and sale of freehold in lands, &c. is as good evidence as the original itself; (1) but that a copy of the enrolment is not evidence of a bargain and sale of a chattel interest, or of the contents of any other deed enrolled for safe custody, except as against the party acknowledging the deed; and that against such party, and against all claiming under him, a copy of the enrolment of any deed is admissible in evidence. (a)

* 356

*Thirdly, The recital of a deed in another deed is evidence against the party, who executed the reciting deed, or against any person claiming under him; and it will not be necessary, in such a case, to prove the execution of the recited deed; but proof of the execution of that, which recites the other, will be sufficient; for, the par- (411) ty, and those claiming under him, are estopped by the recital. (2) Thus, the recital of a lease in a deed of release is good evidence of such lease against the releasor, and those who claim under him. (3) So where a party by his deed covenanted to lay out a sum of money in an annuity, and recited in the deed, that he had given a bond for the payment of the money, the recital was held

(1) See 14 East, 231, and Hobhouse
Hamilton, Schoal. & Lefr. 207.
(2) Com. Dig. tit. Evidence, (B. 5.)

Fitzgerald v Eustace, Gilb. Ev. 87.
(3) Ford v Grey, Salk. 285.

(a) A statute of the state of New-York, sess. 36. c. 97. 1 R. L. 370. provides for the proving and recording of "every deed, conveyance or writing of or concerning any lands or real estate within the state;" and "any deed, conveyance or writing so acknowledged or proved, whether the same be recorded or not, or the record thereof, or a transcript of such record, certified by the Secretary of this state, or the clerk in whose office the same may be recorded or registered, under the seal of the Court of Common Pleas of the county whereof he is clerk, may be read in evidence in any court of this state without further proof thereof." s. 5. 1 R. L. 370, 371. The acknowledgment and proof of deeds is merely for the purpose of recording them, and is not conclusive on the opposite party: the proof or acknowledgment is necessarily ex parte; and the party who is to be affected by the deed may question its validity, and the force and effect of the formal proof. Jackson d. Hardenbergh and others v Schoonmaker, 4 Johns. Rep. 164. A paper purporting to be the record of a deed, which was not duly acknowledged, is a nullity, and not admissible in evidence either as a record or as a copy of a deest, Doe v Ree, 1 Johns, Cas, 402.

4. Deed produced by rule of Court.

Proof of exe

cution.

to be sufficient evidence of the bond; for it fession by the obligor himself, and stronger t bal confession, being under his band and seal. recital cannot operate as an estoppel against sons who are neither parties nor privies to the deed, and will not be evidence of the contents cited deed. (2) (a) If the recital can be prove rect copy, it is scarcely necessary to observe, th be admissible like any other examined copy, w condary evidence of a deed can be admitted. (b)

Lastly, a deed may be given in evidence, unde of Court, without proof of execution; for the co conclusive, and the jury are to try only such fact in issue between the parties. (3)

The cases above stated have been mentioned ceptions; for the general rule is, that a deed can given in evidence without proof of its execution.

(1) Marchioness of Annandale v
Harris, 2 P. Wins. 432. by Ld Chan.
King. See also Shelley v Wright,
Willes, 11. and Com. Dig. tit. Estoppel,

(A.2)

(2) 1 Salk. 285.
(3) I Siderf. 269. Gilb. Ev

(a) Vide 1 Dall. 67. A deed reciting another deed is evidence of the deed against the grantor, and all persons claiming by title derived from hium quently; but it is not evidence against one who claims from him by title the deed which contains the recital. Penrose v Griffith, 4 Binney 231.

(b) It was held, in the case of an ancient deed, of the loss of which som dence had been given, where the possession had not been contrary to the and where the subscribing witnesses had been long dead, that a recital in an deed, (between other parties,) particularly if made by persons likely to know fact, was evidence of the lost deed. Garwood and others v Dennis, 4 Biz 314.

(c) Where a deed is offered in evidence to the jury, the court may either cide themselves that it is, or is not sufficiently proved, and admit or reject it cordingly, or they may refer the evidence to the jury, instructing them to dis gard the deed, unless, they are satisfied with the proof of its execution. Com sioners of Berks County v Ross, 3 Binney 539. M'Corkle v Binns, 5 Binney 3Vide ante, 214. n. Where a deed is executed by virtue of a power of attorne the power itself should be produced at the trial. Johnson v Mason, Esp, Re 89. Yarborough v Beard, Tayl. 25. White et al. v Skinner, 13 Johns. 307.

The execution of every attested instrument, whether under seal or not, ought to be proved by a subscribing wit ness, if he can be produced, and is capable of being examined. The subscribing *witness alone is competent to prove the execution, because he may be able to state the time of the execution and some circumstances of the transaction, which may be material and unknown to other persons. On an indictment therefore against an apprentice for enlisting himself in the army, all the Judges held, that the indenture of apprenticeship could not be proved by the master, but that it was necessary to call one of the subscribing witnesses. (1) (a)

This rule is so strictly observed, that an acknowledgment of the obligor himself, admitting that he executed a bond, (2)(b) and even an admission by the defendant in an answer to a bill filed against him for a discovery, (3) will not dispense with the testimony of the subscribing witness; for though the party may acknowledge the bond, yet he may not know every circumstance attending the execution; "a fact may be known to the subscribing witness, not within the knowledge or recollection of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction." (4) The rule is precisely the same, whether the acknowledgment is offered as evidence. against the party himself who made it, (5) or against a third person; (6) or whether the deed is an existing in

(1) R. v Jones, East, P. C. 822. 1 Leach Cr. C. 208. S. C. Rv Harring worth, 4 Maule & Selw. 350.

(2) Abbot v Plumbe, 1 Dougl. 216. cited by Lawrence J. 7 T. R. 267. and 2 East, 187.

(3) Call v Duaning, 4 East, 53. See Bowles and another, Assignees of Jones

v Langworthy, 5 T. R. 366.; and as to
the case of R. v Middley, on the au-
thority of which that case was deter
mined, see ante, p. 396.

(4) Le Blanc. J. 4 East, 53.
(5) 4 East, 53.
(6) 1 Dougl. 216.

(a) Vide Willoughby v Carleton, 9 Johns, Rep. 136.

Davison's Lessee v

Bloomer, Dall. 123. Pearl v Allen, 1 Tyler 4. Hǝgland v Sebring, L
Southard N. J. Rep. 103.

(b) Vide Clements v Eason, Hayn. 18.

357

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of the party.(a) It is not absolutely necessary that the witness should see the party sign orseal; if he sees him deliver it already signed and sealed, or merely sealed, as his own deed,it will be sufficient. Nor will it be necessary for him to prove, that blanks, which had been left in the instrument for the purpose of being filled up, were filled up at the time of the execution. (1) Some evidence of the identity of the party, who executed is obviously necessary (2) Signing is not an essential part of a deed at common law; but it has been required in some cases by act of parliament, particularly by the statute of frauds, which expressly directs a signing in all grants of a freehold estate in lands, and in some other species of deeds; in which, therefore, signing is as necessary as sealing.(b)

Signing is sometimes made necessary to the execution of a power, by the express words of the deed which creates the power; and, in such cases, if attestation of the signature is required, an attestation merely of the sealing and delivery will not be sufficient. Thus, in the case of Wright v. Wakeford, (3) where a power was

(1) England v Roper, 1 Starkie, 304. Middleton v Sandford, 4 Campb. 31.

(3) 4 Taunt. 214.; Mansfield C. J. dissenting. 17 Ves. 454. S. C.

(a) A subscribing witness to a warrant of attorney swore, that from his minutes be found that he was present at a certain place, on a certain day, being the day the warrant bore date, and that upon reference to the warrant he found his name in his own hand writing as an attesting witness, and that the seal appeared to be taken from an engraving he then and still had; and from all these circumstances he was convinced that he was present, and witnessed the execution of the instru ment; this was held sufficient proof of the warrant to go to the jury. Pigott v Holloway, I Binney 436. Et vide Churchill v Speight's Ex'rs, 2 Hayn. 338. When a subscribing witness declares that he does not recollect having seen the instrument executed but presumes it must have been regular, or otherwise he should not have signed it; held sufficient evidence of the execution of the deed to entitle it to go to the jury. Denn v Mason, 1 Cox Rep. 10.

(b) Proof that a party signed a deed which bears on the face of it a declaration that the deed was sealed by the party, is evidence to be left to a jury that the party sealed and delivered the deed. Talbot ▼ Hodson, 7 Tauni. Rep. 261. Curtiss v Hill, 1 Southard Rep. 148.