was produced of a loose paper upon a file, which the witness said was also on a two shilling stamp, and it appeared that there was a book in which the acts of the corporation were kept, and where there was an entry more at large of the freeman's admission, and which was made when the freeman was originally admitted, but this was not on a stamp in the book, it was held by Noel, J. that the loose paper being the only effectual act, as having that which the law requires, viz. the proper stamp, must be looked upon as the proper and original act of the corporation, and that a copy of it was good evidence. R. v. Head, Peake Ev. 92 (n). Corporation books may be proved by examined copies; Brocas v. Mayor, &c. of London, I Str. 306; but if they do not relate to corporate acts the original must be produced. R. v. Gwyn, 1 Str. 401.

Proof of Public Registers.

Registers of baptisms, marriages, and deaths, may be proved by examined copies, or by production of the register itself. B. N. P. 247. See 52 Geo. III. c. 146. The copy need not be stamped. Id. s. 17. Viva voce proof of the contents of a register has been admitted without a copy; but it was observed by Mr. Justice Buller, that the propriety of such evidence may well be doubted, because it is not the best evidence the nature of the thing is capable of. 2 Evans, Poth. 139. In order to prove the register of a marriage, it is not necessary to call the attesting witnesses; but as the register affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling the minister, clerk, or attesting witnesses, if they were acquainted with the parties; or the bellringers may be called to prove that they rung the bells, and came immediately after the marriage, and were paid by the parties; or the handwriting of the parties may be proved; or persons may be called who were present at the wedding dinner, &c. Birt v. Barlow, Dougl. 162. To prove the handwriting of the parties in the register, it is not necessary to call the subscribing witness. Per Lord Mansfield, Dougl. 174. If a marriage is proved by a person who was present, it is not necessary to prove the registration, or license, or banns. Allison's case, R. and R., C. C. R. 109.

Proof of Ship's Register.

By stat. 6 Geo. IV. c, 110, s. 43, it is enacted, "that the collector and comptroller of his majesty's customs at any port or place, and the person or persons acting for them respectively, shall, upon every reasonable request by any person or persons whomsoever,

nation, any oath or affidavit taken or sworn by any owner or owners, proprietor or proprietors, (of the vessels mentioned in the act,) and also any register or entry into any book or books of registry required by this act to be made or kept, relative to any ship or vessel; and shall, upon every reasonable request by any person or persons whomsoever, permit him, her, or them, to take a copy or copies, or an extract or extracts thereof respectively; and that the copy or copies of any such oath or affidavit, register or entry, shall, upon being proved to be a true copy or copies thereof respectively, be allowed and received as evidence upon every trial at law, without the production of the original or originals, and without the testimony or attendance of any collector or comptroller, or other person or persons acting for them respectively, in all cases as fully, and to all intents and purposes, as such original or originals, if produced by any collector or collectors, comptroller or comptrollers, or other person or persons acting for them, could or might legally be admitted or received in evidence."

Proof of Terriers.

An old terrier or survey is not in general admissible in evidence without proof of its having come from the proper repository. 1 Stark. Ev. 170. So an old grant to an abbey, contained in a manuscript entitled "Secretum Abbatis," in the Bodleian library, was rejected, as not coming from the proper repository. Michell v. Rabbetts, cited 3 Taunt. 91. So an ancient grant to a priory, from the Cottonian manuscripts in the British Museum, was rejected, it not appearing that the possession of the grant was connected with any person having an interest in the estate. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. With regard to ecclesiastical terriers, the proper repository for them is the registry of the bishop, or of the archdeacon of the diocese, Atkins v. Hatton, 2 Anstr. 386, Potts v. Durant, 3 Anst. 195; or the church chest, Armstrong v. Hewitt, 4 Price, 218; and a terrier found in the registry of the dean and chapter of Lichfield has been admitted as against a prebendary of Lichfield, Miller v. Forster, 2 Anstr. 386 (n); but merely private custody is not sufficient. Potts v. Durant, 3 Anstr. 789. See also Atkins v. Drake, MCl. and Y. 213. On an issue to try the boundaries of two parishes, an old terrier or map of the limits, drawn in an inartificial manner, brought from a box of old papers relating to the parish, in the possession of the representatives of the rec tor, was rejected, it not being signed by any person bearing a public character or office in the parish. Earl v. Lewis, 4 Esp. 3.

Proof of Deeds and Writings.

Production of instrument under Subpana duces tecum.] A witness served with a subpoena duces tecum, must be ready to produce the writings in his possession, if ordered by the court. Amey v. Long, 9 East, 473; but if the production would have a tendency to subject him to a criminal charge, or to a penalty or forfeiture, the court will excuse the non-production. See Whitaker v. Izod, 2 Taunt. 115. So if he state that they are his title-deeds, no judge will ever compel him to produce them. Per Cur. Pickering v. Noyes, 1 B. and C. 263; and see R. v. Upper Boddington, 8 D. and R. 726." The solicitor to a commission of bankrupt is bound under this subpoena to produce the proceeding under the commission; Pearson v. Fletcher, 5 Esp. 91. Corson v. Dubois, Holt, 239. Cohen v. Templar, 2 Stark. 260. Hawkins v. Howard, R. and M. 64; but see Bateson v. Hartsink, 4 Esp. 43. Laing v. Barclay, 3 Stark. 42, contra; unless the production be prejudicial to the assignees. Per Gibbs, C. J., Corsen v. Dubois, Holt, 240. An attorney is not bound to produce a composition deed in which his client is interested, and the production of which he conceives may be prejudical to his client, in a suit between other parties. Harris v. Hill, 3 Stark. 140. Ditcher v. Kenrick, 1 C. and P. 161. A person producing papers under a spa. duc. tec. need not be sworn. Davis v. Dale, I M. and M. MSS.

Attesting witness must be called.] Wherever a deed or other instrument is subscribed by an attesting witness, such witness must be called to prove the execution; and his 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. Longworthy, 5 I. R. 366, ante, p. 26. A notice to quit, Doe v. Durnford, 2 M. and 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 blind, Wood v. Drury, 1 Ld. Raym. 734, 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, 253, as in Ireland, Hodnet v. Forman, 1 Stark. 90," or where he cannot be found after diligent inquiry, Cunliffe v. Sefton, 2 East, 183, evidence of the witness's handwriting is admissible. 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 residences of the obligor and obligee is sufficient, ibid.; so diligent inquiry at the witness's usual place of residence, and information there, and from the witness's father,

8 Eng. Com. Law Reps. 72.

16 Id. 348.3 Id. 86. P3 Id. 341. 414 Id.

that he had absconded to avoid his creditors. Crosby v. Percy, 1 Campb. 303, 1 Taunt, 365, S. C.; but see Pytt v. Griffiths, 6 B. Moore, 538, contra. So that a twelvemonth since, a commission of bankrupt issued against the witness, to which he had not appeared. Wardell v. Farmer, 2 Campb. 282. 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. So that the witness went abroad twenty years ago, and has never been heard of since. Per Ld. Ellenborough, Doe v. Johnson, 1 Phill. Ev. 455 (n); see ante p. 18. A witness, on being subpoenaed, said he would not attend, and the trial was twice put off in consequence of his absence; search was then made at 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. It was held that, under these circumstances, evidence of his handwriting was admissible. Burt. v. Walker, 4 B. and A. 697. So, it was held sufficient to show that the witness, some time before, had expressed an intention of leaving the country, that he had reason for so doing to avoid a criminal charge, and that his relations had not seen him since he expressed his intention of going. Kay v. Brookman, 3 C. and P. 555. In these cases it seems sufficient to prove the handwriting of the witness, without proving the handwriting of the party, unless with a view to establish the identity of the party; but slighter evidence of that fact would be sufficient. See Nelson v. Wittall, 1 B. and A. 19. Gough v. Cecil, MS. cited Selw. N. P. 516 (n). Indeed identity of name is sufficient evidence of the identity of the parties; Page v. Mann, 1 M. and M. 79. Kay v. Brookman, Id. 286, 3 C. and P. 555, S. C.;' even where the defendant has signed only by his mark. Mitchell v. Johnson, 1 M. and W. 176. 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 Campb. 437. See Doe v. Evans, 3 C. and P. 221.

Where the witness was incompetent at the time of the attestation, as where he was interested at that time, Swire v. Bell, 5 T. R. 371, it is the same in effect as if the instrument had never been attested; and it will be necessary to prove the handwriting of the party who has executed it. But 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 Campb. 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; Godfrey v. Norris, 1 Str. 34, Cunliffe v. Sefton, 2 East, 183; or by marriage with one of the parties. Buckley v. Smith, 2 Esp. 697. So, as it seems, where a

17 Eng. Com. Law Reps. 56. 6 Id. 569. * 14 Id. 446. 14 Id. 278.

man enters into partnership, and becomes interested in instruments which he has attested, by acquiring a share in the credits, and taking upon himseif the responsibilities of the firm, his handwriting may be proved. See Hovill v. Stephenson, 5 Bingh. 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. Hovill v. Stephenson, 5 Bingh. 493. 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 Campb. 412,) Fitzgerald v. Elsee, 2 Campb. 635, Lemon v. Dean, Id. 636 (n), Boxer v. Rabith, Gow, 175; or where the attesting witness subscribed his name without the knowledge or consent of the parties, McCraw v. Gentry, 3 Campb. 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.

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. See 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, proof of the handwriting of the witness that is dead is sufficient. Adam v. Kerr, 1 P. and B. 360.

Execution, how proved.] In proving 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, it will be sufficient. 1 Phill. Ev. 448. Thus, proof by the attesting witness that she was not present when the deed was executed, but that she was afterwards requested by one of the 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 partics, in which case sealing and delivery may be presumed. Ibid. It is not necessary for the attesting witness to prove that certain blanks which existed in the deed were filled up at the time of execution. 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, and he subsequently recognises the deed as valid, the filling up of the blank will not avoid it. Hudson v. Revett, 5 Bingh. 368; and see Hall v. Chandless, 4 Bingh. 123.4 Some proof of the identity of the party executing the instrument must be given; and there