attestation. See further, post, p. 142. The execution of powers by will on and since 1st Jan., 1838, has been much simplified by 1 Vict. c. 26, s. 10, post, p. 142.

Under the old law it was held that the 30 years were to be reckoned from the date of the will being executed. Doe d. Öldham, v. Wolley, 8 B. & C. 22. The fact that under sect. 24, a will, with reference to the estate comprised therein, now speaks from the death of the testator would not seem to alter this principle.

Interested attesting Witness.] Formerly if a will were attested by a person, who, or whose wife, or husband took any interest thereunder, the will was void because it could not be proved; this was remedied as to an interested witness himself, by stat. 25 Geo. 2, c. 6, s. 1, which made such witness competent to prove the will, but avoided the devise to him; sect. 2 made creditors competent witnesses, although the will charged the debts on the real estate. This act still applies to wills made before 1st Jan., 1838. As to the competency of the husband of a devisee, see Hatfield v. Thorp, 5 B. & A. 589.

By the Wills Act (1 Vict. c. 26), s. 14, if the attesting witness to a will be incompetent to prove it at the time of execution or afterwards, the will shall not be invalid on that account; and by sect. 15, if the attesting witness, or the wife or husband of the witness, be a beneficial devisee, &c., the devise shall be void, and the witness competent; and by sect. 16, in the case of a will charging real or personal estate with debts, a creditor, or the wife or husband of one, may attest the will, and prove its execution; and by sect. 17, the executor is admissible to prove the execution, or the validity or invalidity of a will. This act, by sects. 1, 34, applies to all wills made or re-executed on or after 1st Jan., 1838.

A devise to an attesting witness is void though there are three other attesting witnesses. Doe d. Taylor v. Mills, 1 M. & Rob. 288. Where a will attested by A. contains a devise to A. and is confirmed by a codicil not attested by A., the devise is good, for the codicil incorporates the will, and they form one instrument. Anderson v. Anderson, L. R., 13 Eq. 381. The marriage, after attestation, of the attesting witness to a devisee does not affect the devise. Thorpe v. Bestwick, 6 Q. B. D. 311.

The Act for making interested witnesses competent (6 & 7 Vict. c. 85), provides that it shall not affect the new Wills Act; but the Statute of Frauds is not referred to in it.

Proof by Probate.] The Probate Court Act (20 & 21 Vict. c. 77), after providing by sect. 61, that where a will affecting real estate is proved in solemn form, or is the subject of any contentious proceeding, the heir and persons interested in the real estate shall be cited, enacts by sect. 62, that "where probate of such will is granted after such proof in solemn form, or where the validity of the will is otherwise declared by the decree or order in such contentious cause or matter as aforesaid, the probate, decree, or order respectively shall enure for the benefit of all persons interested in the real estate affected by such will, and the probate copy of such will, or the letters of administration with such will annexed, or a copy thereof respectively, stamped with the seal of her Majesty's Court of Probate" (vide infra), "shall in all courts, and in all suits and proceedings affecting real estate of whatever tenure (save proceedings by way of appeal under this Act, or for the revocation of such probate or administration), be received as conclusive evidence of the validity and contents of such will, in like manner as a probate is received in evidence in matters relating to the personal estate;

Proof by Probate.-Execution of Powers.

141 and where probate is refused or revoked on the ground of the invalidity of the will, or the invalidity of the will is otherwise declared by decree or order under this Act, such decree or order shall enure for the benefit of the heir-at-law, or other persons against whose interest in real estate such will might operate, and such will shall not be received in evidence in any suit or proceeding in relation to real estate, save in any proceeding by way of appeal from such decrees or orders." Sect. 63 provides, "that the probate, decree, or order of the court shall not in any case affect the heir or any person in respect of his interest in real estate, unless such heir or person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party."

By sect. 64, in any action, "where, according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition, to give to the opposite party, ten days at least before the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence, as proof of the devise or other testamentary disposition, the probate of the said will, or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the Court of Probate ” (vide infra) ; and in every such case such probate or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition." By sect. 65, "In every case in which, in any such action or suit, the original will shall be produced and proved, it shall be lawful for the court or judge before whom such evidence shall be given, to direct by which of the parties the costs thereof shall be paid."

The jurisdiction of the Court of Probate is now transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is by sect. 34 assigned to the Probate, Divorce, and Admiralty Division. Probates are therefore now sealed with the seal of that Division.

If the party receiving the ten days' notice under the above section give the four days' counter-notice that he disputes the validity of the devise, the probate will not be admissible in evidence; but if he do not give the counter-notice, he may nevertheless at the trial dispute the validity of the will, for "sufficient evidence" here means only prima facie evidence. Barraclough v. Greenhough, L. R., 2 Q. B. 612, Ex. Ch. Semble, that the notice should be given to the solicitor of the opposite party. S. C. Where the notice has not been given under the act the judge may adjourn the cause to allow of the notice being given or to allow proof of the will per testes; see Hilliard v. Eiffe, L. R., 7 H. L. 39, 49, per Ld. Cairns, C.

Proof of Execution of Powers.

As a general rule, all the circumstances required by the creator of a power, however otherwise unimportant, must be observed, and cannot be satisfied but by a strict and literal performance. Per Ld. Ellenborough, C. J., Hawkins v. Kemp, 3 East, 440. And when the power directs

attestation and other formalities the attestation must notice the compliance with the formalities. Thus where it was to be executed "by any deed or writing under the hands and seals of the parties, to be by them duly executed in the presence of, and attested by two or more witnesses;" it was held that as the attestation stated only a sealing and delivery, and omitted the signing, the power was not duly executed; Doe d. Mansfield v. Peach, 2 M. & S. 576; and a subsequent correct attestation, indorsed upon the instrument after the death of one of the parties, would not remedy the defect, S. C.; Wright v. Wakeford, 2 Taunt. 214. So, if the power is to be executed by an appointment to be signed and published in the presence of, and attested by two witnesses, and the attestation omits to mention the publication. Moodie v. Reid, 7 Taunt. 355. But where the attestation mentioned "delivery," this has been held equivalent to publication. Ward v. Swift, 1 Cr. & M. 171.

The cases above referred to assume, however, rather than expressly decide, that, if the attestation is deficient, the deficiency cannot be supplied by evidence aliundé that the formalities were all gone through. But this is directly contrary to the law, in the analogous case of formalities required by statute; and perhaps after the language of Lord Lyndhurst, in Burdett v. Doe d. Spilsbury, 6 M. & Gr. 461, and of Ld. Campbell, at pp. 468 et seq., it will be held, if the question should arise, that the attestation clause is not conclusive. Indeed, Ld. Campbell, in Newton v. Ricketts, 9 H. L. C. 262; 31 L. J. Ch. 247, says that the ratio decidendi, in Burdett v. Doe d. Spilsbury, was that such extrinsic evidence might be given. This was certainly not so. But still this expression of opinion gives to the view under discussion the full weight of Lord Campbell's authority. On the other hand, we have, in Burdett v. Doe d. Spilsbury, Lord Brougham's express refusal to overrule the cases which lay down the very strict rule requiring all the formalities to be noticed in the attestation. See 6 M. & Gr. 465.

When the instrument creating the power does not require attestation, an informal or imperfect one will not invalidate. Sugd. Pow. 8th ed. 235, 247. The defect of omitting to state in the attestation the signing of the instrument was cured by stat. 54 Geo. 3, c. 168, with regard to powers theretofore executed; but the act was only retrospective, and has now been repealed by the Stat. Law Revision Act, 1873. Leases defectively executed under powers may now be confirmed by acceptance of rent under the circumstances provided for in statutes 12 & 13 Vict. c. 26, and 13 & 14 Vict. 17.

The Wills Act, 1 Vict. c. 26, abrogated the necessity of following the formalities prescribed by the donor of a power to be exercised by a will or appointment in the nature of a will; for it provides (sect. 10) that "no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner herein before required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity." Hence the execution of wills in virtue of powers must hereafter conform to the regulations pointed out in the 9th section of the act, ante, p. 136. A will executed with only the formalities prescribed in this section will not satisfy the condition of a power to be exercised "by any instrument in writing to be by her signed sealed and delivered in the presence of and attested by two or more credible witnesses." Taylor v. Meads, 4 D.

Proof of Awards.-Oral Proof by Witnesses.

143

J. & S. 597; 34 L. J., Ch. 203. Such a power is, however, satisfied by a will expressed to be " signed, sealed, acknowledged, and declared "in the presence of the attesting witnesses. Smith v. Adkins, L. R. 14 Eq. 402.

The above section only applies to powers to be executed by will; but by a later Act, 22 & 23 Vict. c. 35, a like remedy has been provided for the relief of donees of powers to be exercised otherwise than by will; for by sect. 12, a deed executed after August 13, 1859, in the presence of and attested by two or more witnesses in the ordinary manner, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or instrument in writing not testamentary, although some other execution, attestation, or solemnity may have been prescribed by the donor; provided that this shall not dispense with any requirement prescribed by him other than the manner of execution or attestation, nor prevent the donee from executing the power in the manner prescribed by the donor.

There is, however, a notable difference between this and the act relating to wills under powers, viz., that a will under a power must conform to the provisions of 1 Vict. c. 26, whereas an appointment made since 22 & 23 Vict. c. 35, may be executed in the manner prescribed either by that act or by the donor of the power. The last Act is retrospective so far as regards the instrument creating the power.

Proof of Awards.

As to proof of awards generally, vide post, Action on Awards.

As to proof of awards made by commissioners under Inclosure Acts, &c., it is provided by the general Act, 41 Geo. 3, c. 109, s. 35, and also by 3 & 4 Will. 4, c. 87, ss. 2 and 4, that the original award, or a copy of the enrolment signed by the proper officer of the court or the clerk of the peace or his deputy, and purporting to be a true copy, shall be admitted in all courts as legal evidence. In any collateral proceeding in which it may be necessary to give it in evidence, it will be presumed that the award has been regularly made, and that the commissioners were duly qualified, and had given the proper notices, &c. but this presumption may be rebutted; R. v. Haslingfield, 2 M. & S. 559; Doe d. Nanney v. Gore, 2 M. & W. 320; acc. Williams v. Eyton, 2 H. & N. 771; 27 L. J., Ex. 176; 4 H. & N. 357; 28 L. J., Ex. 146, Ex. Ch., and excess of authority may be shown; Wingfield v. Tharp, 10 B. & C. 785. Awards made under 6 & 7 Will. 4, c. 115, or 3 & 4 Vict. c. 31, are, by sect. 1 of the last act, made conclusive evidence of a compliance with all the provisions of those acts, and of all necessary consents, and no other evidence of title under the inclosure shall be requisite.

ORAL PROOF BY WITNESSES.

THE J. Act, 1875, s. 20, provides that "nothing in this act or in the first schedule hereto, or in any rules of court to be made under this act, save as far as relates to the power of the court for special reasons to allow depositions or affidavits to be read, shall affect the mode of giving evidence by the oral examination of witnesses in trials by jury or the rules of evidence, or the law relating to jurymen or juries." By Rules, 1883,

O. xxxvii. r. 1, "In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court," but the court or a judge may in certain cases allow depositions or affidavits to be used, vide post, p. 175, et seq.

Attendance of Witnesses.

Subpænd, service of.-Expenses.] The process to compel the attendance of witnesses is the writ of subpoena ad testificandum. Edgell v. Curling, 7 M. & Gr. 958. This writ will now, by stat. 17 & 18 Vict. c. 34, s. 1, issue out of the superior courts into any part of the United Kingdom on the special order of the court or judge. It is, however, provided by sects. 5 and 6, that this provision is not to affect the power of the court to issue commissions to examine, or to affect the admissibility of evidence heretofore admissible by reason of a witness being beyond the jurisdiction:-in other words, Scotland and Ireland are still, for these last-mentioned purposes, to be regarded as out of the jurisdiction of the superior courts of England. Either the writ, or a copy of it, must be personally served on the witness; and where a copy only is delivered, the original must be shown whether the witness require it or not; otherwise he cannot be attached. Wadsworth v. Marshall, 1 Cr. & M. 87. It must be served so as to give witnesses “reasonable time to put their own affairs in such order that their attendance may be with as little prejudice to themselves as possible.” Hammond v. Stewart, 1 Stra. 510. But urgent domestic business is no excuse for disobedience. Goff v. Mills, 2 D. & L. 23. Notice to a witness in London at two in the afternoon, requiring him to attend the sittings at Westminster in the course of the same evening, is too short. Ibid. But where a person is present in or attending near the court, service on the day of trial may be sufficient under the circumstances. Maunsell v. Ainsworth, 8 Dowl. 869. Whether the service be sufficient is for the judge not the jury. Barber v. Wood, 2 M. & Rob. 172. If the cause be made a remanet, the subpoena must be re-sealed and re-served. Sydenham v. Rand, 3 Doug. 429. Though the writ only requires attendance on the commission day, the witness must attend for the whole assizes till the cause comes on. Scholes v. Hilton, 10 M. & W. 15.

A witness in a civil suit is not bound to attend unless the reasonable expenses of going to and returning from the place of trial, and of his stay there, are tendered to him at the time of serving the subpond; nor, if he appears, is he bound to give evidence before such expenses are paid or tendered. Chapman v. Paynton, 13 East, 16, n. The reasonableness depends on the situation and circumstances of the witness; Dixon v. Lee, 1 Ĉ. M. & R. 645; Vice v. Anson, Ly., M. & M. 96; and where a witness has already been paid by one side, this may be taken into account when he is supoenaed by the other side. Betteley v. M'Leod, 3 N. C. 405. Within the bills of mortality the usual tender is one shilling in a town cause. Tidd, Prac. 9th ed. 806. Where a witness has come to and stayed at the assizes on subpoena without requiring payment, he may refuse to appear till payment of the expense of returning. Newton v. Harland, 1 M. & Gr. 956. But no tender of compensation for loss of time is necessary, though it is the practice to allow it in costs in some cases. Collins v. Godefroy, 1 B. & Ad. 950. And a witness subpoenaed to give evidence on a matter of personal opinion or professional skill, and not to depose to the facts of the case, may insist on being paid compensation for loss of time before he is examined. Webb v. Page, 1 Car. & K. 23, cor. Maule, B.