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Proof of probates and letters of administration.] The probate of a will is proved by the production of the instrument itself; and proof of the seal of the court is not necessary. In order to prove the title of the executor to personal property, the probate must be given in evidence; it is not sufficient to produce the will itself. Pinney v. Pinney, 8 B. and C. 335 (a). When the probate is lost it is not the practice of the Ecclesiastical court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shepherd v. Shorthose, 1 Str. 412. To prove the probate revoked, an entry of the revocation in the book of the Prerogative Court is good evidence. Ramsbotham's case, 1 Leach, 30, (n.) 3d ed.

Administration is proved by the production of the letters of administration granted by the Ecclesiastical Court. Kempton v. Cross, Rep. temp. Hardw. 108. B. N. P. 246. So the original book of acts of that court directing the granting the letters is evidence. B. N. P. 246. And an examined copy of such act book is also evidence. Davis v. Williams, 13 East, 232.

Proof of foreign laws.] The written law of a foreign state must be proved by a copy of the law properly authenticated. Boehtlinck v. Schneider, 3 Esp. 58; Clegg v. Levy, 3 Camp. 166. It does not seem necessary that the copy should have been examined with the original. See cases post, tit. Bigamy. The unwritten law of a foreign state (having first been ascertained to be part of the unwritten law by witnesses professionally conversant with the laws of the state) may be proved by the parol evidence of witnesses possessing competent skill. Millar v. Heinrick, 4 Camp. 155.

A judgment duly verified by a scal proved to be that of the foreign court, is presumed to be regular and agreeable to the foreign law, until the contrary is shown. Alivon v. Furnival, 4 Tyr. 757 ; C. M. and R. 277.

Proof of public books and documents.] Wherever the contents of a public book or document are admissible in evidence, as such, examined copies are likewise evidence, as in the case of registers of marriages, deaths, &c. Vide post (1). Thus an examined copy of an order in council is sufficient, without the production of the council books themselves. Eyre v. Palsgrave, 2 Campb. 606. So copies of the transfer books of the East India Company; Anon. 2 Dougl. 593, (n); and of the Bank of England; [*193] Marsh v. Colnett, 1 Esp. *665; Bretton v.Cope, Peake, N. P.C. 30; of a bank note filed at the bank; Mann v. Cary, 3 Salk. 155; so the books of commissioners of land-tax; King's case, 2 T. R. 234; or of excise; Fuller v. Gotch, Carth. 346; or of a poll-book at elections; Mead v. Robinson, Willes, 424. In one case the copy of an agreement contained in one of the books of the Bodleian Library, (which cannot be removed) was allowed to be read in evidence. Downes v. Moreman, Bunb. 189. 2 Gwill. 659.

The books of the King's Bench and Fleet Prisons, when they are admissible, are not such public documents that a copy of them may be giv

(1) Proceedings in civil suits before justices of the peace are within the rule, and sworn copies are evidence. Welsh v. Crawford, 14 S. & R. 440.

(a) Eng. Com. L. Rep. xv. 230.

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en in evidence, for they are not kept by any public authority. Salte v. Thomas, 3 B. and P. 190.

Corporation books may be given in evidence, as public books, when they have been kept as such, the entries having been made by the proper officer, or by a third person, in his sickness or absence. Mothersell's case, 1 Str. 93. But a book containing minutes of corporation proceedings, kept by a person not a member of the corporation, and not kept as a public book, is inadmissible. Id. An examined copy of a corporate book is evidence. Brocas v. Mayor of London, 1 Str. 308. Gwyn's case, 1 Str. 401 (1).

It is not settled whether the attesting witness of a corporation deed need be called; Doe v. Chambers, 4 E. and A. 410 (a); or whether such a deed proves itself after thirty years. Rex v. Bathwick, 2 B. and Ad. 648 (b).

Inspection of corporation books and other public writings is granted in civil actions, but not in criminal cases, where it would have the effect of making a defendant furnish evidence to criminate himself. Heydon's case, 1 W. Bl. 351. Purnell's case, Id. 37, 1 Willes, 239, 2 Str. 1210.

Proof of public registers.] Public registers, as of births, marriages, or deaths, are proved either by the production of the register itself or of an examined copy. B. N. P. 247. Parol evidence of the contents of a register has been admitted; yet the propriety of such evidence, says Buller, may well be doubted, because it is not the best evidence the nature of the case is capable of. B. N. P. 247. A copy of a record or of a public book is not, in fact, secondary evidence; and therefore the opinion of Mr. Justice Buller appears to be correct. A register is only one mode of proof of the fact which it records, and the fact may be proved without producing the register, by the evidence of persons who were present. Thus, upon an indictment for bigamy, it was held sufficient to prove the marriage, by the evidence of a person who was present at it, without proving the registration, licence, or banns. Alison's case, Russ. and Ry. C. C. 109 (c) (2).

In proving a register, some evidence of the identity of the parties must be given, as by proof of the hand writing, for which purpose it is not necessary to call the subscribing witnesses. Per Lord Mansfield, Birt v. Barlow, 1 Dougl. 174. The identity is usually established [*194] by calling the minister, clerk, or some other person who was present at the ceremony.

By the 52 Geo. 3, c. 146, (which is still in force for the registration of births and burials by clergymen of the church of England) it is provided that verified copies shall be annually sent to the register of the diocese. It seems that such verified copies being public documents, are evidence as well as the originals, and may be proved by examined copies. Per

(1) Owing v. Speed, 5 Wheat. 420. They are evidence in disputes between its members, but not against strangers. Comm. v. Woelper and al., 3 S. and R. 29. Jackson v. Walsh, 3 Johns. 226. Must be kept by the proper officer. Highlands Turnpike Co. v. M'Kean,

10 Johns. 154.

(2) Lessee of Hyam v. Edwards, 1 Dall. 2. Stoever v. Lessee of Whitmore, 6 Binn. 416. Jacocks v. Gilliam, 2 Murphy, 47. Huntley v. Comstock, 2 Root, 99. Jackson v. Boneham, 15 Johns. 226. Sumner v. Sebec, 3 Greenl. 223.

(a) Eng. Com. L. Rep. xxxi. 99. (b) Id. xxii. 152. (e) 1 Eng. C. C. 109.

Alderson, B., Walker v. Beauchamp, 6 C. and P. 552 (a). But is otherwise of the returns enjoined by the canons of 1603, which can only be used as secondary evidence. S. C.

By the 6 and 7 Wm. 4, c. 86, for registering births, marriages, and deaths in England, it is enacted, that certified copies of entries purporting to be sealed or stamped with the seal of the office of the Register General, shall be evidence of the birth, death, or marriage to which they relate, without further proof of such entries.

For the recent act amending the law of marriages, see post, tit. Bigamy.

Proof of ancient documents, terriers, &c.] In many cases, ancient documents are admitted in evidence, to establish facts which, had they been recently made, they would not have been allowed to prove. These documents prove themselves, provided it appear that they are produced out of the proper custody. The proper repository of ecclesiastical terriers or maps is the registry of the bishop or archdeacon of the diocese. Atkins v. Hatton, 2 Anstr. 387. Potts v. Durant, 3 Anstr. 795. On an issue to try the boundaries of two parishes, an old terrier or map of their limits, drawn in an in artificial manner, brought from a box of old papers relating to the parish, in the possession of the representatives of the rector, was rejected, not being signed by any person bearing a public character or office in the parish. Earl v. Lewis, 4 Esp. 3.

So also with regard to private ancient documents, it must appear that they came from the custody of some person connected with the property. Thus, where upon an issue to try a right of common, an old grant to a priory, brought from the Cottonian MSS. in the British Museum, was offered in evidence, it was rejected by Lawrence, J., the possession of it not being sufficiently accounted for, nor connected with any one who had an interest in the land. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. So a grant to the abbey of Glastonbury, contained in an ancient MS., deposited in the Bodleian Library, entitled Secretum Abbatis, was rejected, as not coming from the proper repository. Mitchell v. Rabbets, cited Id.

Proof of seals.] Where necessary, seal must be proved by some one acquainted with it, but it is not requisite to call a witness who saw it affixed. Moises v. Thornton, 8 T. R. 307. Some seals, as that of London, require no proof. Doe v. Mason, 1 Esp. 53. So the seal of the

[*195] superior Ecclesiastical Courts, and other superior *courts. Ante, p. 186. But the seal of a foreign court must be shown to be genuine. Henry v. Adey, 3 East, 221. So of the Bank of England. Semb. Doe v. Chambers, 4 A. and E. 410 (b). So of the Apothecaries' Company. Chadwick v. Bunning, R. and Moo. 306 (c) (1).

Although the seal need not be shown to be affixed by the proper person, yet the deed may be invalidated by proof of the seal being affixed by a stranger, or without proper authority. Clarke v. Imperial Gas Co., 4 B. and Ad. 315 (d).

(1) The seal of a private corporation must be proved. Den v. Vreelandt, 2 Halst. 352. Leazure v. Hillegas, 7 S. & R. 313. Foster v. Shaw, Ibid. 156. Jackson v. Pratt, 10 Johns.


↑ (a) Eng. Com. L. Rep. xxv. 539. (b) Id. xxxi. 99. (c) Id. xxi. 447. (d) Id. xxiv. 64.

Proof of private documents-attesting witness.] The execution of a private document, which has been attested by a witness subscribing it, must be proved by calling that witness, although the document may not be such as by law is required to have the attestation of a witness. Thus if a warrant of distress has been attested, the attesting witness must be produced. Higgs v. Dixon, 2 Stark. 180 (a). And even where the defendant himself was proved to have admitted the execution, in answer to a bill in chancery, this was held insufficient, without calling the attesting witness. Call v. Dunning, 4 East, 53. See also Abbott v. Plumbe, 1 Dougl. 217.

Proof of private documents-attesting witness-when proof waived.] Where the attesting witness is dead; Anon. 12 Mod. 607; or blind; Wood v. Drury, 1 Lord Raym. 734; Pedley v. Paige, 1 Moo. and Rob. 258; or insane: Currie v. Child, 3 Campb. 283; or infamous; Jones v. Mason, 2 Str. 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. Foreman, 1 Stark. 90 (b), or where he cannot be found, after diligent inquiry; Cunliffe v. Sefton, 2 East, 183; in all these cases evidence of the attesting witness's handwriting is admissible. As to the nature of the inquiry, see Rosc. Dig. Ev. N. P. 88, 4th ed. (1).

Some evidence must be given in these cases of the identity of the executing party; and although there are cases to the contrary, it is now held that mere identity of name is not sufficient proof of the identity of the party. Whitelocke v. Musgrave, 1 Crom. and Mee. 511, 3 Tyr. 541.

S. C.

The illness of the attesting witness, although he lies without hope of recovery, is not of sufficient ground for letting in evidence of his handwriting. Harrison v. Blades, 3 Campb. 457.

Where a witness is interested at the time of his attesting an instrument, it is the same as if it were unattested, and the execution must be proved by evidence of the handwriting of the party executing. Swire v. Bell, 5 T. R. 371. But a party who, with a knowledge of the interest, has requested the witness to attest, cannot afterwards object to him on the ground of interest. Honeywood v. Peacock, 3 Campb. 196. Where a witness becomes interested after the attestation, in general, proof of his handwriting is admissible, as where he becomes administrator. Godfrey v. Norris, 1 Str. 34; 2 East, 183. But in some cases, as of a witness be

(1) Upon the subject of proof by attesting witnesses, see 1 Starkie on Ev. new ed. 320, and notes.

A few additional references are here made:

In order to prove the execution of a paper by secondary evidence, it is only necessary for the party to show that he has neglected nothing which afforded a reasonable hope of procuring the testimony of the subscribing witness. Conrad v. Farrow, 5 Watts, 536.

The absence of a witness from the state so far as it affects the admissibility of secondary testimony, has the same effect as his death. Alter v. Borghans, 8 Watts, 77.

When there is other proof that witness is dead or absent, it is unnecessary to take out a subpoena. Clark v. Boyd, 2 Ohio, 59.

In the absence of the instrumental witness, or of proof of the handwriting of the witnesses and parties, the next best evidence is the acknowledgment of the parties. Ringwood v. Bethlehem, 1 Green. 221.

The confession of a proof of handwriting.

party that he executed a paper has been held not to be secondary to Conrad v. Farrow, 5 Watts, 536.

(a) Eng. Com. L. Rep. iii. 304. (b) Id. ii. 309.

coming partner, it has been held otherwise. Hovill v. Stephenson, 5 [*196] Bingh. *493 (a). Where the name of a fictitious witness is inserted; Fasset v. Brown, Peake, 23; or where the attesting witness denies all knowledge of the execution; Talbot v. Hodson, 7 Taunt. 251 (b). Fizgerald v. Elsee, 2 Campb. 635; evidence of the handwriting of the party is sufficient proof of its execution. So where an attesting witness subscribes his name without the knowledge or consent of the parties. M'Craw v. Gentry, 3 Campb. 232.

Where there are two attesting witnesses, and one of them cannot be produced, being dead, &c., it is not sufficient to prove his handwriting, but the other witness must be called. Cunliffe v. Sefton, 2 East, 183. M'Craw v. Gentry, 3 Campb. 232. But if neither can be produced, proof of the handwriting of one only is sufficient. Adam v. Kerr, 1 B. and P. 360.

Proof of private documents-evidence of handwriting.] Where a party cannot sign his name, but makes his mark, that mark may be proved by a person who has seen him make the mark, and is acquainted with it. Per Tindal, C. J., hæsitanter, George v. Surrey, Moo. and M. 516 (c). Where a witness had seen the party execute a bail-bond, but had never seen him write his name on any other occasion, and stated that the signature to the bond produced, was like the handwriting which he saw subscribed, but that he had no belief on the subject, this was held to be evidence of the handwriting to go to the jury. Garrells v. Alexander, 4 Esp. 37. But it is otherwise, where the witness has only seen the party write his name once, and then for the purpose of making the witness competent to give evidence in the suit. Stranger v. Searle, 1 Esp. 14. Where the witness stated that he had only seen the party upon one occasion sign his name to an instrument, to which he was attesting witness, and that he was unable to form an opinion as to the hand writing, without inspecting that other instrument, his evidence was held inadmissible. Filliter v. Minchin, Mann. Index, 131. In another (case, under similar circumstances, Dallas, J., allowed a witness to refresh his memory, by referring to the original document, which he had formerly seen signed. Burr v. Harper, Holt N. P. C. 420 (d). It is sufficient, if the witness has seen the party write his surname only. Lewis v. Sapio, Moo. and Mal. 39 (e); overruling Powell v. Ford, 2 Stark. 164 (ƒ).

It is not essential to the proof of handwriting, that the witness should have seen the party write. There are various other modes in which he may become acquainted with the handwriting (1). Thus, where a witness for the defendant stated that he had never seen the person in question write, but that his name was subscribed to an affidavit, which had been used by the plaintiff, and that he had examined that signature, so as

(1) Hammond's case, 2 Greenl. 33. Russell v. Coffin, 8 Pick. 143. As where the witness has received promissory notes which the party has paid, Johnson v. Daverne, 19 Johns. 134. See Sharp. Sharp & al., 2 Leigh, 249. So the officer of a bank, in the habit of paying the party's checks, Coffey's case, 4 Rogers' Rec. 52. A witness may testify from having seen the party write, from having carried on a correspondence with him, or from an acquaintance gained from having seen handwriting acknowledged or proved to be his. Page v. Hemans, 14 Maine, 478.

(a) Eng. Com. L. Rep. xv. 515.

(b) Id. ii. 91. (e) Id. xxii. 371. (d) Id. iii. 147. (e) Id. xxii. 24. (f) Id. iii. 296.

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