plaintiff, though it was produced from the custody of an individual who claimed the tithes of a particular district in the parish, and not from the usual depositories. Tucker v. Wilkins, 4 Simons, 241. The bishop's registry is the proper place for sequestrator's receipts and accounts. Pulley v. Hilton, 12 Price, 629.

Expired leases, coming from the possession of the lessor, are admissible. Plaxton v. Dare, 5 M. & R. 1. Rees v. Walters, 3 M. & W. 527. See further, post, 93.

Proof of Execution of Corporation Deeds; and of Seals.

Fixing the common seal is tantamount to delivery. Com. Dig. Fait. A. 3. The seal must be proved by some one who knows it, but it is not necessary to call a witness (not being an attesting witness) who saw it affixed. Moises v. Thornton, 8 T. R. 307. Brounker v. Atkyns, Skinn. 2. Some seals, as that of London, require no proof. Doe v. Mason, 1 Esp. 53. So the seal of the superior Ecclesiastical Courts (antè, Proof of Probate," p. 81.), and of other superior courts. Vin. Evid. A. b. 69. Antè, p. 73. But the seal of a colonial court must be proved. Henry v. Adey, 3 East, 221. So of the Bank of England; Semb. Doe v. Chambers, 4 A. & E. 410.; and of the Apothecaries' Company. Chadwick v. Bunning, R. & M. 306. Though the seal need not be shown in the first instance to be fixed by the proper person, yet the deed may be invalidated by proof of its being fixed by a stranger, or without proper authority. Anon. 12 Mod. 423. Clarke v. Imperial Gas Co. 4 B. & Ad. 315. R. v. Haughley, ibid. 650. It is not settled whether the attesting witness of a corporation deed need be called; Doe v. Chambers, suprà; nor whether such a deed proves itself after thirty years; R. v. Bathwick, 2 B. & Ad. 648.

Proof of Deeds and Private Writings.

Attesting witness must be called.] Wherever a deed or other instrument is subscribed by attesting witnesses, one of them, at least, must be called to prove the execution; and such testimony cannot be dispensed with, though the defendant has admitted the execution in his answer to a bill in Chancery. Call v. Dunning, 4 East, 53. ; but see Bowles v. Langworthy, 5 T. R. 366.; and the cases as to admissions, cited, antè, p. 2. A notice to quit (Doe v. Durnford, 2 M. & S. 62.) or a warrant to distrain (Higgs v. Dixon, 2 Stark. 180.), if attested, must be proved by calling the attesting witness.

But where the attesting witness is dead (Anon. 12 Mod. 607.), or insane (Currie v. Child, 3 Camp. 283.), or infamous (Jones v. Mason, 2 Stra. 833.), or absent in a foreign country, or not amenable to the process of the superior courts (Prince v. Blackburn, 2 East, 252.), as in Ireland (Hodnett v. Forman, 1 Stark. 90.), although he might have been examined on interrogatories (Glubb v. Edwards, 2 M. & Rob. 300.); or where he cannot be found after diligent inquiry (Cunliffe v. Sefton, 2 East, 183.); evidence of the witness's handwriting is admissible. A subscribing witness, who has become blind, ought nevertheless to be called in order to learn from him any thing material that passed at the execution. Crank v. Frith, 2 M. & Rob. 262., per Lord Abinger C. B. In a previous case (Pedler v. Paige, 1 M. & Rob. 258.) Park J. had admitted proof of the handwriting of a blind witness, but with some

expression of doubt, on the authority of Wood v. Drury, 1 Ld. Raym 734.; but that case is obscurely reported, and if it be an authority for the proposition, it also shows that it would be sufficient to prove his hand, though there is another attesting witness who might have been called; which is clearly not the present practice.

With regard to the inquiry necessary to let in such evidence, it has been held that an inquiry after an attesting witness to a bond at the residence of the obligor and obligee is sufficient. Cunliffe v. Sefton, 2 East, 183. So, diligent inquiry at the witness's usual place of residence, and information there and from the witness's father, that he had absconded to avoid his creditors. Crosby v. Percy, 1 Taunt. 365. So, that on inquiry after the witness at the admiralty, it appeared by the last report that he was serving on board of some ship; Parker v. Hoskins, 2 Taunt. 223.; or that the witness went abroad twenty years ago and has never been heard of since. Doe v. Johnson, 1 Phill. Ev. 455. (n). A witness who was defendant's clerk, being subpoenaed, said he would not attend, and the trial was twice put off in consequence of his absence; search was then made at the defendant's house, and in the neighbourhood, and upon information at the defendant's that the witness was gone to Margate, inquiry was made there without success: held that, under these circumstances, evidence of his handwriting was admissible. Burt v. Walker, 4 B. & A. 697. Where diligent inquiry had been made without success for a witness, proof of his handwriting was admitted, although it appeared that a letter from him, concealing his retreat, had been received before the trial. Morgan v, Morgan, 9 Bing. 359. So where a solicitor's clerk was the witness, and the solicitor could give no account of him; although afterwards at the trial he recollected where he might probably be heard of. Miller v. Miller, 2 New Ca. 76.

The sufficiency of the enquiry is for the determination of the judge, who will found his opinion on the nature and circumstances of each case. It therefore seems of little importance to collect all the cases that have been decided upon this point. When the court is satisfied that due diligence has been used to find the witness, then it is sufficient to prove his handwriting without proving the handwriting of the party, unless with a view to establish his identity. Nelson v. Whittall, 1 B. & A. 19. Gough v. Cecil, MS. cited Selw. N. P. 516. (n).

Some evidence of the identity of the party to the instrument must always be given, though very slight evidence will be sufficient. It has, however, been ruled, after a review of all the previous cases, that mere identity of name is not sufficient. Whitelocke v. Musgrove, 1 C. § M. 511., S. C. 3 Tyr. 541. It seems that where the attestation states the residence of the party, proof that the party sued resided there, would be prima facie evidence of identity. Id. ibid., and see antè, p. 77. Proof that the defendant had spoken of the contents of the deed, would be sufficient evidence of identity. Doe v. Paul, 3 C. & P. 613. Where the witness to a bond stated that he saw it executed by a person who was introduced under the name of Hawkshaw (the name of the defendant), but could not identify him, the plaintiff was nonsuited. Par kins v. Hawkshaw, 2 Stark. 239. Middleton v. Sandford, 4 Camp. 34.

It is not sufficient ground for admitting evidence of the witness's handwriting that he is unable to attend from illness, and lies without hope of recovery. Harrison v. Blades, 3 Camp. 457. The party in

terested in his testimony must get a judge's order to examine him out of court.

Where the witness was interested at the time of the attestation and also at the trial, it is said to be sufficient to prove the signature of the party alone; Swire v. Bell, 5 T. R. 371.; but in that case the execution was also proved both by the attesting witness in person, and by proof of his handwriting; so that it is of little authority as a decision on the point. If a party, knowing the witness to be interested, requests him to attest the instrument, he cannot afterwards object to his competency. Honeywood v. Peacock, 3 Camp. 196. Where the witness becomes interested after the attestation, a distinction is to be observed in general, proof of the handwriting of the witness will be admitted, as where the witness becomes interested as administrator and plaintiff on the record; Godfrey v. Norris, 1 Stra. 34., Cunliffe v. Sefton, 2 East, 183.; or by marriage with one of the parties; Buckley 1. Smith, 2 Esp. 697. So, as it seems, where a man enters into a general partnership, and thereby becomes interested in instruments which he has attested by acquiring a share in the credits, and taking upon himself the responsibilities of the firm, his handwriting may be proved. Semb. per Cur. Hovill v. Stephenson, 5 Bing. 496. But where the plaintiff in an action on a charter-party had communicated to the attesting witness an interest in the adventure subsequently to the execution of the instrument, it was held that evidence of his handwriting was inadmissible; for the plaintiff would thereby deprive the defendant of the advantage of the witness's cross-examination by his own act. S. C., ibid. Where the name of a fictitious person is inserted as witness; Fasset v. Brown, Peake, 23.; or where the subscribing witness denies any knowledge of the execution; Talbot v. Hodson, 7 Taunt. 251.; (overruling Phipps v. Parker, 1 Camp. 412.); Fitzgerald v. Elsee, 2 Camp. 635.; Boxer v. Rabeth, Gow. 175. ; or where the attesting witness subscribes his name without the knowledge or consent of the parties; M'Craw v. Gentry, 3 Camp. 232.; in these cases it becomes necessary to prove the instrument by calling some one acquainted with the handwriting of the party executing it; or who was present at the time of execution; or by the admission of the party to it.

Where there are two attesting witnesses, and one of them is incompetent, or his evidence cannot be obtained, the other witness must be called; and evidence of the handwriting of the former witness will not be sufficient. Adm, in Cunliffe v. Sefton, 2 East, 183. But where a bond is attested by two witnesses, and one of them is dead and the other beyond the reach of the process of the court; Adam v. Kerr, 1 B. & P. 360.; or, where one cannot be found, and the other is interested; Cunliffe v. Sefton, suprà, proof of the handwriting of either seems to be sufficient.

It will not be assumed that a name subscribed to an instrument is that of an attesting witness thus where a deed purported to be "sealed by order of the Governor and Company of the Bank, J. Knight, Secretary," it was held unnecessary to call J. Knight. Doe v. Chambers, 4 A. & E. 410.

Execution how proved.] In attesting a deed it is not essentially necessary that the witness should see the party sign or seal; if he sees him deliver it already signed and sealed, or sealed only, where signa

ture is unnecessary, it will be sufficient. Thus, proof by the attesting witness that he was not present when the deed was executed, but was afterwards requested by one of several parties to sign the attestation, is sufficient evidence of the execution of the deed by such party; Grellier v. Neale, Peake, 146.; and witnesses may be called to prove the handwriting of the remaining parties, as to whom the deed must be considered as unattested; in which case sealing and delivery may be presumed. Ibid. It is not necessary for the attesting witness to prove that certain blanks in the deed were filled up at the time of execution, for this will be presumed; and the witness generally sees nothing but the signing or delivery. England v. Roper, 1 Stark. 304. Where a party executes a deed with a blank in it, which is afterwards filled up with his assent, in his presence, and he subsequently recognises the deed as valid, the filling up of the blank will not avoid it; for till the blank is duly supplied, it is incomplete and in fieri. Hudson v. Revett, 5 Bing. 368. Hall v. Chandless, 4 Bing. 123. But generally a deed executed in blank and left to be filled by another, who has no authority under seal, is void at common law; Hibblewhite v. M'Morine, 6 M. & W. 200.; and Texira v. Evans, 1 Anstr. 228. contrà, is not law. While the deed is still in the hands of the party executing it, another name may be inserted, and it may be re-executed without avoiding it as to the first parties, or requiring a new stamp. Spicer v. Burgess, 1 C. M. & R. 129. Jones v. Jones, 1 C. & M. 721. Where a bond was exe cuted by the defendant, and attested by a witness in one room, and was then taken into an adjoining room, and at the request of the defendant's attorney, and in the defendant's hearing, was attested by another witness who knew the defendant's handwriting, it was held that the execution might be proved by the latter witness, the whole being considered as one entire transaction. Parke v. Mears, 2 B. & P. 217.; and see Anon. Archb. Pl. & Ev. 378. In proving the execution of a deed, the attesting witness frequently states that he does not recollect the fact of the deed being executed in his presence, but that, seeing his own signature to it, he has no doubt that he saw it executed; this has always been received as sufficient proof of the execution. Per Bayley J., Maugham v. Hubbard, 8 B. & C. 16.; per Taunton J., R. v. St. Martin's, Leicester, 2 A. & E. 213.

The sealing of the deed need not take place in the presence of the witness; it is sufficient if the party acknowledges an impression already made to be his seal. Where one partner in the presence of his copartner executed a deed for both, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, it was held sufficient; for that no particular mode of delivery was requisite, and it was enough if a party executing a deed treated it as his own. Ball v. Dunsterville, 4 T. R. 313. But where a deed is executed under the authority of a power requiring it to be under the hands and seals of the parties, the parties must use separate seals. Thus, by stat. 8 & 9 Will. 3. c. 30., certificates are required to be under the hands and seals of the overseers and churchwardens; it was held that a certificate signed by two churchwardens and one overseer, but bearing two seals only, was not a valid certificate. R. v. Austrey, 1 Phill. Ev. 453., S. C. 6 M. & S. 319., The circumstance of a party writing his name opposite to the seal on an instrument which purports to be sealed and delivered by him, is evidence of a sealing and delivery to go to a jury.

Talbot v. Hodson, 7 Taunt. 251. So when a subscribing witness is dead, proof of the handwriting of such witness is evidence of every thing on the face of the paper which imports to be sealed by the party. Per Buller J., Adam v. Kerr, 1 B. & P. 361.

In the delivery of a deed no particular form is necessary. Throwing down the deed upon a table with the intent that the other party shall take it up, is sufficient. Com. Dig. Fait, (A. 3.). Where a deed is delivered by virtue of a power of attorney, the power should be produced; Johnson v. Mason, 1 Esp. 89.; and proved; 1 Phill. Ev. p. 505. (4th ed.). In some instances a general agent has been presumed to have such authority. Doe v. East London W. W. Company, M. & M. 149. But, in general, the agent must be authorised by deed. Berkeley v. Hardy, 8 D. & R. 102. Hibblewhite v. M' Morine, 6 M. & W. 200.

A condition previously expressed, though not introduced into the act of delivery, is sufficient to make the delivery of the deed as an escrow. Per Abbott C. J., Johnson v. Baker, 4 B. & A. 441.; and see Murray v. Earl of Stair, 2 B. & C. 82. Where a person delivers a deed in the presence of a witness, but retains it in his own possession, there being nothing to show that it was not intended to operate immediately, it will take effect as a deed and not as an escrow; and the delivery of a deed to a third party for the use of the person in whose favour the deed is executed, is good, though that party be not the agent of the latter. Doe v. Knight, 5 B. & C. 671. In a case where a debtor executed a mortgage to his creditor unknown to the latter, and kept it twelve years in his own custody till he died, the deed was held valid even against creditors from the date, in the absence of evidence to shew it was an escrow. Exton v. Scott, 6 Sim. 31. Where A. executes an instrument, and delivers it to B. as an escrow to be delivered to C. on a certain event, possession by C. is primâ facie evidence against A. of the performance of the condition. Hare v. Horton, 5 B. & Àd. 715. A deed executed by a marksman may be proved by a person who has seen the party make his mark, and can speak to its peculiarities. George v. Surrey, M. & M. 516.

Proof and comparison of handwriting.] The result of the various cases on this head is thus stated by Mr. Justice Patteson in Doe v. Suckermore, 5 A. & E. 730-1., where references to all the authorities will be found. The knowledge of handwriting may be acquired either by see ing 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, 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