If the witnesses are dead, their handwriting must be proved, unless the will is thirty years old, in which case it is said to prove itself (s); that is, if it is produced from the proper custody, and is otherwise apparently authentic, it will be presumed to be so, even though there are circumstances which would lead to the inference that it has been cancelled (f). The thirty years are computed from the date of the will(). In such a case it is not necessary to call any one of the alleged witnesses, even though they appear to be living (x).

AWARDS.

An award is conclusive evidence of all the substantial matters to which the submission refers, as between the parties to the submission, but not as to third parties (y).

To prove an award, the first step is to prove the submission to the reference. If the submission is a written agreement, the execution by all the parties, including the party who relies on it, must be strictly proved (); but if the submission is by a rule of court or judge's order in an action, it will be sufficient to produce the rule or order, and then to prove the award (a). When the submission contains any special powers which have been exercised, e. g., to enlarge the time, or appoint an umpire, the instrument by which such power has been exercised must be proved, in addition to the submission and prior to the proof of the award; and a recital in the award of the exercise of the power will not be sufficient (b). The award must also be proved to have been duly executed.

(8) Rancliff v. Perkins, Dow. 202. (t) Andrews v. Mottley, 12 C. B., N. S. 526.

(u) M'Kenire v. Fraser, 9 Ves. 5. (x) Doe v. Walley, 8 B. & C. 22.

(y) Lady Wenman v. Mackenzie, 5 E. & B. 447.

(z) Ferris v. Owen, 7 B. & C. 427; Brazin v. Jones, 8 B. & C. 124. (a) Gisborne v. Hart, 5 M. & W. 50. (b) Still v. Halford, 4 Camp. 17.

When there are several arbitrators, it should be shown that all signed in the presence of each other; and even where the award is to be valid, although signed by only one, or less than the actual number of arbitrators, it should appear that all who have not signed have been required to attend (c). Awards by public officers are received with less stringent proof, on the principle omnia præsumuntur ritè esse acta (d). Thus, under several of the Inclosure Acts, awards made by the commissioners are made conclusive evidence that all statutory preliminaries have been observed (e).

(c) Stalworth v. Inns, 13 M. & W. 466; Wright v. Graham, 3 Ex. 131. (d) R. v. Haslingfield, 2 M. & S.

558.

(e) See 41 Geo. 3, c. 109, s. 35; 3 & 4 Vict. c. 31, s. 1; 8 & 9 Vict. c. 118, s. 105.

CHAPTER III.

PUBLIC NON-JUDICIAL WRITINGS.

PUBLIC writings, which are not of a judicial character, are evidence of the matters which they purport to declare; provided they appear to have been obtained from proper custody, i. e., from a place where it is reasonable to presume that they would be deposited, if authentic.

The question of proper custody under this head applies more exclusively to the case of such ancient documents as were considered incidentally in the ninth and tenth chapters of this work; and it will be sufficient to refer to those chapters for the principles which regulate the admissibility and effect of ancient charters, grants, terriers, inquisitions or surveys. On the general question as to what constitutes a proper place of custody, see supra, p. 158.

Proof of public non-judicial documents. This is now chiefly regulated by the Law of Evidence Amendment Act, 1851 (a), s. 14 of which enacts that "whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence in any court of justice, or before any person now or hereafter having by law or consent of parties. authority to hear, receive, and examine evidence, provided it (a) 14 & 15 Vict. c. 99.

be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words."

Under this section it has been held that an unstamped copy of an act-book of the Ecclesiastical Court is evidence of probate to prove executorship (b). So the journals of the House of Lords, entries in the books of tax-collectors, commissioners of the excise or customs, secretaries of state, municipal or parliamentary electors, which were provable before the Act by examined copies, may now be proved either by examined or certified copies under the Act. So charters, letters-patent, grants from the Crown, pardons and commissions, may be proved either by originals, or examined or certified copies; or also, as it seems, by exemplifications under the great seal. As to royal proclamations, Orders in Council, and orders of Government departments, see supra, p. 279. As to proclamations, treaties, &c., of foreign states or colonies, see supra, p. 295. Foreign official documents which cannot be produced here may be proved by examined copies (c).

The 14 & 15 Vict. c. 19, s. 14, cited above, has virtually superseded the 8 & 9 Vict. c. 113, s. 1 (the Documentary Evidence Act, 1845), so far as it refers to public documents: but, as the two Acts are construed cumulatively, and as the earlier Act extends to some private documents, it is subjoined.

The Documentary Evidence Act, 1845 (d), s. 1, provides that " Whenever by any act now in force, or hereafter to be in force, any certificate, official or public document, or document or proceeding of any corporation or joint-stock

(b) Dorret v. Meux, 15 C. B. 142. (d) 8 & 9 Vict. c. 113.

(c) Burnaby v. Baillie, 42 Ch. D.

292.

or other company, or any certified copy of any document, bye-law, entry in any register, or other book, or of any other proceeding, shall be receivable in evidence of any particular in any Court of Justice, or before any legal tribunal or either House of Parliament, or any Committee of either House, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they purport to be sealed or impressed with a stamp, or sealed and signed or signed alone, as required, or impressed with a stamp and signed as directed by the respective acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature, or of the official character of the person appearing to have signed the same, and without any further proof thereof, in every case in which the original record would have been received in evidence."

The effect of these enactments, as to documents of a public nature, is to allow the substitution of certified or examined copies in all cases in which the original, if produced, would be evidence.

Whenever, therefore, it is proposed to tender an examined or certified copy of a public document in the place of an original, the practical question is, whether the original is such a public document as is intrinsically evidence per se (e).

It must be remembered that, notwithstanding the Documentary Evidence Acts, and the 14 & 15 Vict. c. 99, s. 14, there are numerous cases in which the originals of documents, apparently of a public nature, must still be produced, and where neither certificates nor examined copies are admissible. A considerable degree of vagueness still attaches even to many cases in which certified or examined copies are clearly admissible; and it should be remembered that, whenever a doubt exists as to whether a document is public or private, the prudent and the right course will be to be provided with the originals.

(e) Linsey v. Linsey, 29 L. J., P. & M. 28.