Private Deeds and Writings.

125

ought nevertheless to be called in order to learn from him anything material that passed at the execution. Crank v. Frith, 2 M. & Rob. 262, per Lord Abinger, C. B. Accord, Rees v. Williams, 1 De G. & Sm. 314. In Pedler v. Paige, 1 M. & Rob. 258, Park, J., 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 handwriting, though there be another attesting witness who might have been called, which is not the present practice; vide post, p. 126. 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 interested in his testimony must, in such a case, get a judge's order to examine him out of

court.

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, ante, p. 124. 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. 364; Accord. Falmouth, El. of, v. Roberts, 9 M. & W. 469. So, inquiry after the witness at the Admiralty, where it appeared by the last report that he was serving on board a ship in the navy; Parker v. Hoskins, 2 Taunt. 223; or proof that the witness went abroad 20 years ago, and has not been heard of since. Doe d. Johnson v. Johnson, 1 Phill. Ev. 474, n. A witness who was defendant's clerk, being subpoenaed, said he would not attend, and the trial was twice put off in conquence 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; Spooner v. Payne, ante, p. 124. 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 an attorney's clerk was witness, and the attorney could give no account of him; although afterwards at the trial he recollected where he might perhaps be heard of. Miller v. Miller, 2 N. C. 76.

It

The sufficiency of the inquiry is for the determination of the judge, who will found his opinion on the nature and circumstances of each case. 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, C. B., T. T. 24 Geo. 3; M. S., cited, Selw. N. P., 13th ed. 494.

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 gives evidence that the document was not duly executed; Bowman v. Hodgson, L. R., 1 P. & M. 362; 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 person executing it, or who was present at the time of execution; or by the admission of the party.

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 absent 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, proof of the handwriting of either seems to be sufficient; Adam v. Kerr, 1 B. & P. 360.

66

It will not be assumed that a name subscribed to an instrument is necessarily 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 d. Bank of England v. Chambers, 4 Ad. & E. 410; and where the seal of a company was affixed to a deed, and two directors signed their names in the following form:"Seal of the said Company affixed at the board meeting this [date], in the presence of O., Chairman, C., Director. (Countersigned) D., Sec. pro tem."-It was held that the signatures of O. and C. formed part of the execution of the deed, and that they were not attesting witnesses; Deffell v. White, L. R., 2 C. P. 144; following Shears v. Jacob, L. R., 1 C. P. 513; see also Dunn v. Dunn, L. R., 1 P. & M. 277. The attorney who attested the petition of an insolvent under 5 & 6 Vict. c. 116, was held not such a witness as need be called to prove it. Bailey v. Bidwell, 13 M. & W. 73. But this decision has been considered to proceed on the ground that the petition had been acted upon by the court below and authenticated by its seal, and was put in only to prove the fact of a petition presented; and where the schedule of the insolvent is used to show an admission by him, the attorney who attested the insolvent's signature must be called. Streeter v. Bartlett, 5 C. B. 562. In Bailey v. Bidwell, supra, it was considered that where a mere rule of practice of the court required an attesting witness, he need not be called. Streeter v. Bartlett, supra, is contra on this point. It will therefore still be a question whether, in such a case, the C. L. P. Act, 1854, s. 26 (ante, p. 124), dispenses with calling the attesting witness. Noncompliance with the rule may make the instrument irregular without making it "invalid." The witness must still be called if attestation is requisite to its "validity."

Where an attested agreement was indorsed with subsequent variations, and the plaintiff sued on it as altered, it was held enough to prove the execution of the indorsement, for it formed a new agreement incorporating the old one and dispensing with the necessity of any other proof of it. Fishmongers' Co. v. Dimsdale, 6 C. B. 896; 12 C. B. 557; 22 L. J., C. P. 44 ; Ex. Ch.

Execution, how proved.] Where attestation is necessary to the validity of a writing, the form and nature of it must depend on the provision of the law or other authority which has made it necessary. Unless it be otherwise provided, in attesting a deed, it is not 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 signature is unnecessary, it will be sufficient. Thus proof by the 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 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; and sealing and delivery may be presumed. Ibid. It is not necessary for

Identity of Person Signing.

127

the attesting witness to be able to say whether 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 delivery. England v. Roper, 1 Stark. 304. See Doe d. Tatum v. Catomore, 16 Q. B. 745; 20 L. J., Q. B. 364. Where a bond was executed by the defendant, and attested by a witness in one room and was then taken in 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 transaction. Parke v. Mears, 2 B. & P. 217; and see Anon., Arch. Pl. & Ev., 1st ed. 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. S. Martin's, Leicester, 2 Ad. & E. 213. As to the priority of two deeds executed on the same day, vide ante, p. 124. The grantee under a deed is not competent to attest the execution thereof by the grantor. Seal v. Claridge, 7 Q. B. D. 517 C. A.

Identity of person signing, &c.] Some evidence of the identity of the party to the instrument must be given, though very slight evidence will be sufficient. Where the proof of the acceptance of a bill was simply the handwriting of the attesting witness on an acceptance, some evidence of the identity of the defendant and the person whose acceptance is thus proved, was held necessary; Whitelocke v. Musgrove, 1 Cr. & M. 511; and it has been thought not sufficient merely to prove that a person calling himself by the same name (which was common in the neighbourhood where the witness saw the signature put), accepted the bill; Jones v. Jones, 9 M. & W. 75. 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 non-suited. Parkins v. Hawkshaw, 2 Stark. 239; Middleton v. Sandford, 4 Camp. 34. But where the attestation states the residence of the party, proof that the party sued resided there would be prima facie evidence of identity. See Whitelocke v. Musgrove, and Jones v. Jones, supra; per cur. Thus where the acceptor was described as "C. B. Crawford, East India House," proof that the signature was that of a person of the same name, a clerk of the East India House, was held to be primâ facie evidence of identity; Greenshields v. Crawford, 9 M. & W. 314; and in Roden v. Ryde, and Sewell v. Evans, 4 Q. B. 626, it was held that, unless the name is so common as to neutralize the inference of identity, or other facts appear to raise a doubt, identity of name is prima facie enough to charge the defendant. Accord. Hamber

v. Roberts, 7 C. B. 861. See further, Birt v. Barlow, and Hubbard v. Lees, cited, ante, p. 118. That the defendant had spoken of the contents of the deed is evidence of identity. Doe d. Wheeldon v. Paul, 3 C. & P. 613. Where a note was made payable to J. H. and indorsed by a person so named, and there were two persons, father and son, named J. H., it will be presumed that the son was the payee, if the son indorsed it; Stebbing v. Spicer, 8 C. B. 827. In an action by an indorsee against the acceptor of a bill, whereof S. was the payee, the plaintiff proved that a person calling himself S. came to the plaintiff's residence with the bill in question and a letter of introduction, proved to be genuine, which was expressed to be given to a person introduced to the writer as S., and also another bill drawn by the writer of that letter. The bearer of these documents, after remaining some days at the plaintiff's residence, indorsed to him the bill in question. This was

held to be primâ facie evidence of the identity of this person with S.; Bulkeley v. Butler, 2 B. & C. 434.

Sealing and Delivery.] 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. 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 were 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, 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, where the defendant delivers to the plaintiff a deed signed and sealed and expressed to be signed, sealed, and delivered, it will be taken as against the defendant that it has been also delivered. Xenos v. Wickham, L. R., 2 H. L. 296. 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 void 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; Hibblewhite v. M'Morine, 6 M. & W. 200; Tayler v. Gt. Indian Peninsular Ry. Co., 4 De G. & J. 559; 28 L. J., Ch. 709; and Texira v. Evans, 1 Anstr. 228, contra, 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 Cr. & M. 721. A deed was executed by a son of the defendant T. F., thus: "J.W. F. for T. F.;" and the defendant, when subsequently shown the deed so executed, said his son had authority to execute it for him, and that he adopted his son's act; this was held to be a re-delivery by the defendant. Tupper v. Foulkes, 9 C. B., N. S. 797; 30 L. J., C. P. 214. As to a deed being binding on an agent who executed it as such, as well as on his principal, see Young v. Schuler, 11 Q. B. D. 651, C. A., cited ante, p. 17.

When a subscribing witness is dead, proof of the handwriting of such witnesss is evidence of everything on the face of the paper which imports to be sealed by the party. Per Buller, J., Adam v. Kerr, 1 B. & P. 361. And where the "signing and sealing" are alone noticed in the attestation, vet this is evidence of the delivery also. Semb. Hall v. Bainbridge, 12 Q. B. 699. Where the party named has acted under the deed, it will be presumed as against him to have been executed by him, although the seal has no signature annexed, nor any attestation; Cherry v. Heming, 4 Exch. 631; for signature is not necessary to the execution of a deed, unless it be under a power which requires it; and it also seems that neither wax nor wafer are necessary, and that if a stamped impression be made on the paper in place of a seal as commonly used, it is a sufficient sealing, even under a power which requires a seal. Sprange v. Barnard, 2 Bro. C. C. 585. And it has been held that "to constitute a sealing neither wax nor wafer, nor a piece of paper, nor even an impression is necessary." In re Sandilands, L. R. 6 C. P. 411. See also Sugden on Powers, 8th ed. 232.

In the delivery of a deed no particular form is necessary. Throwing it 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. 505, 4th ed. In some instances a general agent has been presumed to have such authority. Doe d. Macleod v. E. London Waterworks, M. & D. 149. See Tupper v. Foulkes, ante, p. 128. But, in general, the agent must be authorised by deed. Berkeley v. Hardy, 8 D. & Ry. 102; Hibblewhite v. M'Morine, ante, p. 128. A deed executed by a marksman may be proved by a person who has seen the party make his mark, and can speak as to its peculiarities. George v. Surrey, M. & M. 516.

If the deed after sealing be tendered to the covenantee, and he expressly rejects it, and refuses to take any benefit from it, the execution is incomplete. This defence was formerly admissible in evidence under non est factum; Whelpdale's case, 5 Rep. 119 a; Xenos v. Wickham, 13 C. B., N. S. 435; 33 L. J., C. P. 13; Ex. Ch., reversed on another ground; L. R., 2 H. L. 296. It must now, however, be pleaded specially; Rules, 1883, O. xix. r. 15, ante, p. 72.

Signature, whether necessary. Indenture.] Signature forms no part of the execution of a deed, but as the Stat. of Frauds, by ss. 1, 3, 4, and 17, requires interests in land to be created, surrendered, or assigned by instrument in writing, and certain contracts to be evidenced by writing, signed, the question has arisen whether an unsigned deed satisfies this statute or not. The better opinion now is that the statute operates on oral contracts only, and does not affect deeds; Shep. Touchst. by Preston, c. 4, p. 56, (24); Aveline v. Whisson, 4 M. & Gr. 801; Cherry v. Heming, 4 Exch. 631, and that therefore an unsigned deed will be good notwithstanding the statute. The opinion of Blackstone was the other way. 2 Bl. Com. 307.

By stat. 8 & 9 Vict. c. 106, s. 5, a deed executed after the 1st October, 1845, "purporting to be an indenture, shall have the effect of an indenture, although not actually indented."

Per

Escrow.] A condition previously expressed, though not introduced into the act of delivery, is sufficient to make it a delivery as an escrow. Abbott, C. J., Johnson v. Baker, 4 B. & A. 441; and see Murray v. Stair, El. of, 2 B. & C. 82. Delivery as an escrow requires no express words, but may be inferred from circumstances. Bowker v. Burdekin, 11 M. & W. 128. 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; Doe d. Garnons v. Knight, 5 B. & C. 671; Xenos v. Wickham, L. R., 2 H. L. 296. The delivery of a deed to a third person for the use of the party in whose favour the deed is executed, has the same effect. Doe d. Garnons v. Knight, supra. But delivery by the grantor of a grant executed by him, to the solicitor of the grantee, may be shown to have been conditional only. Watkins v. Nash, L. R. 20 Eq. 262. 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 from the date in the absence of evidence to show that 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 prima facie evidence against A. of the performance of the condition. Hare v. Horton, 5 B. & Ad. 715. And delivery to a third person is not essential to a delivery as an escrow. Gudgen v. Besset, 6 E. & B. 986. Where the delivery as an escrow is proved

VOL. I.

K