commissioners themselves. There can be no doubt however that for private satisfaction,(y) the evidence thus afforded is of great weight. 436. The rates or assessments imposed by the churchwardens and overseers of the poor under St. 43 Eliz. c. 2, s. 1, on the occupiers of lands, houses, tithes impropriate, propriations of tithes, coal mines, and saleable underwoods," are directed by St. 17 G. 2, c. 38, s. 14, to be entered in a book, which is to be carefully preserved in some public place whereto the parishioners may freely resort, and to be produced at the [ *144 ] quarter sessions when any appeal against a rate is to be

determined. This direction to produce the book itself seems to exclude the evidence of copies; and the provision for its custody may be thought to prohibit its production in court on any other occasion than that which is specified.(z) The right of inspection however affords a facility of obtaining copies, which may be very conducive to the clearness of a vendor's title.

437. It is desirable, with a view to the marketableness of land, that the whole evidence of title should be contained in such written documents as are either admissible in Courts of Justice, or at least have not the appearance of being composed for the occasion. It is often, necessary, however, to have recourse to living testimony, in the form of affidavits by disinterested persons acquainted with the facts. And the fact of present possession, which is the basis of all the rest, is generally a matter of sufficient notoriety.

438. Supposing the proof or presumption of ancient seisin and right to be sufficient, we are next to consider the means by which that seisin and right have been transmitted to the present possessor; i. e. the alienations and descents which have occurred within the period of our investigation.

439. Deeds of alienation are for the most part indentures: (vide 140, n.) but they are sometimes deeds poll, i. e. single deeds, in the form of manifestoes or declarations to all the world of the *grantor's act [ *145 ] and intention. (Vide 20, 166, 167.) 440. In either case it is evident that the seal † and signature of the grantor must appear upon the deed. For though each part (or executed copy) of an indenture duly executed is of the same force and validity in itself as any other or all together, (b) and it is not necessary that all parties, or that the grantor, should execute every part, yet it is obvious that a counterpart, (or part not executed by the grantor,) does not bear in itself satisfactory evidence, nor with the addition of oral testimony can it ever constitute the best evidence, that the indenture has been executed at all by him who is the principal and indispensable party. 441. The execution by the grantee,(c) when the deed contains no engagement on his part, scarcely serves any other purpose than to show his assent to the grant; which, in the absence

(y) See Ongley v. Chambers, 1 Bing. 483. (z) But see R. v. Clear, 4 B. & C. 899. (b) Co. Litt. 229, a. But see Touchst. 53; Munn v. Godbold, 3 Bing. 292. (c) Co. Litt. 230, b. See Bland v. Inman, Cro. Car. 288; 3 Bing. 222.

† 440. n. As to delivery, see Tonchst. 57; Doe v. Knight, 5 B. & C. 671. And how the effect of the delivery may be suspended, so that the writing (which is then called an escrow, Co. Litt. 36, a.) shall not become a deed until some condition is performed, see Johnson v. Baker, 4 B. & A. 440; Murray v. E. of Stair, 2 B. & C. 82. That there cannot be two absolute deliveries, see Touchst. 60. Co. Litt. 48, b.

of evidence to the contrary, is always presumed. (d) 442. It is necessary, (e) however, that all persons who are intended to take any timmediate estate or benefit by an *indenture should be named in the beginning of it as parties. 443. Any rasure or altera[ *146 ] tion made by the party benefitted,(f) or, it is said, even by a stranger if in a material part, (though not perhaps if the party can clearly exculpate himself,) or cancellation or destruction of seals, (unless merely accidental,) will make a deed void which has once been good; (g) but alterations in the writing must in general, it is thought, be presumed to have been made before execution until the contrary appear; (h) 444. and in conveyances of real property, (considered merely as such, and without regard to their accessory or incidental contents,) it is immaterial, except as to the evidence of original validity, whether the deeds continue in force or not;(?) for their whole effect to this purpose is instantaneous, and the es ate which has once passed cannot be recalled.

445. In addition to the grantor's seal and signature, (the former of which, though once the great test of authenticity, is now a mere ceremony, like the indenting of the parchment,) it is usual for witnesses to attest the acts of signing, sealing, and delivery, by the subscription of their names to a form of words to that effect written at the foot or on the back of the deed, which for private purposes [ *147 ] is generally sufficient to authenticate it.(k) 446. In courts of justice to a deed thirty years old is said to prove itself, so that no inquiry is made for the witnesses: 447. and a bargain and sale, (vide 146,) though recent, is sufficiently authenticated by the memorandum of inrolment indorsed upon it by the proper officer;() which is also conclusive as to the § time of inrolment. 449. The date expressed in a deed, whether old or recent, is always presumed to have been the time of execution until the contrary be shown. 450. The usual formality of attestation (however important) is not essential to the validity of any deed, unless it be made in exercise of a power which has prescribed that as a requisite circum

(d) Thompson v. Leach, 2 Ventr. 198.

(e) Co. Litt. 231, a.

(f) Touchst. 68, &c. 2 Bac. Ab. 649, &c. 6 East, 312. See also Matson v. Booth, 5 M. & S. 223.

(g) Sugd. Pow. 121.

(h) Doe v. Bingham, 4 B. & A. 672.

(1) But see as to Lease, Hale, Co. Litt. 35, b. n. 7. (k) 2 Bac. Ab. 647. 1 Phill. Ev. 476.

(1) Kinnersley v. Orpe, Dougl. 56; Smartle v. Williams, 1 Salk. 280; Com. Dig. Barg. & Sa. B. 10. 2 Inst. 674.

† 442. n. This rule does not extend to remainders, (Co. Litt. 231, a. 259, b.) nor, it is commonly said, to uses, created by the indenture. 2 Prest. Conv. 394. But Sammes's Case, 13 Co. 55, there cited, is not directly in point. And it is now held that a power of attorney may be given by indenture to a person who is not named as a party. Co. Litt. 52, b; 2 M. & S. 323. Also a person not named as a party may enter into a covenant with one who is named; but this covenant cannot be mutual. Salter v. Kidgly, Carth. 76; Berkeley v. Hardy, 5 B. & C. 355.

446. n. So when other documents, of equal antiquity, are produced from the proper custody, no proof of hand-writing is required. Wynne v. Tyrwhitt, 4 B. & A.

376.

§ 448. So under the Registry Acts, (vide 235,) the Certificate of Registration, with the day and hour of it, indorsed upon the instrument, expressing also the book, page and number, and signed by the registrar, &c. is to be taken and allowed as evidence of the registry.

stance;(m) but in this case the requisition must be strictly complied with; insomuch that if a person be empowered to appoint uses "by writing under his hand and seal attested by two witnesses," and the clause of attestation to the instrument of appointment be only [ *148 ] * sealed and delivered by," &c. without the word signed, the appointment is void. This oversight having frequently been committed, the St. 54 G. 3, c. 168, was passed to remedy it by a retrospective operation; but without extending to future transactions.

451. A deed is not available in court unless it be stamped in the manner required by certain statutes for the benefit of the revenue; and this ought regularly to be done before execution. But, by St. 37 G. 3, c. 136, s. 2, the stamp may be affixed afterwards, on payment, in addition to the duty,(n) of a penalty of 10. for every skin of parchment or sheet of paper; and by St. 44 G. 3, c. 98, s. 24, this penalty may be remitted, if the application be made within twelve months after the execution, and the commissioners be satisfied that no fraud upon the revenue was intended. 452. The principal statute by which the existing duties for Great Britain have been imposed, is the 55 G. 3, c. 184, by which the conveyance upon the sale of any lands, tenements, rents, annuities, or other property, real or personal, or of any right or interest therein, was subjected to ant Ad Valorem duty upon the purchase money; viz. For "the principal or only deed, instrument or writing," by which the transfer is effected, if the "purchase or consideration mo[ *149 ] ney therein or thereupon expressed”—

Do not amount to £. 20

Amount to £. 20, and not to £.50

*

3

(m) Sudg. Pow. 239.

(n) See Burton v. Kirkby, 7 Tau. 174; Rippines v. Wright, 2 B. & A. 478.

+452. n. The first Act which imposed an Ad Valorem duty on conveyances upon sales was the 48 G. 3, c. 149.

453. The purchase or consideration money, is to be truly expressed and set forth in words at length;" and there are penalties for neglecting this injunction, which it is also for the interest of the vendor to observe, as by St. 48 G. 3, c. 149, s. 24, the purchaser may recover any money paid by him which is not so expressed and set forth: but it seems that, as *the duty is only on the consideration money expressed,(0) the deed would not be vitiated by the omission, though [ *150 ] drawing with it the non-payment of the true duty, and the absence of the appropriate stamp. 454. In addition to the Ad Valorem duty, the principal instrument is subjected to a duty of 17. for every entire quantity of 1,080 words contained in it, except the first. 455. Deeds in general, which are not charged with the Ad Valorem, or any other specific duty, pay one of 17. 15s., with the addition of 17. 5s. for every entire quantity of 1,080 words, except the first. 456. But where the conveyance on a sale or mortgage is by lease and release, the lease, if the consideration. money be under 207., is charged with 10s. only; if under 50%., with 15s.; and if under 1507, with 17.; and that a feoffment, or bargain and sale, may not, as consisting but of one deed, pay a lower duty, on such occasions, than a lease and release, the duty which would be incurred by the lease is accumulated upon the single instrument. 457. It is further

provided, that where property held by different titles, or to be enjoyed by different persons, is purchased at one time, but conveyed by separate instruments, the parties may apportion the consideration money as they think fit. 458. And it is added, that if the property be sold subject to any sum of money charged on it by mortgage or otherwise, whether that sum be due to the purchaser or to another, it shall *form [ *151 ] a part of the purchase money on which the duty is to be paid. †

459. Mortgages are also subject, under the same Act, to an Ad Valorem duty upon the amount of the loan, or principal sum secured; viz. if it do not exceed 50l. to a duty of 17.

And if it 20,000

15,000 2

25

exceed

10,000 - 12

15,000 - 15

460. And the same duty of 257. is imposed on a mortgage made for securing a growing debt or floating balance, unless the amount to be ulti

(0) 5 M. & S. 234; Doe v. Hobson, 3 Dow. & Ryl. 186.

+458. n. For other provisions it is necessary to refer to the Schedule of the Act, Part 1. Art. Conveyance; the points here noticed having been selected, as of principal importance, from many others.

mately recovered is limited not to exceed a certain sum;(p) for then that sum is the criterion of the duty. But sums to be advanced by the mortgagee for insurance of the property against fire,† are excepted, and [ *152 ] may be stipulated to be added to the principal without in

curring any additional duty. 461. A conveyance of property to trustees for sale, if intended only for a security, must have the same stamp as a mortgage; unless it be for the benefit of ‡ creditors generally, or of more than five specified creditors, or be accepted by a smaller number in full satisfaction of their debts. 462. The same additional duty in respect of length is applicable to mortgage as to purchase deeds. (Vide 454.) And it is provided that where the security is effected by several instruments at the same time, if the Ad Valorem duty exceed 21., only one of them shall be charged with it, and the rest according to

[ *153 ] their description and length; but the stamps affixed to

them shall denote the payment of the Ad Valorem duty. 463. From the Ad Valorem duty on mortgages, those instruments are also exempted, which are given by the same party as a further security for any sum which he has already secured by a mortgage charged with that duty; and by Stat. 3 G. 4, c. 117, s. 3, the exemption is extended to all instruments without restriction, which are given as a further security for money already secured by a || bond, on which a similar Ad Valorem duty has been paid; but in either case, if any further sum be added to the principal, a new duty must be paid in respect of the addi464. Re-conveyance on redemption of a mortgage requires only the ordinary deed stamp ; and so, (by the same statute, s. 2,) the transfer of a mortgage, unless in respect of a further principal sum added to the debt.

tion.

465. If the stamp be of a sufficient amount(q) and be not marked with the name of another kind of instrument than that to which it is affixed, it will be sufficient, though it be not of the proper denomination. 466. And it seems that, on payment of the penalty as well as duty,(r) the stamp now in use may be affixed to a deed made before the 52 G. 3,

(p) See Williams v. Rawlinson, 3 Bing. 71. (q) 1 Phill. Ev. 512.

(r) Doe v. Whittingham, 4 Tau. 20.

+460. n. There is another exception of sums to be advanced for the "insurance of any life or lives pursuant to any agreement in any deed, whereby any annuity shall be granted or secured for such life or lives." (Vide 233.) This seems to refer to instruments not primarily purporting a mortgage, but the grant of an annuity; where the security given for sums to be advanced for the purpose of insurance, would constitute such a charge of those sums as, but for the exception, would require a mortgage stamp. But it is not very usual on the grant of a life annuity to make any stipu lation as to insurance, and therefore this exceptive clause is of little service. A more appropriate clause in the same part of the Act would have been one that related to insurance upon the life of a mortgagor who should be only tenant for life of the mortgaged property; but this has been omitted.

461. n. And this exception applies, although a preference or priority of payment be given to two or three of the creditors. Coates v. Perry, 3 B. & B. 48.

$462. n. A Bond given on this occasion, (not amounting to 2,160 words,) is charged with a duty of 17. only.

463. n. It is to be regretted that this statute does not, in terms at least, extend the generality of its exemption, (without regard to the identity of the person giving the second security,) to the cases more restrictively privileged by the former Act.