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Jackson v. Laroway.

structive possession, it was not until the plaintiff's claim under the will had been abandoned, and a claim set up to be deduced from a different source. The deed, when presented, appeared as a naked parchment, without any collateral support, unless it be the endorsements I have mentioned.

No authority authorizes the admisssion of such a writing. There are several loose dicta to be found, that an ancient deed proves itself; and these dicta are silent as to the circumstance that possession must have accompanied it. But, whenever we can discover the facts in the cause, in which these sayings arose, we perceive that possession was an in gredient in the case. There is no case which lays down. the rule, in positive terms, that an ancient deed is admissible, without proof, and without possession having gone with it; but there are several cases which directly state the rule of evidence to be, that a deed is not admissible, as an ancient deed, without possession, and without proof of its execution. It is stated in Gilb. (p. 89,) to have been ruled, a century ago, that if possession has not gone along with an ancient deed, the presumption in its favor fails, if they give no account of its execution. This rule is more fully and explicitly laid down by Peake, (72, 73.) He observes, "that a deed of thirty years' standing, requires no further proof of its execution than the bare production, provided the possession has been according to the provisions in the deed; but as this rule is founded on presumption, it does not apply to cases where there are circumstances to raise a contrary presumption, as if the possession had not been according to the deed,

or it appears to have been razed," &c. "In all [*291]. these cases," he adds, "it will be incumbent to give the ordinary evidence of the execution of the deed."

This rule regarding possession, as supplying proof, has been of very ancient standing, and has received a pretty uniform sanction.

In the treatise by the name of Fleta, this doctrine is laid down in the chapter on the proof of deeds, "that if no witnesses are produced, who saw the execution of the charter, VOL. III.

47

Jackson v. Laroway.

yet the grant will prevail, if homage was taken, and there hath been continual seisen." (Fleta, lib, 6, c. 34.) Lord Coke says, in respect to the same subject, that if all the witnesses to a charter of feoffment be dead, then violent presumption, which stands for proof, is continual and quiet possession. (1 Inst. 6, b.) In the case of Isack v. Clarke, (1 Roll. Rep. 132,) the court observed, that if, at the assises, a deed of feoffment be given in evidence of above 40 years old, (which made it an ancient deed,) and there be no proof of livery; yet if possession hath been held all the time according to the deed, this is good evidence to the jury. Again, in the case of James v. Trollop, (Skinner, 239; 2 Mod. 323,) it was advanced as law, by Holt, then at the bar, that when a deed before the time of memory (which was then 60 years, or the time taken in a writ of right) is supported by usage after, such a deed is pleadable and good; and the Ch. J. approved of this distinction. The last case I shall mention to this effect is that of Forbes v. Wale; (1 Black. Rep. 532,) there, an old bond of 32 years' standing, was offered in evidence before Lord Mansfield, without any proof of its execution. It was objected that it could not be read until proved, there having been no payment, or any other mark of authenticity, and that if the length of the date was alone sufficient to establish it, a knave had nothing to do but forge a bond, with a very ancient date. The judge allowed the distinction, and directed the bond to be proved. It [*292] must be admitted that an ancient deed *brought forward to disturb inheritances and challenge title, has no better claims to indulgence than an ancient bond.

These authorities go strongly to the point, that an ancient deed, standing naked and unassisted, will be of no avail, but that if it be supported by seisen, possession, or usage, it may be received.

The only doubt that could arise is, whether the endorsements on the will be not giving some account of its execution, according to the expression in Gilbert. But after the current of authorities which go to ascertain what is required

Jackson v. Laroway.

to supply the proof by witnesses, such a loose expression cannot be understood to mean anything different from proof arising from possession according to the deed, or some other proof strictly legal. The proof in Dutchess county, such as it was, was completely coram non judice, as far as it concerns the subject matter now in controversy. Indeed, it does not appear that the proof in Dutchess was authorized in any case, or for any purpose whatsoever. It was even there a nullity, if I understand the statute by virtue of which it was said to be taken. But admitting such proof was equivalent to a probate of a will, a regular probate could not have been admitted. It never has been admitted, unless a copy, where the original will was proved to have been lost; nor even then, unless accompanied with other circumstantial proof, although the will had grown to be ancient. (1 Ld. Raym, 731, 732.)

I am of opinion, that the admission of the will was properly ruled.

LEWIS, Ch. J. not having heard the argument, gave no opinion.

New trial granted.(a)(b)

(a) [Old_note.] See Jackson, ex dem. Burhans v. Blanshan, (3 Johns. Rep. 292.) Peake's Ev. 3d ed. 110, 112. 5 Term Rep. 259.

(b) Messrs. Cowen & Hill have made a large collection of cases upon the evidence of ancient deeds. (Notes to 1 Phill. Ev. p. 1310, et seq., note 903.) In reference to the principal case, they observe, "A full corresponding possession is not the only corroboration which will allow the instrument to be read without proof of execution, though there are several dicta which look that way. (See Jackson, ex dem. Burhans v. Blanshan, 3 John. Rep. 292, 297, 8, per Kent, C. J., who, iu delivering the prevailing opinion, reiterated what was said by him, dissenting, in Jackson, ex dem. Lewis v. Laroway, 3 John. Cas. 289, et seq. See also per Savage, C. J., in Jackson, ex dem· Bradt v. Brooks, 8 Wend. 426, 431; Middleton v. Mass, 2 Nott & M'Cord, 55, per Johnson, J.; Waldron v. Tuttle, 4 N. H. Rep. 377; M'Gennis v. Alli. son, 10 Ser. & Raw. 199; Arnold v. Gorr, 1 Raw. 223; Healy v. Moul, 5 Ser. & Rawle, 181.) Our author, (Mr. Phillips, 1 Ev. p. 477,) seems to have laid down the rule in the true spirit of the English adjudications; and it obviously admits of this alternative, viz., that if possession has gone along with the deed, so as to furnish a presumption of its authenticity from that source alone, other circumstances may be resorted to. In Carhampton's lessee v.

Jackson v. Laroway.

Carhampton, (1 Irish T. R. 567,) the plaintiff produced a deed dated 14th of January, 1735, purporting to have been made on the marriage of the late Lord Carhampton with the plaintiff; and proved that possession had accompanied it 52 years, and until the death of the late lord; he also produced a clerk from the registry office, who proved that he found in the registry office the memorial of a deed agreeing in parties, witnesses, description, &c. &c., with the deed produced; held, that the memorial might be read, and also the deed, as an ancient deed, leaving the question of authenticity to the jury, A reasonable presumption of the authenticity of the instrument,' said Carlton, C. J., delivering the opinion in this case, was sufficient to admit it to be read.' (Id p. 577.) The permitting it to be read, however, does not decide, on the final influence of the evidence, as to its reality; that is for the jury. (Id. 577.) Such unquestionably is the well settled doctrine in New York. In Jackson, ex dem. Lewis v. Laroway, (3 John. Cas. 283,) the point was fairly and fully considered, and Radcliff, J., who delivered the prevailing opinion, laid down the general rule to be, that a deed appearing to be of the age of thirty years, may be given in evidence without proof of its execution, if the possession be shown to have accompanied it; or, where no possession has accompanied it, if such account be given of the deed, as may be reasonably expected under all the circumstances of the case, and as will afford the presumption that it is genuine. This rule,' he adds, 'is founded on the necessity of admitting other proof, as a substitute for the production of witnesses, who cannot be supposed any longer to exist. A correspondent possession is always high evidence in support of such a deed; but where no such possession appears, other circumstances are admitted to account for it, and raise a legal presumption in its favor.' (Id. 286, 7., This case has never been overruled, but, on the contrary has received the sanction of several subsequent adjudications (Hewlett v. Cock, 7 Wend. 371. Jackson, ex dem. Hunt v. Luquere, 5 Cowen's Rep. 221, 225, 6, 7, 8. Jackson, ex dem. Wilkins v. Lamb, 7 id. 431. Jackson, ex dem. Bowman v. Christman, 4 Wend. 277.) It is the doctrine in South Carolina also; (Robinson v. Craig, 1 Hill's Rep. 389, 391, 2;) and Indiana; (semble, Henthorn v. Doe, 1 Blackf. Rep. 156, 162, and note (3) at p. 165) And it has been both recognized and acted upon by the supreme court of the United States. (Barr v. Gratz, 4 Wheat. Kep. 213. Winn v. Patterson, 9 Peters' Rep, 674, 5, per Story, J. See Coulson v. Walton, id. 62, 72; Clarke's lessee v. Courtney, 5 id 344.) Proof of such circumstances as could not well have happened, without the existence of the deed, affords a presumption that the deed is fair. (Thompson v. Bullock, 1 Bay's Rep. 364.) Indeed, almost any evidence intrinsically unobjectionable, and tending to raise a presumption of the genuineness of the instrument, is admissible. The sufficiency of it will depend so much upou the nature of each particular case, that no general rule can be laid down with regard to it." (See also Parris v. Eubanks, 1 Speers, 183; Crane v. Marshall, 4 Shepley, 27; 1 Greenleaf Ev. ed. 1842, § 144, and note 1; 3 Starkie Ev. ed. 1842, p. 1267, 1268; id. 907; 1 id. 66, et seq., 383, et seq.)

Livingston v. Hastie.

*LIVINGSTON against HASTIE & PATRICK. [*293]

Insurance on goods from New York to New Orleans, and at and from thence to New York. On the homeward voyage, the vessel and cargo were captured, and the insured received information of the capture on the 30th December, and abandoned to the insurers on the 21st January, though the property was in fact released and in safety on the 15th January, but unknown to the insured. The abandonment was held valid; and the property having arrived at the port of New York, the insured tendered it to the insurers, who refused to accept it, and it was put in store, and sixty days after, was sold by the insured for the benefit of the insurers; this was held not to be a waiver of the abandonment.

THIS was an action on an open policy of insurance on goods laden on board the scow Frederick, at and from New York to New Orleans, and at and from thence to New York. The vessel sailed from New Orleans, and during her homeward voyage, on the 14th November, 1799, was captured by a British cruiser and carried into New Providence. The plaintiff received information of the capture on the 20th December, and on the 30th of December the plaintiff received information from his agent at New Providence, that no attempt would be made against the plaintiff's property in the vessel. On the 20th January, 1800, the plaintiff received information that the vessel, which also belonged to the plaintiff, was libelled, and that the trial would probably take place the 27th December, 1799; and on the 21st January, the plaintiff made an abandonment to the defendants. The vessel and cargo were liberated on the 15th January, and arrived in safety, in New York, the 15th February, 1800. The captors appealed from the decision of the vice-admiralty court at New Providence.

On the arrival of the vessel and cargo in New York, the plaintiff tendered the property which had been insured, and abandoned to the defendants, who refused to accept it; and made no offer to pay for the costs and expenses attending it, in consequence of the capture. The plaintiff, on the 15th April, 1800, sold the property for the benefit of the insurers,

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