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"writings 3. Of record Records, and not of re

Records.

$212. " Writings" understood in this sense are of two Divisions of kinds, public and private (o). Under the former come 1. Public and writings. acts of parliament, judgments and acts of courts, both private. of voluntary and contentious jurisdiction, proclamations, public books, and the like. They may be divided into 2. Judicial and not judicial. "judicial" and "not judicial;" and also into of record" and "writings not of record (p)." says Lord Chief Baron Gilbert, "are the memorials of cord. the legislature, and of the king's courts of justice, and are authentic beyond all manner of contradiction (q).” They are said to be "monumenta veritatis et vetustatis vestigia (r)," as also "the treasure of the king (s)." But the judgments of tribunals are not in general receivable in evidence against those who were neither party nor privy to them; although, in some instances, the law from motives of policy renders them conclusive and binding on all the world, as in the case of judgments in rem, &c. (t) Among public documents of a judicial nature, Judicial docubut not of record, may be mentioned various forms of ments not of inquisitions, depositions, examinations, writs, pleadings, &c. of a public nature not judicial, the journals of the Houses of Parliament, the books of the Bank of England, registers of births, marriages and deaths, corporation books, books of heralds' visitations, books of deans and chapters, excise books, &c. To this class large additions have been made by modern enactments. See in particular 12 & 13 Vict. c. 106, s. 236; 8 & 9 Vict. c. 113; 8 & 9 Vict. c. 16, ss. 9 and 28; 14 & 15 Vict. c. 99; the 11 & 12 Vict. c. 42, s. 17, &c.

:

tetur. 5. Epistolas. 6. Libros rationum. Et 7. Quascunque alias scripturas privatorum :" Heinec. ad Pand. pars 4, § 128.

(o) See note (m) supra ; 2 Ph. Ev. 1, 10th Ed.

(p) 2 Ph. Evid. 1, 10th Ed.

(q) Gilb. Ev. 7, 4th Ed. See
ad id. Co. Litt. 260 a; 4 Co. 71 a;
Finch, Law, 231; 1 East, 355;
2 B. & Ad. 362.

(r) Co. Litt. 118 a; 293 b.
(s) 11 Edw. IV. 1.

(t) Infra, Part 3, bk. 2, ch. 9.

record.

Public docudicial.

ments not ju

Public writings in general.

§ 213. The principle of the admissibility of public writings in general is thus clearly explained in a text work: "Documents of a public nature, and of public authority, are generally admissible in evidence, although their authenticity be not confirmed by the usual and ordinary tests of truth, the obligation of an oath, and the power of cross-examining the parties on whose authority the truth of the document depends. The extraordinary degree of confidence thus reposed in such documents is founded principally upon the circumstance that they have been made by authorized and accredited agents appointed for the purpose, and also partly on the publicity of the subject matter to which they relate, and in some instances upon their antiquity. Where particular facts are inquired into, and recorded for the benefit of the public, those who are empowered to act in making such investigations and memorials, are in fact the agents of all the individuals who compose the public; and every member of the community may be supposed to be privy to the investigation. On the ground, therefore, of the credit due to the agents so empowered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary degree of confidence, and it is not requisite that they should be confirmed and sanctioned by the ordinary tests of truth; in addition to this, it would not only be difficult, but often utterly impossible, to prove facts of a public nature by means of actual witnesses examined upon oath (u)." This must not be understood to mean that the contents of public writings are admissible in evidence for every purpose:-each public document is only receivable in proof of those matters, the remembrance of which it was called into existence to perpetuate. Lastly, it is to be observed that, like records, some public writings are conclusive on all the world, such for instance as declarations of war, &c.

(u) Stark. Evid. 272-3, 4th Ed.

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This is not, however, their general character, as, most usually, they only hold good until disproved.

§ 214. Among private writings, the first and most im- Private writportant are those which come under the description of ings. "deeds," i. e., "writings sealed and delivered (y)." In Deeds. former ages deeds were rarely signed, and the essence of the instrument consisted, and indeed consists still, in the sealing and delivery.

"Re, verbis, scripto, consensu, traditione,
Junctura vestes sumere pacta solent,"

"No

has been the rule from the earliest times (z).
deed, charter, or writing can have the force of a deed
without a seal (a),” and “traditio loqui facit chartam (b).”
Deeds are usually attested by witnesses; who, in modern
times, subscribe their names to signify that the deed has
been executed in their presence (c). Anciently the num-
ber of witnesses was greater than at the present day,
and when the execution of a deed was put in issue
process was issued against the witnesses whose names
appeared on the instrument; and who, on their appear-
ance in court, seem to have discharged in some re-
spects the functions of a jury (d). Deeds differ from
inferior written instruments in these important respects.
1. That they are presumed to have been made on good
consideration; and this presumption cannot be rebutted (e),
unless the instrument is impeached for fraud (f);
whereas in parol and other contracts not under seal a

(y) 2 Blackst. Comm. 295; Co. Litt. 171 b; Finch, L. 108.

(z) Bracton, lib. 2, c. 5, fol. 16 b; Plowd. 161 b; Co. Litt. 36 a.

(a) 3 Inst. 169. (b) 5 Co. 1 a.

(c) 2 Blackst. Comm. 307, 308.
(d) Id.; Co. Litt. 6 b.

(e) Plowd. 309; 3 Stark. Ev.
930, 3rd Ed.; Id. 747, 4th Ed.

Ed.

(f) Stark. Ev. in loc. cit. 4th

consideration must be alleged and proved (g). 2. The 17/0 bich:c125. 4 execution of a deed must be proved by the testimony of at least one, and in some cases all, the attesting wit

Instruments not

under seal.

nesses (h). If they are dead, or insane, or out of the jurisdiction of the court, or cannot be found on diligent inquiry, proof may be given of their handwriting (¿) ; but the testimony of third parties, even though they may have been present at the execution of the instrument, will not be receivable to prove it. They may, however, be received to contradict the testimony of the subscribing witnesses (k), although formerly this was doubted (1). And so far is this principle carried, that even proof of an admission by a party of the execution of a deed will not dispense with proof by the attesting witness (m). But it is not necessary to call the attesting witness, or indeed give any other proof of a deed more than thirty years old, and coming from an unsuspected repository (n), unless perhaps when there is an erasure or other blemish in some material part of it (o).

$215. Instruments not under seal are sometimes attested by witnesses; and in such cases it has been held that the attesting witness must be called, or his handwriting proved, in the same way as in the case of a deed (p). Where there is no attesting witness the usual proof is by the handwriting of the party. The mode

(g) Rann v. Hughes, 7 T. R. 350 (n.)

(h) Infra, Part 3, bk. 2, ch 6. (i) See the cases collected, Stark. Ev. 512--521, 4th Ed. and 2 Phill. Ev. 254 et seq. 10th Ed.

(k) Blurton v. Toon, Holt, 290, Hudson's case, Skin. 79; Lowe v. Joliffe, 1 W. Bl. 365; Pike v. Badmering, cited in 2 Str. 1096.

(1) Per Alderson B. in Why

man v. Gath, 17 Jur. 559.
(m) Infra, Part 3, bk. 2, ch.

6.

(n) 2 Phill. Ev. 246, 10th Ed. (0) Id. 247, 10th Ed.

(p) Earl of Falmouth v. Roberts, 9 M. & W. 469; Streeter v. Bartlett, 5 C. B. 562; Doe d. Sykes v. Durnford, 2 M. & Sel. 62; Higgs v. Dixon, 2 Stark,

180.

of proof of handwriting is so important and peculiar that it will be considered in a separate section (q).

s. 5.

§ 216. Next as to wills. By the Statute of Frauds, 29 Wills. Car. II. c. 3, s. 5, it was enacted that all devises of lands 29 Car. II. c. 3, to be valid should be in writing and signed by the party, or by some other person in his presence and by his express directions, and attested and subscribed in his presence by at least three credible witnesses. Wills of personalty remained as at the common law and did not require any witness. But by the 7 Will. IV. & 1 Vict. c. 7 Will. IV. & 1 26, this part of the Statute of Frauds is repealed, and Vict. c. 26. it is enacted by sect. 9, "No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." In carrying out the provisions of this enactment, many wills, just and regular in all other respects, were rendered inoperative for inadvertent non-compliance with the forms which it prescribes. To remedy this was passed the 15 15 & 16 Vict. c. & 16 Vict. c. 24, s. 1, which after reciting that "by an act passed in the first year of the reign of her Majesty Queen Victoria, intituled An Act for the Amendment of the Laws with respect to Wills, it is enacted, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction: every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid within the said enactment, as ex(4) Sec infra, sect. 2.

24, s. 1.

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