ecuted in the East Indies, where the deeds are proved without calling the witness. (a)

Where an attesting witness to a deed, on being called to prove its execution, denies having seen it executed, it may be proved by the evidence of the handwriting of the party. (b)

Where a subscribing witness is dead, it will be sufficient to prove his handwriting, without proof of the handwriting or identity of the parties, (c) even although he signed only by his mark; (d) and the rule will be the same, although the witness be abroad. (e)

The execution of a power of attorney executed abroad, can only be verified in a court of law by the affidavit of the subscribing witness; the certificate of a notary public, therefore, and the attestation of the Vice-Consul of the place to the notary's handwriting, which was also sworn to, is not sufficient proof of the due execution of the instrument. (ƒ)

A lease for a year is useless in the conveyance of freehold property in many of the colonies. Thus, in Jamaica, Antigua, St. Vincent, Upper Canada, and New Brunswick, various acts of the local legislature have enacted that deeds duly registered, whether executed there or elsewhere, shall have the operation of conveyances, without livery of seisin, a lease for a year, or any other ceremony. And the same law prevails in Dominica, if the deed be made in the island;

(u) 3 Prest. Abs. 73, 74; Peake. Ev. 66.

(b) Boxer v. Rabeth, Gow. N. P. C.

175.

(c) Page v. Mann, 1 Moo. & Mal. 79; but see Nelson v. Whittal, 1 B. & A. 19; 7 T. R. 266 n.

(d) Mitchell v. Johnson, 1 Moo. &

Mal. 176.

(e) Kay v. Brookman, 1 Moo. & Mal. 286, S. C. 3 C. & P. 555; and see Doe d. Wheeldon v. Paul, 3 C. & P. 613.

(f) Ex parte Church, 1 Dow. & Ry. 324; but see Garvey v. Hibbert, 1 Jac. & W. 180.

but in the other colonies, where the English laws are administered, a lease for a year seems to be still necessary.

In Ireland, the recital of a lease for a year in the deed of release, is sufficient evidence of the lease, and therefore no lease for a year is prepared; (a) but the recital must be sufficient. Thus, where the deed of release merely contained the words, "in his (the releasee's) actual possession, being by virtue of a lease made pursuant to the statute," this was held to be an insufficient recital of the lease within the 9 Geo. II. c. 5. s. 16. (b)

2. Wills and Letters of Administration.-The ecclesiastical courts have exclusive authority in deciding on the validity of wills of personalty, and in granting letters of administration; (c) and their sentences upon these matters are conclusive evidence of the right thereby determined; but they will not strictly be evidence of any collateral matter which may be collected or inferred from the sentence. (d) Therefore, letters of administration which have been granted to a person as administrator of the effects of A. B., deceased, are not proof of A. B.'s death, (e) although it seems probates are considered in practice as evidence of the facts they state. (f)

A probate unrepealed is conclusive evidence in civil cases, of the validity of a will; (g) and is the only legitimate evidence of personal property being vested

in an executor, or of the appointment of executor, the original will not being admissible for that purpose; (a) and the original will cannot be read in evidence upon the mere production of it by the officer of the Ecclesiastical Court, without an indorsement upon it, for the purpose of authenticating it. (b) But after notice is given to produce the probate, and is not attended to, then the original will of personalty so authenticated will be evidence. (c) The probate of a will devising real property is not evidence of the contents of a will as to such property, (d) even when the original will is lost, (except, indeed, as a mere copy,) the Spiritual Court having no power to authenticate such a devise, as far as it relates to land. (e)

The best proof of a will of real estate, is the original will itself; and this cannot be dispensed with, if it is to be had. (f) If it relate only to personal estates, the probate will be evidence. (g) If the original will has been lost, the register-book or ledger-book in which the will is set out at length, would be good evidence of its contents. (h)

An exemplification of a will under the great seal, is not evidence for a jury in an ejectment; (2) but where a will remains in Chancery by order of the

court, a copy may be given in evidence, for then it becomes a roll of the court. (a)

A will thirty years old proves itself, if the possession has gone under it; and sometimes without the possession having gone under it, if the signing be sufficiently recorded but if the signing were not sufficiently recorded, it was a question whether the age sufficiently proved its validity. (b) It has lately, however, been distinctly decided, that a will thirty years old proves itself in all cases; the thirty years being reckoned from the date of the will, and not from the death of the testator. (c)

If a will of real estate is to be proved against the heir, the general rule of equity is, that all the witnesses to it must be examined, (d) except where a witness is dead, (e) insane, (f) not to be found, or abroad, (g) or perhaps where the will is not wholly but only partially in question, (h) or where all the witnesses falsely deny their attestation, (?) or the attestation is admitted by the heir at law. (k) But in all these cases, however, except the last, the hand writing of the witness must be proved. And where the testator had been dead for twenty-five years, and two of the attesting witnesses proved the execution of the will, and the handwriting of the third attesting witness, and that witness was described as a

(a) Gilb. Law of Ev. 271.

(b) Per Lord Eldon, Lord Rancliffe v. Lady Parkins, 6 Dow. 202.

(c) Doe d. Oldham v. Wolley, 8 B. & C. 22. Oldwell v. Deakin, 2 Man. & Ry. 192.

(d) Bootle v. Blundell, 19 Ves. 505; Cooper, 136, S. C., overruling a dictum of Lord Thurlow in Powel v. Cleaver, 2 B. C. C. 503.

(e) Bootle v. Blundell, 19 Ves. 505. (f) Bennett v. Taylor, 9 Ves. 381.

(g) Billing v. Brooksbank, cit. by Lord Eldon, 19 Ves. 505. Stedmore v. Padmore, 2 Dick. 589. Lord Carrington, v. Payne, 5 Ves. 404.

(4) Per Lord Eldon, 19 Ves. 505. (i) Ibid. 507.

(k) Aynsly v. Reed, 1 Dick. 249.

servant of A., and upon inquiries being made of a nephew of A., who had succeeded to the property of that gentleman, the answer was, that nothing had been heard of the witness for a great number of years, but no inquiry had been made of the family of the witness, as it was not known who his relations were; it was held that the proof was sufficient, and the will was declared to be well proved. (a) And in the late case of Tatham v. Wright, not yet reported, where on an issue directed by the Court of Chancery, only two witnesses were called, Sir John Leach, M. R. held the will well proved; but it is proper to observe that an appeal has been lodged against this decision; so that no satisfactory rule can be drawn from it.

3. Court Rolls.-Court rolls, whether of a court baron or of the customary court, are evidence between the lord of the manor and his copyholders or tenants; they are the public documents by which the inheritance of every tenant is preserved. (b)

Ancient writings, though not properly court rolls, but found among the court rolls and delivered down from steward to steward, purporting to be made

66

assensu omnium tenentium," have been admitted as evidence to prove the course of descent within a manor; and this, though they were not signed by any of the tenants. (c) So also entries on the court rolls, stating the customs within the manor as found by the homage, and regulating the descent of the several species of tenure, will be admitted as good evidence of the mode of descent, although no instance be shown of

(a) James v. Parnell, 1 Turn. & Russ. 417.

(6) Gilb. Ev. 67; 4 T. R.670.

(c) Denn d. Goodwin v. Spray, 1 T. R. 466. 473; 1 Phill. Ev. 417.