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 apply to the member to verify his handwriting, has been held insufficient. Batchelor v. Sir J. Honeywood, 2 Esp. 714. Cary v. Pitt, Peake, Ev. App. 84. A witness cannot be permitted to form his opinion of the handwriting from extrinsic circumstances, as from 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 v. Suckermore, 5 A. & E. 736. Ancient writings (as a receiver's account one hundred years old) may be laid before a witness at the trial for his inspection; and after forming a judgment of their character, his belief as to the handwriting of the document in question may be inquired into. Doe v. Tarver, R. & M. 143.; and see Roe v. Rawlings, 7 East, 282. 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 studies. Per Coleridge J., Doe v. Suckermore, suprà.

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 is an unsettled question. In the case of Doe v. Suckermore, supra, the Court of King's Bench 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 attesting witness. It is also very doubtful 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; it is, however, certain that such evidence should have no weight. Gurney v. Langlands, 5 B. & A. 330. Doe v. Suckermore, 5 A. & E. 751.

Under certain circumstances the court and jury are 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 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 v. Newton, 5 A. & E. 514. 534. Griffits v. Ivery, 11 A. & E. 323. To put such documents into the hands of the witness, merely for the purpose of shaking his credit by subsequent independent evidence contradicting his testimony as to these documents, would tend to raise collateral issues. Hughes v. Rogers, 8 M. & W. 123.

Proof of execution, when dispensed with.] When a deed is thirty years' old, it proves itself, and no evidence of execution is necessary; B. N. P. 255.; so with regard to steward's books of receipts, without proof of his hand, if they come from the proper custody; Wynne v. Tyrwhitt, 4 B. & A. 376.; private letters; Doe v. Beynon, 12 A. & E. 431.; a will produced by the officer of the Ecclesiastical Court; Doe v. Lloyd, Peake Ev. Ap. 91.; a bond; Chelsea W. W. Company v. Cowper, 1 Esp. 275.; and other old writings. Fry v. Wood, Selw. N. P. 517. (). Even if it appear that the attesting witness is alive and capable of being produced, it is unnecessary to call him where the deed is thirty years old. Doe v. Wolley, 8 B. & C. 22.

Where an old deed is offered in evidence without proof of execu tion, some account ought to be 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 antè, p. 85, 86. Custody of ancient Writings." It has, indeed, been held sufficient, on an appeal against a removal, for the respondent parish to produce a certificate thirty years old, without showing that it had been kept in the parish chest; R. v. Ryton, 5 T. R. 259. ; and see R. v. Netherthong, 2 M.& S. 337.; but this seems to be at variance with principle, and with the authority of Evans v. Rees, 10 A. & E. 151., and other cases cited antè, p. 86. If there is any rasure or interlineation in an old deed, it ought to be proved in the regular manner by the witness if living, or by proof of his handwriting and that of the party, if dead; for in such a case it is necessary to obviate the presumption which otherwise arises against the instrument. B. N. P.255. See the rule as to alterations and interlineations in bills of exchange, post, Assumpsit on Bills." But perhaps this is strictly necessary only where the alteration appears on the face of it material or suspicious. 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 observ ation to the jury, unless they are of sufficient importance to warrant the judge in excluding them altogether.

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. Pearce v. Hooper, 3 Taunt. 62. As where assignees produce 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 call the subscribing witness 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 produces 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 inde pendent of the lease. Doe 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 plaintiffs (assignees of the bankrupt) impugn as fraudulent. Carr v. Burdiss, ì 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 subscribing witness, or to prove livery. Doe v. Wainwright, 5 A. & 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, R. & 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 v. Marquis of Cleveland, 9 B. & C. 864. 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 exe cution 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 passes. Therefore, where defendant wished to shew 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 attesting witness. Col lins v. Bayntun, 1 A. & E. N. S. 117.

A deed may be given in evidence under a rule of court or judge's order made by consent, without proof of execution. B. N. P. 256. So if the execution of the deed or the handwriting of the witness be one of the admissions in the cause, antè, p. 38. 44. ; or if money has been paid into court on the count in which the deed is stated, antè, p. 45. ; or if the party be estopped to dispute it, as by recital, antè, p. 47. But the estoppel is confined to the part recited; and, if the party wishes to prove more, he must produce the attesting witness in the usual way. Gillett v. Abbott, 7 A. & E. 783.

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 parol 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 for double value; plea "no demand;" 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 the plaintiff: held, that the production of the attesting witness (though known to the plaintiff) was

So where notice was

unnecessary. Poole v. Warren, 8 A. & E. 582. given to produce a deed in defendant's possession, and defendant at the trial refused to do so, plaintiff was allowed to prove it by a copy without calling any attesting witness; and it was held that defendant could not put the plaintiff to a strict proof by afterwards producing the attested original. Jackson v. Allen, 3 Stark. 74. So where the plaintiff declared on a lost bond, and a witness stated that there were subscribing witnesses but he did not know the 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." Ibid. And it seems that when an executor shows payment of a bond under plene administravit, he must prove the bond in the regular way, unless perhaps where the action is on a simple contract. B. N. P. 143.

Deed inrolled.] Where a deed requiring inrolment by statute, as a bargain and sale, is accordingly inrolled, proof of the inrolment by an examined copy will dispense with evidence of the execution by any of the parties to the deed; Thurle v. Madison, Styles, 462.; Smartle v. Williams, 1 Salk. 280.; and this is expressly provided in the case of inrolled deeds pleaded by virtue of stat. 10 Ann. c. 18. s. 3. So where a deed not requiring inrolment is inrolled on the acknowledgment 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 inrolment be a record, or be rendered evidence by an act of parliament, it will not dispense with proof by a subscribing witness; as in the case of an assignment enrolled under the Bankrupt Act, 6 Geo. 4. t. 16.; Gomersall v. Serle, 2 Y. & J. 5.; Giles v. Smith, 1 C. M. & R. 470. ; or of a lease of crown land inrolled in the office of the auditor of the land revenue. Jenkins v. Biddulph, R. & M. 339. But in Rowe v. Brenton, 3 M. & R. 218., such an inrolment of leases of the possessions of the Duchy of Cornwall was admitted as primary evidence. See further, antè, p. 74.

Proof of Wills of Land.

Production of the Will.] In order to prove a devise of lands the will itself must be produced; an exemplification, or probate of the will is not evidence, as the Spiritual Court has no power to authenticate a will quoad anything but personalty. Doe v. Calvert, 2 Camp. 389. B. N. P. 246. Probate is not evidence even to prove relationship in a case of pedigree; Doe v. Ormerod, antè, p.27.; Dike v. Polhill, 1 Ld. Raym. 744.; but where the will is lost, the register or ledger-book of the Ecclesiastical Court, or an examined copy of it, has been admitted as evidence. St. Legar v. Adams, 1 Ld. Raym. 731.; B. N. P. 246.

What witnesses must be called.] To prove a will in a court of law it is sufficient to call one of the witnesses, if he can speak to all the requisites of attestation; B. N. P. 264.; Longford v. Eyre, 1P. Wms. 741. But on an issue out of Chancery, all the witnesses ought to be called. Bootle v. Blundell, 19 Ves. 494., 1 Cooper, 136. Though this is the general rule in cases where the suit is instituted by the devisee to establish the will, yet where the suit is by the heir against the devisee for the purpose of setting aside the will, the devisee will not be re

quired to produce all the witnesses. Tatham v. Wright, 2 Russ. & My. 1.

Upon the trial of an ejectment brought by the heir for the recovery of the same lands as those mentioned in the last case, one of the attesting witnesses, who proved the will on the issue out of Chancery, having died, the defendant proved his testimony from the short-hand writer's notes, which was held to be sufficient evidence of the execution of the will, though another attesting witness was present at the trial. But the previous proceedings in the Court of Chancery, upon which an issue had been directed and found for the devisee, were held not to be evidence of the execution. Wright v. Tatham, 1 A. & E. 3. See antè, p. 34.

Signing by the devisor.] By the Statute of Frauds, 29 Car. 2. c. 3. s. 5. (which is still in force as to wills made before 1st January, 1838), all devises and bequests of lands or tenements must be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions; and must be attested and subscribed, in the presence of the devisor, by three or four credible witnesses, or else shall be utterly void and of none effect.

Notwithstanding some earlier cases to the contrary, it is now the better opinion, that sealing, without signing, is not a sufficient execution within the statute. Smith v. Evans, 1 Wils. 313. Wright v. Wakeford, 17 Ves. 458. It is sufficient if the testator sign his name at the beginning of the will. Lemayne v. Stanley, 3 Lev. 1., S. C. 1 Freem. 538. If the will is written on several sheets, and the testator signs some and intends to sign the rest, but does not, this is not a sufficient execution; Right v. Price, 1 Doug. 241.; but where a will, written on three sides of a sheet of paper, concluded by stating that the testator had signed his name to the first two sides, and had put his hand and seal to the last, and in fact he had put his hand and seal to the last, but had omitted to sign the two other sides, the execution was held good, the signing of the last sheet showing that the former intention had been abandoned. Winsor v. Pratt, 2 B. & B. 650. Where a codicil was duly executed and attested by three witnesses, and written on the same paper with an unexecuted will to which it expressly referred, it was held that such execution gave effect to the will, and that it thereby became a good will of lands. Doe v. Evans, 1 C. & M. 42., S. C. 3 Tyr. 56. But a codicil may operate as a partial re-publication only. Monypenny v. Bristow, 2 Russ. & My. 117. Where the testator is blind, it is not necessary to read over the will in the presence of the attesting witnesses previously to execution. Longchamp v. Fish, 2 N. R. 415.

Attestation.] The statute 29 Car. 2. c. 3. does not direct that the witnesses shall see the testator sign; therefore it is sufficient if the testator acknowledge to the witnesses, either separately or all together, that the will or the handwriting is his. Stonehouse v. Evelyn, 3 P. Wms. 254.; Johnson v. Johnson, 1 C. & M. 140. But where the attestation purported that the will had been signed in the presence of the three witnesses who, in his presence, and that of each other, signed the attestation, it was held insufficient to call one of them who stated that he and another saw the testator sign, but that the third, whose signature was proved, was not then present. Doe v. Lewis, 7 C. & P. 574. It is