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by a letter sent with the instrument, it is for the court to construe its effect; aliter if proved by oral evidence of extrinsic facts. Furness v. Meek, 27 L. J., Ex. 34.

The defence that the alleged deed was delivered as an escrow only, on a condition which has not been performed, was formerly raised by the plea of non est factum; Millership v. Brookes, 5 H. & N. 797; 29 L. J., Ex. 369; but it would now require to be specially pleaded. See Rules 1883, O. xix. r. 15, ante, p. 72.

Proof of attested Deed by secondary Evidence.] It has been sometimes contended that, if the original document has been attested, the attesting witnesses must be called. But where the plaintiff declared on a deed which he averred to be in the possession of the defendant, who pleaded non est factum, and at the trial the deed was proved to be in the hands of the defendant, who had been served with notice to produce: it was held, that on the non-production of the deed, the plaintiff might give oral evidence of the contents without calling the subscribing witness, although his name was known to the plaintiff, and he was actually in court. Cooke v. Tanswell, 8 Taunt. 450. So in debt by landlord for double value; plea "no demand;" the plaintiff, having given notice to produce, offered to prove the original demand by a copy in which an attestation had been also copied, and to show that the original was signed by him : held, that the production of the attesting witness (though known to the plaintiff) was unnecessary. Poole v. Warren, 8 Ad. & E. 583. So where notice was given to produce a deed in the defendant's possession, and the defendant at the trial refused to do so, the plaintiff was allowed to prove it by a copy without calling any attesting witness; and it was held that the defendant could not put the plaintiff to a strict proof by afterwards producing the attested original. Jackson v. Allen, 3 Stark. 74; Edmonds v. Challis, 7 C. B. 413. Where the plaintiff declared on a lost deed, and a witness stated that there were subscribing witnesses, but he did not know their names, it was ruled by Lord Kenyon, that the plaintiff might recover without calling them. Keeling v. Ball, Peake Ev. App. 82. But he said that "had it appeared who they were, the plaintiff must certainly have called them." If in such a case the witnesses are dead, and the execution by the party to the instrument is proved, it is questionable whether proof of the handwriting of the witnesses is in any case necessary; at all events, if the attesting witness can be identified with a deceased person, this will dispense with further proof of his handwriting; for the only object of such last-mentioned proof is to establish his identity. R. v. S. Giles's, Camberwell, 1 E. & B. 642; 22 L. J., M. C. 54.

Proof and Comparison of Handwriting.] The result of the various cases on this head is thus stated by Mr. Justice Patteson in Doe d. Mudd v. Suckermore, 5 Ad. & E. 730, 731, where references to all the authorities will be found. "That knowledge" [i. e. of handwriting] "may have been acquired either by seeing the party write, in which case it will be stronger or weaker according to the number of times and the periods and other circumstances under which the witness has seen the party write, but it will be sufficient knowledge to admit the evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing his surname; or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the handwriting of the party, and having afterwards communicated personally with the party upon the contents of those letters or documents,

Proof and Comparison of Handwriting.

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or having otherwise acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate, or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and the witness, which in the ordinary course of the transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party; evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him."

To prove the handwriting of a member of Parliament, the opinion of a clerk employed to inspect franks, who never had occasion to verify his handwriting, was held insufficient. Batchelor v. Honeywood, 2 Esp. 714; Cary v. Pitt, Peake Ev., App. 84. And where an attorney acted on a written retainer, purporting to be signed by A., B., and C., being acquainted with the handwriting of A. and B. only, his testimony to that effect is insufficient to prove the signature of C. Drew v. Prior, 5 M. & Gr. 264. A witness cannot be permitted to give his opinion of the handwriting from extrinsic circumstances, such as his knowledge of the party's character and habits. Da Costa v. Pym, Peake Ev. App. 85.

In the case of ancient documents, where it is impossible for any witness to swear that he has seen the party write, it is sufficient if the witness has acquired his knowledge of the handwriting by the inspection of other ancient writings bearing the same signature, and preserved as authentic documents. B. N. P. 236; Taylor v. Cook, 8 Price, 652; and see other cases cited, Doe d. Mudd v. Suckermore, ante, p. 130; also Fitzwalter Peerage case, 10 Cl. & Fin. 193; Lindsay Peerage, 2 H. L. C. 557. Ancient writings (as a receiver's account 100 years old) may be laid before a witness at the trial for his inspection; and upon his judgment of their character, so formed, his belief as to the handwriting of the document in question may be inquired into. Doe d. Tilman v. Tarver, Ry. & M. 143; and see Roe d. Brune v. Rawlings, 7 East, 282. A copy of a parish register purporting to be signed by the curate 80 years ago may be received with no other proof of handwriting than the evidence of the present parish clerk, who speaks from his having seen the same handwriting attached to other entries in the register. Doe d. Jenkins v. Davies, 10 Q. B. 314. In these cases the question often becomes one of skill; the character of the writing varying with the age, and the discrimination of it being assisted by antiquarian study. Per Coleridge, J., Doe d. Mudd v. Suckermore, 5 Ad. & E. 718.

It has been a question how far, and under what circumstances, handwriting in modern instruments can be proved or disproved by the testimony of a witness, founded on the mere comparison of different signatures. In the case of Doe d. Mudd v. Suckermore, ante, p. 130, the K. B. judges were equally divided on the question whether, after a witness had sworn to the genuineness of his signature, another witness (a bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely founded on a comparison pending the trial with other signatures admitted to be those of the witness. It has also been doubted whether a person practised in the examination of handwriting can be called to state his opinion whether a writing is in a feigned or a genuine hand. Gurney v. Langlands, 5 B. & A. 330; Doe d. Mudd v. Suckermore, 5 Ad. & E. 751. It has, however, been held, that under certain circumstances the court and jury may be permitted to institute a comparison between documents for the purpose of verifying handwriting when a witness called expressly for that purpose would be rejected. Thus in Griffith v. Williams, 1 C. & J. 47, it was held that the rule as to the comparison of handwriting does not apply to the court or jury, who may compare two documents when

they are both properly in evidence. But the documents with which the handwriting is compared must be such as are in evidence for other purposes in the cause, and not put in or selected by the party merely for comparison. Doe d. Perry v. Newton, 5 Ad. & E. 514, 534; Griffits v. Ivery, 11 Ad. & E. 322. To put such selected documents into the hands of the witness, merely for the purpose of shaking his credit by subsequent independent evidence contradicting his testimony as to those documents, would tend to raise collateral issues. Hughes v. Rogers, 8 M. & W. 123. This course has, however, been held admissible where the object was to show that the plaintiff was the author of an anonymous letter, by putting in evidence other letters in which he had misspelt defendant's name in the same way as in the anonymous letter. Brookes v. Tichborne, 5 Exch. 929.

Some of the questions discussed above are now disposed of by the C. L. P. Act, 1854, s. 27, which provides, that "Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.'

This section allows documents proved to be genuine but not relevant to the issue, to be put in for the purpose of comparison. Birch v. Ridgway, 1 F. & F. 270; Cresswell v. Jackson, 2 F. & F. 24. For this purpose the disputed writing must be produced in court; and the section does not therefore apply to documents which are not produced, and of which it is sought to give secondary evidence. Arbon v. Fussell, 3 F. & F. 152, cor. Wilde, B. Where the question is as to the handwriting of a witness, and the witness in cross-examination was induced to write on a piece of paper, this writing may be used for comparison under the section. Cobbett v. Kilminster, 4 F. & F. 490. It may, of course, be a question how far writing so obtained is a fair test of the ordinary handwriting of the witness. If the genuineness of the document sought to be put in is disputed, a collateral question is raised which must first be decided; Cooper v. Dawson, 1 F. & F. 550; like all other collateral issues, by the judge. Bartlett v. Smith, 11 M. & W. 483; Boyle v. Wiseman, 24 L. J., Ex. 284.

Proof of Execution, when dispensed with.] When a deed is 30 years old, it proves itself, and no evidence of execution is necessary. B. N. P. 255. So with regard to a steward's books of receipts, without proof of his handwriting, if they come from the proper custody, Wynne v. Tyrwhitt, 4 B. & A. 376; private letters, Doe d. Thomas v. Beynon, 12 Ad. & E. 431; a will produced by the officer of the Ecclesiastical Court, Doe d. Howell v. Lloyd, Peake Ev., App. 41; a bond, Chelsea Waterworks Co. v. Cowper, 1 Esp. 275; and other old writings, Fry v. Wood, 1 Selw. N. P., 13th ed. 495, n. Even in cases in which attestation is requisite, and it appears that the attesting witness is alive and able to attend, it is unnecessary to call him where the instrument is 30 years old. Doe d. Oldham v. Wolley 8 B. & C. 22.

But where an old deed is offered in evidence without proof of execution, some account ought to he given of its custody; B. N. P. 255; or it should be shown that possession has accompanied it, at least where it purports to convey something which is the subject-matter of possession. Gilb. Ev. 97. See Custody of Antient Writings, ante, pp. 97, 98. Whether the custody is suspicious is a question for the judge. Doe d. Shrewsbury, El. of, v. Keeling, 11 Q. B. 884. It has, indeed, been held sufficient, on an appeal against a removal, for the respondent parish to produce a certificate 30 years old, without showing that it had been kept in the parish chest; R. v.

Proof of Execution, when dispensed with.

133 Ryton, 5 T. R. 259; and see R. v. Netherthong, 2 M. & S. 337; but see on this point, Evans v. Rees, 10 Ad. & E. 151, and other cases cited, ante, pp. 97, 98. It was formerly considered that if there was any rasure or interlineation in an old deed, it ought to be proved in a regular manner by the witness, if living, or by proof of his handwriting and that of the party, if dead, in order to obviate the presumption which otherwise arises against the instrument. B. N. P. 255. See the rule as to the alterations and interlineations in bills of exchange, post, Actions on Bills of Exchange-Defence -Alteration. In documents of remote antiquity it is evidently impossible to supply such proof; and, accordingly, in such documents defects of this kind are, in practice, treated only as matter of observation to the jury, unless they are of sufficient importance to warrant the judge in excluding them altogether. Accord. Roe d. Ld. Kimlestown v. Kemmis, 9 Cl. & Fin. 774; and Evans v. Rees, supra. And the rule now is, that interlineations, &c., in a deed are presumed to have been made before execution. Doe d. Tatum v. Catomore, 16 Q. B. 745; 20 L. J., Q. B. 364. It is otherwise in the case of wills. S. C. 16 Q. B. 747; vide post, p. 135.

Where a party, producing a deed upon a notice, claims a beneficial interest under it, it is not necessary for the party calling for the deed to prove the execution of it; for in such a case the defendant, by claiming under it, accredits it as against him, though not to the extent of estopping him. Pearce v. Hooper, 3 Taunt. 60. Thus proof was unnecessary where assignees produced the assignment of the bankrupt's effects. Orr v. Morice, 3 B. & B. 139. So, in an action by a lessee against the assignee of the lease for breach of a covenant in the original lease, the plaintiff having proved a counterpart of the lease and the defendant having put in the original, it was held unnecessary for the plaintiff to prove the execution of it, though the defendant had assigned over the lease before action. Burnett v. Lynch, 5 B. & C. 589. So in an action against the vendor of an estate to recover a deposit on a contract for the purchase, if the defendant on notice produce the contract, the plaintiff need not prove its execution. Bradshaw v. Bennett, 1 M. & Rob. 143. And where, in ejectment, the attorney for the lessor of the plaintiff obtained from one of the defendants a subsisting lease of the premises to prevent its being set up by the defendants, it was held, that this was a recognition of the lease as a valid instrument; and that, when produced in pursuance of notice from the defendants, it might be read by them without proof of execution, though the attorney had furnished them with the names of the attesting witnesses, and though the plaintiff's title was independent of the lease. Doe d. Tyndale v. Heming, 6 B. & C. 28. It is immaterial that the party calling for it denies its validity; as where the defendant produces an assignment of a bankrupt's goods which the plaintiff (trustee of the bankrupt) impugns as fraudulent. Carr v Burdiss, 1 C. M. & R. 782. Where notice was given to defendant to produce a feoffment under which he was in possession of land, the plaintiff proved by secondary evidence (the feoffment not being produced), that it had livery indorsed, and was witnessed held, that it was unnecessary, as against defendant, to call the witness, or to prove livery. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. In an action against a sheriff for taking insufficient pledges in replevin, the replevin bond, produced by the defendant, is admissible in evidence against him, without proof of execution. Scott v. Waithman, 3 Stark. 169. So, where the sheriff has assigned it to the plaintiff. Barnes v. Lucas, Ry. & M. 264.

Where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548. Doe d. Vilkins v. Cleveland, Ms. of, 9 B. & C. 864.

So, if the party producing it claim an interest in it, but an interest unconnected with the cause; as where the action is for commission for procuring an apprentice for defendant, and the instrument produced is the deed of apprenticeship; Rearden v. Minter, 5 M. & Gr. 204, 206, per cur. And a party producing at the trial of a cause a deed which has been some months in his possession is not excused from proving the execution, merely because he received such deed from the adverse party who formerly claimed a beneficial interest in it. Vacher v. Cocks, 1 B. & Ad. 145. As the principle of the cases is, that the party, who claims an estate or interest under the instrument in his possession impliedly affirms its due execution, the rule is inapplicable to instruments that merely testify contracts under which no permanent interest passed. Therefore, where defendant wished to show himself to be a partner with A., under whom plaintiff sued, it was held, that a contract in the plaintiff's possession to do some works for the firm, produced on notice by the plaintiff, must be proved by the defendant. Collins v. Bayntun, 1 Q. B. 117; Rearden v. Minter, supra.

It seems that when an executor showed payment of a bond under plene administravit, he must have proved the bond in the regular way, except, perhaps, in an action on a simple contract. B. N. P. 143. See post, Part III., Actions against Executors.

A deed may be given in evidence without proof of execution, if its execution or the handwriting of the witness be one of the admissions in the cause (ante, pp. 60, 70, 71), or admitted on the pleadings, or if the party be estopped to dispute it, as by recital, &c. (ante, p. 73). But the estoppel is confined to the part recited; and if the party wishes to prove more, he must prove it in the usual way. Gillett v. Abbott, 7 Ad. & E. 783.

Deeds enrolled or registered.] Where a deed, to the efficacy of which enrolment is essential (as a bargain and sale under 27 Hen. 8, c. 16), is accordingly enrolled, proof of the enrolment by an examined copy will dispense with evidence of the execution by any of the parties to the original deed. Thurle v. Madison, Styles, 462; Smartle v. Williams, 1 Salk. 280. And this is also provided in the case of deeds of bargain and sale, enrolled and pleaded, by stat. 10 Ann. c. 28, s. 3. So where a deed, to which enrolment is not essential, is enrolled on the acknowledment of one of the parties, it is evidence of execution against that party. B. N. P. 255, 256. But it should seem that, unless such enrolment be rendered evidence by force of an Act of Parliament, it will not dispense with proof by a subscribing witness (where a subscribing witness is necessary), or otherwise as the case may be. Gomersall v. Serle, 2 Y & J. 5 ; Giles v. Smith, 1 C. M. & R. 470.

The enrolments in the Chancery of Crown grants and the enrolments in the Duchy office of leases, &c., of the possessions of the Duchy of Cornwall (and ut semb. of the Duchy of Lancaster), are primary evidence of the grants, and may be proved by examined copies, or copies otherwise authenticated. See Rove v. Brenton, 3 M. & Ry. 218, ante, p. 106. An enrolment of a lease in the Land Revenue Office was indeed rejected as evidence of the lease in Jenkins v. Biddulph, Ry. & M. 339; but this seems to have turned on the wording of an Act of Parliament. Several statutes have since facilitated the proof of deeds and grants of crown lands and those of the Royal Duchies; as 2 Will. 4, c. 1, s. 26, in respect of lands in the survey of the Office of Woods, &c., which makes the memorandum endorsed on the deed to be proof of the making of it and of the due enrolment, without proof of the officer's signature; so 11 & 12 Vict. c. 83, s. 6, as to the proof of enrolments in the Duchies of Lancaster and Cornwall.

The official indorsement of enrolment or registration on deeds which

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