(q) R. S. C. 1883, rr. 7, 9, replacing R. S. C. April, 1880, rr. 45, 46.

(r) See stats. 8 & 9 Vict.c. 118, ss. 147, 150; 9 & 10 Vict. c. 70, ss. 9 - 11: 10 & 11 Vict. c. Ill, 88. 4, 6; 11 & 12 Vict. c. 99, ss. 13, 14 (partition); 12 & 13 Vict. c. 83, ss 7, 11; 15 & 16 Vict., c. 79, ss. 31, 32; 17 A: 18 Vict. c. 97, s. 5; 20 & 21 Vict, c. 31, ss. 4 - 11; 22 & 23 Vict, c. 43, ss. 10, 11; 39 & 40 Vict, c. 56, s. 33.

(s) See above, p. 147, n. (q).

Fine: - proved (1) by the chirograph, that is, the in- Fine, dentures which were made recording the transaction and which it was the duty of the proper officer to deliver to the parties (t); (2) by an exemplification; (3) by an examined copy (u); (4) as a record under the charge of the Master of the Rolls (x). Conveyancers usually received office extracts as evidence (y).

Lease for a year made for giving effect to a release executed before the 15th of May, 1841: - proved, without giving any evidence of loss, by the recital or mention thereof in the release (z).

Lease for a year.

Pedigree, matters of. The regular conveyancing evidence that a child was born of certain parents is a certificate of baptism (a), that is, a certified extract from the parochial register (b). But a certificate of birth, which is a certified extract from the general register of births (c), is equally good (d). A certificate of baptism affords no exact evidence of a child's age, beyond that the child was born before the date of the certificate: but the Court, in pedigree cases, may look at the statements contained in such certificates, and weigh them in connection with other evidence (e). A certificate of birth, however, is evidence of the date as stated therein as well as of the fact of birth (f). Marriage is regularly proved by a certificate of marriage extracted from the parochial or general register; and death by a certificate of burial (g). And it is doubtful whether a purchaser would be compelled to accept a certificate of death as evidence of that fact, unless good reason were given for not producing a certificate of burial (h). Here we may observe that when the facts of birth, marriage or death have to be proved to the Court on such occasions as the payment of money out of Court, the necessary certificates must be accompanied by affidavits as to the identity of the parties named in the certificates (i): but it is not the practice to require similar evidence of identity on sales, unless the identity be not apparent on the face of the certificate (k). Extracts from non-parochial registers of birth, baptism, marriage or death, as those kept in dissenting communities, have long been received by conveyancers as evidence (l); and extracts from certain non-parochial registers deposited with the Registrar-General are now available as evidence in litigation (m). As we have seen (n), in the absence of the regular formal evidence of these facts, recourse is had to other means of proof; preferably, of course, to evidence admissible in litigation, such as the declarations of deceased members of the family (o), but in default thereof, to statutory declarations of living members of the family and even of strangers.

Pedigree; birth.

Age.

(t) Black. Comiu. 296, 351; Taylor, Evidence, Sec. 1384, 5th ed.; Appleton v. Braybrook, 6 M. & S. 34, 37, 38.

(u)Burt. Comp. pl 487.

(x) see below: Taylor, Evidence, Sec. 1338, 1377, 5th ed.

(y) Burt. Comp. pl. 489; Sug. V. & P. 414; 1 Dart, V. & P. 315, 5th ed.; 356, 6th ed.; 352, 7th ed.

(z) Stat. 4 & 5 Vict. c. 21, 8. 2. This Act was repealed by stat. 37 & 38 Vict. c. 96, but with such extensive savings that the rule enacted by s. 2 seems to be preserved, see Sayers v. Collyer, 28 Ch. D. 103, 107; Re R. 1906, 1 Ch. 730; Dart, V. & P. 314, 5th ed.; 356, 6th ed.

(a) Coventry, Conveyancers' Evidence, 278; Sug. V. & P. 415; 1 Dart, V. & P. 346, 347, 5th ed.; 392, 6th ed.; 386, 7th ed.

(b) See Taylor, Evidence, Sec. 1436-8, pp. 1369-71, 5th ed.

(c) Established by stat. 6 & 7 Will. IV. c. 86, amended by 7 Will. IV. & 1 Vict. c. 22. and 37 & 38 Vict. c. 88.

(d) Above, pp. 139, 139, n. and 154,n.(f),below; 1 Dart. V. & P. 346, 347, 5th ed.; 392, 6th ed.; 386, 7th ed.

(e) Re Turner, 29 Ch. D. 985, 991-2; Taylor, Evidence, Sec. 1577. 5th ed.

Marriage.

Death.

(f) R. v. Weaver, L. R. 2 C. C. R. 85; Re Goodrich, 1904, P. 138.

(g) Coventry, Conveyancers' Evidence, 278; Sug. V. & P. 415; 1 Dart, V. & P. 346, 347, 5th ed.; 392, 6th ed.; 386, 7th ed.; 1 Davidson, Prec. Conv. 553, 4th ed.

(h) 1 Dart, V. & P. 347, 5th ed.; 392, 6th ed.; 386, 7th ed. In proceedings to obtain payment of money out of Court, if it be sought to prove death by a certificate of death and affidavit of identity, the Court will requirj proof of burial as well; Riseley v. Shephard, W. N. 1873, p. 150; 21 W. R. 782. There are previous conflicting decisions; Leach v. Leach, 8 Jur. 211; contra, Parkinson v. Francis, 15 Sim. 160.

(i) Dan. Ch. Pr. 591, n. (y), 6th ed.; Seton on Judgments, 154, 6th ed. But at law such certificates may be put in evidence without proof of identity, the question of identity being for the jury; Hubbard v. Lees, L. R. 1 Ex. 255, 257.

(k) Coventry, Conveyancers' Evidence, 278; and see Sug. V. & P. 417. From what is said in 1 Dart, V. & P. 346, 5th ed.; 392, 6th ed.; 386, 7th ed., and 1 Davidson, Prec. Conv. 553, 4th ed., 460, 5th ed.. one would gather that evidence of identity was usually required: but it is submitted that on sales the practice is as above stated.

(l) Sug. V. & P. 418; 1 Dart, V. & P. 346, 347, 5th ed.; 392, 6th ed.; 386, 7th ed.

Where no evidence at all can be furnished in some matter of pedigree, recourse may be had to presumption, but the conveyancer must bear in mind that the rules which govern the presumption of marriage, legitimacy or death as between adverse litigants claiming some property by title of inheritance or otherwise, do not strictly apply as between vendor and purchaser (p). In litigation of this kind the contest is whether of the two parties can show the better right, and if the plaintiff can show a better title than the defendant (or vice verm), he may be entitled to succeed, notwithstanding that there may be some third party entitled to take in priority to both of them. But the title which a vendor of land is bound to show, at least under an open contract, is a title good against all other persons (q). The purchaser is therefore always entitled to proof of all matters of fact, which are part of or affect the title (r); and the vendor cannot absolve himself from the obligation of producing such evidence on the plea that, if the parties were engaged in litigation to obtain possession of the property sold, there would be a presumption dispensing the vendor from proving the point at issue affirmatively. Besides, the rule of equity is that the vendor cannot enforce specific performance of the contract where the title shown is too doubtful in respect of some fact on which its validity depends (s). And even by the rule of law, where the title depends on some fact, the fact must be proved with reasonable certainty (t). No doubt it is true that in some cases a purchaser is obliged to accept what are called presumptions of fact: but these presumptions are really inferences or conclusions to be drawn from certain evidence produced (u), and not such presumptions as absolve one party to an action from giving any proof at all. And it is thought that the only rule which binds a purchaser as to these so-called presumptions of fact is that already stated, namely, that he must presume whatever a judge would at law direct a jury to presume, but cannot be required to presume any matter which the judge would leave to the jury to pronounce on the effect of the evidence (x). As regards death especially, where the title to land sold depends upon the fact of a death having occurred, and no evidence of the death can be procured, no legal presumption arises, in favour of the vendor and as against the purchaser, from the fact that the person, whose death is required to be established, has not been heard of for the last seven years or longer by those with whom he would naturally have communicated if alive (y).