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§ 459. In dealing with this subject, much reliance is commonly placed on an analogy drawn from the rule of pleading which, previous to the 15 & 16 Vict. c. 76, s. 55, required profert to be made of deeds and some other species of writings. This seems founded chiefly on Dr. Leyfield's case (k), where it is stated that "the reason that deeds being so pleaded shall be shewed to the court, is, that to every deed two things are requisite and necessary; the one, that it be sufficient in law, and that is called the legal part, because the judgment of that belongs to the judges of the law; the other concerns matter of fact, sc. if it be sealed and delivered as a deed, and the trial thereof belongs to the country. And therefore every deed ought to approve itself, and to be proved by others: approve itself upon its shewing forth to the court in two manners. 1. As to the composition of the words to be sufficient in law, and the court shall judge that. 2. That it be not razed or interlined in material points or places, and upon that also in ancient time the judges did judge upon their view the deed to be void, as appears in 7 Edw. III. 57. 25 Edw. III. 41. 41 Edw. III. 10. &c. but of late times the judges have left that to be tried by the jury, s. if the razing or interlining was before the delivery. 3. That it may appear to the court and to the party, if it was upon condition, limitation, or with power of revocation, &c. to the intent that if there be a condition, limitation, or power of revocation in be poll, or if there wants a count the other party may take adva limitation, or power of revocati c. Conditions, f. 90, 91; 40 Ass. are the reasons of the law, that shall be shewed forth to t ingly held in that case that

when they spoke of how the contents of a written instrument were to be proved? It would be difficult either to prove or disprove directly what was the practice in former times in this respect relative to evidence extra causam, our actual law of evidence being of comparatively modern growth, and our ancient books affording very slender information as to what questions may be put on cross-examination, as distinguished from examination in chief. But it is by no means clear that even in this latter case our ancestors extended the principle requiring primary proof beyond records, deeds, and perhaps written instruments in general. The reasons given by the old lawyers for rejecting derivative or extrinsic evidence have manifest reference to such (g), while all other documents seem to have been considered as mere "parol." And this view seems supported by the traces of the ancient practice which have come down to us. In the State Trials we constantly find the contents of documents given by witnesses from recollection (h); but then the circumstance that those were decisions in state prosecutions, during very excited times, detracts from their value as accurate representations of the ordinary practice of the period. It is, however, tolerably certain that, so late at least as the latter end of the sixteenth century, all other forms of derivative evidence, such as hearsay, &c., were received as evidence in causâ, their weakness being only matter of observation to the jury (i). Now it seems improbable that while hearsay evidence was receivable in chief within three centuries of our own times, a witness could not, from the earliest period of English law, be asked on cross-examination either the contents of the most ordinary document, or whether he ever made a representation of some particular fact, because by possibility it might turn out that he had not done so verbally.

§ 459. In dealing with this subject, much reliance is commonly placed on an analogy drawn from the rule of pleading which, previous to the 15 & 16 Vict. c. 76, s. 55, required profert to be made of deeds and some other species of writings. This seems founded chiefly on Dr. Leyfield's case (k), where it is stated that "the reason that deeds being so pleaded shall be shewed to the court, is, that to every deed two things are requisite and necessary; the one, that it be sufficient in law, and that is called the legal part, because the judgment of that belongs to the judges of the law; the other concerns matter of fact, sc. if it be sealed and delivered as a deed, and the trial thereof belongs to the country. And therefore every deed ought to approve itself, and to be proved by others: approve itself upon its shewing forth to the court in two manners. 1. As to the composition of the words to be sufficient in law, and the court shall judge that. 2. That it be not razed or interlined in material points or places, and upon that also in ancient time the judges did judge upon their view the deed to be void, as appears in 7 Edw. III. 57. 25 Edw. III. 41. 41 Edw. III. 10. &c. but of late times the judges have left that to be tried by the jury, s. if the razing or interlining was before the delivery. 3. That it may appear to the court and to the party, if it was upon condition, limitation, or with power of revocation, &c. to the intent that if there be a condition, limitation, or power of revocation in the deed, if the deed be poll, or if there wants a counterpart of the indenture, the other party may take advantage of the condition, limitation, or power of revocation, and therewith (Litt. c. Conditions, f. 90, 91; 40 Ass. 34) agree. And these are the reasons of the law, that deeds pleaded in court shall be shewed forth to the court.' It was accordingly held in that case that the defendant was bound to

(k) 10 Co. 92.

make profert of the letters-patent on which he rested his justification of the trespass complained of; but whether what follows the passage just quoted is to be read as the language of the court or of the reporter, is not so easy to say. "And therefore it appears, that it is dangerous to suffer any who by the law in pleading ought to shew the deed itself to the court, upon the general issue to prove in evidence to a jury by witnesses that there was such a deed, which they have heard and read; or to prove it by a copy: for the viciousness, rasures, or interlineations, or other imperfections in these cases, will not appear to the court; or peradventure the deed may be upon condition, limitation, with power of revocation, and by this way truth and justice and the true reason of the common law would be subverted. But yet in great and notorious extremities, as by casualty of fire, that all his evidences were burnt in his house, there if that should appear to the judges, they may, in favour of him who has so great a loss by fire, suffer him upon the general issue to prove the deed in evidence to the jury by witnesses, that affliction be not added to affliction; and if the jury find it, although it be not shewed forth in evidence, it shall be good enough, as appears in 28 Ass. p. 3. but in 12 Ass. p. 16. the judges would not suffer a deed to be given in evidence which was not shewed forth to the jury. Vide 26 Ass. p. 2, the like (l)." *

(1) The two cases from the book of Assizes will be found on examination to fall very far short of the general proposition which they are cited to support. The 26 Ass. pl. 2, is perhaps a little obscure; but the 12 Ass. pl. 16, is as follows:-"Trove fuit per verdict d'assize, que les tenements fueront dones a B. et a R. per un chartre que voloit ceux parolx, Dedi, etc. Et les defend

ants fueront les files B. et R. et le pl' le fitz B. d'une autre feme. Et pur ceo que garrant ne chiet pas en lour conis. que deveront faire le tail, et la chartre ne fuit pas monstre en evidence ne pled, agarde fuit que le fitz recover, &c., uncore les files pled que la terre fuit don en tail, etc. Quære, si la chart ust este monstre, si la tail ust este è les files."