dean, ib. 636. n. by Le Blanc J (in the case of a promissory note.) See also Blurton v Toon, Skin. 639. Abbot v In the case of a deed executed in the East Indies, and attested by a witness resident there, the stat. 26 G. 3. c. 57. s. 33. enacts, "that it shall be sufficient to prove the hand writing of the party to the deed, and of the attesting witness, and that the witness is resident in the East Indies."-When this statute was passed, the present rule respecting the proof of the execution of a deed had not been established. (a) Vide Sluby v Champlin, 4 Johns. Rep. 461. In the following cases it was held that after proving the hand writing of the witness, the hand writing of the party should be proved. Hopkins ▾ De Graffenreid, 2 Bay 187. Oliphant v Taggart, 1 Bay 255. Irving v Irving, 2 Hayw. 27. Et vide 3 Binney 192. (b) Vide Ingram v Hall, 1 Hayw. 193. (c) The attesting witness to a bond wrote the attestation without seeing the obligor execute, another person gave evidence that the obligor signed the bond but did not seal or deliver it; held that the signing of the bond, which purported to be sealed with the obligor's seal, was evidence to be left to the jury of the sealing and delivery. Talbot v Hodson, 7 Taunt. 251. The case of Phipps v Parker, 1 Campb. 412. is in the above case overruled. Vide also Leman v Deane, ? Campb. 635. Denn v Mason, in the Court of Errors of New-Jersey, ante 413. v. (a) Long v Ramsay, 1 S. & Ranles' Rep. 102. (d) So, where the witness at the time of attestation was the wife of the obliger Nelius v Brickell's Adm'rs Hayn, 19. |