and these transcripts purport to give an account of the license of appropriation of the parish, and likewise an account of the several matters of endowment. The original endowment not being found in the places, where search had been made for it as its natural places of deposit, the Court held, that the chartulary having been found in the custody of the Marquis of Bath, (and which must, therefore, be considered as having come from the custody of the rector, for the abbot was formerly the rector,) was admissible evidence. (1) The plaintiff appealed from this judgment to the House of Lords, who affirmed the judgment of the Court of Exchequer. Lord Redesdale, in giving his opinion on that occasion, stated, (2) that the original instruments, if they could have been produced, would have stood on the same ground as the taxation of Pope Nicholas, inquisitions on the writ of ad quod damnum, and a variety of similar evidence, from which the jury may draw their inference. The only question then is, whether the entries in this book are evidence of these two instruments. If the originals could be produced, these entries could not be evidence. But search has been made, and the originals. cannot be found; and if we shut our eyes to that sort of inferior evidence in cases where no other can be had, we shall constantly do injustice. The best evidence is often lost through carelessness, the injuries of time, and various other circumstances; and secondary evidence is then admitted to raise presumption or inference, where no direct evidence can be had. This then is the next best evidence; and perhaps evidence still more inferior might have been admitted, if this could not have been produced. This however appears to be the best after the originals; for what is it? These two instruments seem to have been copied by a person employed for the purpose, probably one of the monks, and deposited among the muniments of the abbey, because it was important (1) Wood B. differed from the rest of (2) 4 Dow, 834. 2 Price, 399. the Court on this point. [483] * 349 [40-47 Proof of exe cution. Exceptions. 1. for the interests of the abbey that the instruments should be preserved; and for the same reason it might be presumed, that they were faithful copies; at least there appeared to have existed no motive to make them otherwise, and they were found in a situation where they were likely to be kept. 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; (1) (a) or it may be pleaded, that the deed is in the hands of the opposite party, or destroyed by him. (2) But 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. (3) 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. (3) But it would be too late to make such a motion at nisi prius. (4) When a deed is produced in evidence, the next step is to prove it duly executed. In a few cases, however, proof of execution will not be necessary; as, First, If the deed is thirty years old, it may be admit Deeds 30 years ted in evidence without any proof of its execution; and the same rule applies generally to deeds concerning mid. (1) Read Brookman, 3 T. R. 151: Bolton v Bp. of Carlisle, H. Black, 259. (2) Totty v Nesbitt, 3 T. R. 153. n. (3) Smith and others v Woodward, East, 585. (4) Paine v Bustin, 1 Stark ie, 74 (c) (a) Vide Cutts v United States, Rep. C. C. U. 8. First Circt. 60 lands, (a) to bonds, (1) receipts, (2) and all ancient writings. Some account, however, says Mr. Justice Bul ler, ought to be given of the place where the deed was found; (3) 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 of them in such a place is a presumption, that they were honestly and fairly obtained and preserved for use, and are free from suspi cion of dishonesty." (4) 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 muniments *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, (1) Governor of Chelsea Waterworks Cowper, I Esp. N. P. C. 275. (2) Fry v Wood, I Selw. N. P. 492. Manby v Curtis, 1 Price, 232. Bertie ✓ Beaumont, 2 Price, 308. Bullen v Michel, 2 Price, 399, 4 Dow. 297. (3) Bull. N. P. 255. (4) Vin. Ab. tit. Evidence, (A. b. 5.) cited 7 East, 291. Forbes v Wale, i Black, 532, cited by Lord Kenyon, Esp. N. P. C. 278. * 350 (2) That is, provided the possesion has been according to the provisions of the deed. Bull. N. P. 255, 256. Jackson d. Burhans v Blanshan, 3 Johns. Rep. 292. Roberts v Stanton, 2 Mun. 129. Thompson v Bullock, 1 Bay 364. Stockbridge v West Stockbridge, 14 Mass. 237. In Thomas' Lessee v Hor locker, a deed bearing date 63 years ago, was admitted in evidence without proof of the execu tion, although possession had not attended it. I Dall. 14. A power of attorney contained in an ancient deed, and necessary to give it full effect, will equally be presumed to have been duly executed. Doe d. Clinton & others v Phelps, 9 Johns. Rep. 169. Doe d. Clinton and others v Cempbell, 10 Johns. Rep. 475. ୮ [400] 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, (a) 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. (b) Now, to ascertain the time of delivery, (1) See ante, p. 401. Earl v Lewis, 4 Esp. N. P. C. 1. Jones v Waller, 3 Gwill. 847. Bertie v Beaumont, 2 Price, 307. Bull. v Michel, 2 Price 399. 4 Dow. 324. (2) R. v Ryton, 5 T. R. 259. (3) R. v Netertbong, 2 Maule & Selw. 337.; this was before the late act of parliameat, which makes rated inhabitants competent in such a case. (4) 2 Maule & Selw, 338. (5) Gilb, Ev. 89. Bull. N. P. 253. (a) Vide Roberts v Stanton, 2 Mun. 129. (b) In case of an erasure in a deed or settled account, the presumption is, that the erasure was made after the execution thereof. Provost v Gratz, 1 Peter's the first and best evidence to be resorted to is the tes timony 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 deliv. ered; 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 other person, who saw the rasure made. The rule, that deeds of thirty years' standing prove themselves, is so well established, that even if a subscri bing 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 the Judge declared he would not break in upon a rule of evidence so well established, (by requir ing the subscribing witness to be called,) and admitted the deed without further proof. But in the ease of Rees. v. Mansell, (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: "An old deed (he said) is admitted only on (1) March v Collnett, 2 Esp. N, P. (2) Selw. N. P. 492, |