copy of the enrolment of any deed is admissible, and equivalent to an examined copy of the original deed. (a) The enrolment of a lease under the statute 2 Geo. IV. c. 52, (b) which enacts that a deed so enrolled shall be as available at law, in all respects, as if it were enrolled in his Majesty's courts of record at Westminster, or as if a memorial of any such deed had been registered in the register offices, is not admissible as evidence of the deed, without proof of the execution. (c) Where a lease contained a proviso that it should be enrolled with the auditor of the Duchy of Lancaster, the certificate of the auditor on the margin of the lease was held sufficient evidence of the enrolment. (d) 10. Heirship.-Where a title is derived through an heir at law, it will not only be necessary to prove that the heir was the legitimate son, but also the eldest son of his father; or if the heir at law be a daughter, it will. be necessary to prove that there was no other child. These facts will be best proved by affidavits of persons who are intimately acquainted with the family. 11. Bachelorhood.-Where, if the vendor or mortgagor were married, his wife would be entitled to dower, evidence is usually required of his being a bachelor, and may, it would seem, be insisted on; (e) and wherever in an abstract, the right to dower would attach, a similar inquiry should be made as to the fact of the marriage; and it should be shown, if possible, that the person was not married; or if married, left no widow. (a) 1 Phill. Ev. 464; and see Combes v. Spencer, 2 Vern. 471. (b) s. 8. (c) Ann & Eliz. Jenkins v. Bid dulph, 1 Ry. & Moo. 339. (d) Kinnersley v. Orpe, Doug. 56. (e) See Power v. Shiel, 1 Breat. 48; ante, p. 327. If no direct proof can be given of this, the will of the person will be collateral evidence, if it make no mention of a wife, or if he died intestate, it should be shown to whom letters of administration were granted. 12. Identity. It will frequently be necessary not only to produce registers of the births, marriages, or deaths of the persons mentioned in the abstract, but also to prove their identity with the persons mentioned in those registers. In such cases, an affidavit of the identity of the party must be made by some competent person. 13. Payment of Money into Court.---When money is to be paid into court, and it is incumbent that it should be seen that it has been so applied, and there is no subsequent order of the court recognizing the payment, the fact of the payment should be stated from an office copy of the Accountant-General's certificate. (a) 14. Payment of Legacies.-The production of a release of a legacy is evidence of the payment of debts, unless a special proviso be inserted in the release for abatement, in case any future demand be substantiated. III. OF THE MISCELLANEOUS EVIDENCES OF ABSTRACTS OF TITLE. 1. Public books.-Where a book is of a public nature, and admissible in evidence, an examined copy will be equally admissible. Thus, examined copies of entries in the Bank books, (b) in the books of the East India Company, (c) in the books of assessments made by (a) 1 Prest. Abs. 190. (b) Marsh v. Colnet, 2 Esp. N. P. C. 665, Breton v. Coape, Peake, N. P. C. 30. Auriol . Smith, 18 Ves. 198. the commissioners of land-tax, (a) in the court rolls of a manor, (b) will be admitted as evidence. 2. Parliamentary Surveys.-Parliamentary surveys are deserving of great consideration, particularly if they are executed with accuracy. (c) In ascertaining the meaning and effect of a charter, contemporaneous documents, proceedings in causes relating to it, and parol testimony, may be resorted to in order to explain its construction, but not to contradict it. (d) A document from the Exchequer, purporting to be an extent of crown lands, and pursuing the directions of the 4 Ed. I. stat. 1, may be given in evidence without producing the commission. (e) 3. Terriers.-Terriers are of two kinds, temporal and ecclesiastical. The former are evidence of manorial tenures or boundaries; (f) the latter are evidence of the possessions of a church in questions of tithes. (g) But an ecclesiastical terrier must be produced from the proper custody; (h) for the character and authenticity of terriers, and similar documents, depend in a great degree on the place or custody in which they have been kept. They should be produced (a) Rex v. King & others, 2 T. R. 234. See post, p. 389. (b) Tuckey v. Flower, Comb. 137. Rex v. Haines, ib. 337. Doe d. Churchwardens of Croydon v. Cook, 5 Esp. N. P. C. 221. (c) Attorney-General v. Hotham, Turn. 209. But see Atkins v. Drake, M'Clell, & Yo. 213, where it is laid down that evidence afforded by ecclesiastical and parliamentary surveys, either for or against a modus, is entitled to very little weight. (d) The Governors of the Free School at Luton v. Scarlett and Smith, 2 Yo. & Jer. 330. (e) Rowe v. Brenton, 3 Man. & Ry. 164. (f) Gilb. Ev. 69; 1 Phill. Ev. 419; Bull. N. P. 248. (g) 5 Pri. 380. 383; 1 Phill. Ev. 419. (h) 1 Phill. Ev. 419; and Miller v. Forster, 2 Anst. 387; and see ib. 386, from the proper depository, and if they have been regularly preserved, it will not be necessary to prove that they are genuine. (a) Terriers are not documents of such conclusive authority as to exclude all other evidence, but are to be construed and explained by the usage proved respecting the subject matter to which they refer. (b) 4. Pedigrees.-Pedigrees made at a former period in the absence of other evidence, will prove the facts mentioned in them. (c) Pedigrees are, however, generally proved by the proper certificates of the births, marriages, and burials of the persons mentioned in them; but in default of these, there are other modes of proving them. Thus, the ancient books of the Herald's Office, and their visitation books of counties, will be admitted as evidence of a pedigree. (d) Descents in pedigrees are also frequently proved by certificates of marriage, entries in family bibles, engravings on tomb-stones, or other similar evidence, or by the affidavits of persons long acquainted with the family. (e) So also a verdict, or So also a verdict, or a statement in a bill in Chancery will be admissible to prove a pedigree. (f) Witnesses cannot be brought on a question of pedigree to prove the declarations of a relative whose de (a) 1 Phill. Ev. 479. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. Bullen v. Michel, 2 Pri. 413. Mercer's Company of Shrewsbury v. Hart, 1 Car. N. P. C. 113. (b) Atkins v. Drake, 1 M'Clell. & Yo. 213. Davis v. Mosely, 13 Pri. 423. (c) Cowp. 494; 10 East, 120. Berk ley Peerage case, 4 Camp. 401; 11 East, 504. Ante, p. 200. (d) King d. Ld. Thanet v. Foster, Jon. 224. Pitton v. Walter, 1 Str. 161. Matthews v. Port, Comb. 63. Attorney General v. Monckton, L. C. H. T. 1831. (e) Bull. N. P. 233. position is read. (a) And in a late case, it has been held that the declarations of deceased servants and acquaintances, however intimate, are not admissible in evidence in questions of pedigree. Such declaration must be made by relations or members of the family. (b) However, it has been held that the evidence of a witness was admissible as to what he had heard a deceased physician say as to declarations made by another person who was also dead, in proof of a pedigree. (c) And the declarations of the husband or wife of one of the family are admissible for this purpose, though he or she may not otherwise be related to the family. (d) And declarations by deceased relatives as to particular events happening in a family are clearly admissible, if they are uninterested, and before disputes have arisen. (e) But mere tradition and current opinion are never admissible. (ƒ) 5. Family Documents.-Memoranda in old family bibles, old histories and wills, and other family documents, will also be admitted as evidence of the facts they record. (g) So also inscriptions on tomb-stones and engravings on rings, in default of better evidence, I will be admissible. (h) (a) Gordon v. Gordon, 3 Swanst. 465. (b) Johnson v. Lawson, 9 Moo. 183. S. C.; 2 Bing. 86. See also 13 Ves. 514. (c) 9 Moo. 187.n. (d) Vowles v. Young, 13 Ves. 140. Doe d. Northey v. Harvey, 1 Ry. & Moo. 297. Futter v. Randall, 2 Mo. & Pay. 20. (e) Cowp. 594; 10 East, 120; 13 Ves. 147. 514. Doe v. Griffin, 15, (g) Cowp. 594: 10 East, 120. Berkeley Peerage case, 4 Camp. 401. Herbert v. Tuckal, T. Raym. 84. Doe d. Johnson v. Earl of Pembroke, 11 East, 504. (h) Cowp. 594; 10 East, 120; 13 Ves. 144. 514. |