Of deeds.

(a) Scriv. 493.

(b) 1 Y. & C. Ex. 303.

(c) Scriv. 494; Sug. 476.

(d) Sug. 442.

(e) Doe d. Counsell v. Caperton, 9

Car. & P. 112.

(f) As to mutilation of deeds, and defects in the Stamps, etc., vide infra, p. 161.

(g) Laythoarp v. Bryant, 1 Bing. N. C. 421.

(h) 2 Phill. on Ev. 203; Man v. Ricketts, 7 Beav. 93.

(i) l. e., a place where it may reasonably be expected to be found, although not the most proper place of custody: Croughton v. Blake, 12 Mee. & W. 205; Doe v. Phillips, 8 Q. B. 158.

(j) 1 Jarm. Conv. by S. 179. Sir E. Sugden seems to think that it is sufficient, in the absence of special circumstances, on the sale of freeholds, to prove the due execution of the conveyance of the fee to the vendor: V. and P. 463.

(k) Supra, 151.

(l) As to what evidence of loss is sufficient, see Hart v. Hart, 1 Ha. 1; Green v. Bailey, 15 Sim. 542.

(m) Bryant v. Busk, 4 Russ. J; Southby v. Hutt, 2 Myl. & Cr. 207; and see Doe v. Brydges, 7 Sco. N. R. 339.

(n) Harvey v. Philips, 2 Atk. 541.

(o) Fitzwalter Peerage, 10 Cl. & Fin. 952.

(p) 1 Jarm. Conv. by S. 170.

In a case in Ireland, by a settlement executed in 1745, estates were limited in strict settlement, with a power of revocation reserved to the settlor; this power was stated to have been exercised by a will dated in 1761, but of which neither the original nor any copy could be produced; the estates were re-settled in 1763 by a deed which recited the power of revocation and exercise of the power by the will, and possession had ever since gone under this deed: under these circumstances, Sugden, C, held the recital to be sufficient evidence of the contents and execution of the will (u).

The same estates were limited in strict settlement in 1788; in February, 1814, the tenant for life and first tenant in tail entered into articles of agreement to bar the entail and re-settle the estates to certain specified uses, with a power of revocation; neither the original nor any copy of the articles could be produced, although search had been made for them; they were, however, recited in the deed making the tenant to the praecipe which was dated March 1814; in 1815, upon the marriage of the tenant in tail, the power of revocation was exercised, and the estates were re-settled, and had since been enjoyed accordingly: Sugden, C, after remarking that the articles appeared to have been voluntary, and that the settlement was for consideration, held that, under the special circumstances of the case, the recital was sufficient evidence of the contents of the articles (v).

Recitals of -when evidence.

(q) But the enrolment, or an examined copy of the enrolment, of any deed executed under the provisions of the Acts relating to the Duchy of Cornwall, is sufficient proof of the contents and due execution of the original, although its non-production be not accounted for; see 7 & 8 Vict. c. 65, s. 34.

(r) Burt. Comp. 478, et seq.

(s) Wollaston v. Hakewill, 3 Man. & Gr. 297; Doe v. Clifford, 2 Car. & K. 448.

(t) Doe v. Clifford, ubi supra: but see Collins v. Maule, 8 Car. & P. 502.

(u) Alexander v. Crosby, 1 J. & L. 666.

Probably, in the above case the decision might have been different, if, instead of mere articles of agreement, the missing instrument had been one which affected the legal estate.

The recital or mention of a lease for a year in any conveyance executed before the 15th May, 1841, is sufficient evidence of the execution of such lease; without proof of its loss (w): and in any renewed Ecclesiastical lease granted since the 21st June, 1836, (unless in pursuance of a covenant or agreement entered into before the 1st of March, 1836,) the recital of the old lease, and of the deaths, etc. of the cestius que vie, is conclusive evidence thereof (a?).

A Fine should be proved by the chirograph, or an exemplification under the seal (y) of the Court, or a copy examined with the original roll and proved by the oath of the examiner (z): mere office extracts, although often relied on, and generally received by conveyancers, are not evidence (a).

A Recovery is proved by an exemplification or an examined copy (b).

Lease for a year proved by recital.

Renewed Ecclesiastical lease.

Fines and Recoveries.

(v) Alexander v. Crosby, 1 J. & L. 666.

(w) 4 & 5 Vict. c. 21, s. 2.

(a?) 6 Will. IV. c. 20, ss. 2 & 9.

(y) The loss of the seal is immaterial, if the document come from the proper custody; Mayor of Beverley v. Craven, 2 Moo. & R. 140.

(z) Burt. Comp. pl. 487; Doe v. Ross, 7 Mee. & W. 102.

(a) Buller's N. P. 227.

(b) Burt. Comp. pl. 490.

Where an estate has been purchased and held for twenty years or upwards under a title which depends upon a recovery which has not been enrolled, the deed duly making the tenant to the praecipe, and leading the uses of the recovery, is sufficient evidence thereof, as in favour of the purchaser and all parties claiming under him (c).

The 3 & 4 Will. IV. c. 74, s. 13, provides for the change of custody of the Records of Fines and Recoveries levied and suffered at Westminster, Lancaster, and Durham; and makes extracts and copies, supplied after such change of custody, as available in evidence as they would have been if supplied in the usual way before the passing of the Act; and, by the 5 Vict. c. 3.2, provision is made for the enrolment, in the office of the Registrar of the Court of Common Pleas at Westminster, of the proceedings in Fines and Recoveries levied and suffered in the Courts of Great Session in Wales, and the Court of Great Session in Cheshire, and for remedying in certain cases defects in the original Records (d); and by the 11 & 12 Vict. c. 70, evidence of Fines at Westminster having been levied with Proclamations is rendered unnecessary.

A grant from the Crown is regularly proved by an exemplification, or certified copy; but if the original be lost, and the vendor's solicitor ascertain and inform the purchaser where the grant is enrolled, the latter cannot, it appears, require a copy, but must examine the enrolment at his own expense (e).