Of the cvidence. By devisee of freehold in terest. ness alone may not be able to prove the due execution of the will. It is not necessary that the witnesses should attest every page, or that they should know the contents, but all the will should be in the room; whether it was so or not is a question for the jury. (a) The witnesses are required to attest and subscribe in the presence of the testator, but that fact need not be expressed in the attestation, though it must be proved in evidence. (b) It is not necessary that the testator should actually see the witnesses signing (c), it is sufficient, if he be in such a state of mind, and such a situation, as to be capable of seeing the witnesses in the Witness dead. act of subscribing. (d) If the witnesses are all dead or insane, their hand-writing and that of the testator must be proved, and though the attestation does not express that the witnesses signed the will in the presence of the testator, yet a jury may find in favour of the will. (e) Or abroad. Proof of will above thirty years old. Where a witness to a will is abroad, proof of his hand-writing is admissible. (f) Though all the subscribing witnesses to a will should swear that it was not duly executed, yet the devisee may give evidence in support of the will. (g) In a court of law a will thirty years old, if the possession has gone under it, and sometimes without the possession, but always with the possession, if the signing is sufficiently recorded, proves itself; but, if the signing is not sufficiently recorded, it is a question whether the age proves its validity, and then possession under the will, and claiming and dealing with the property as if it had passed under the will, is cogent evidence to prove the duly signing, though it should not be recorded. (h) The defendant may impeach the will, either by shewing that (a) Bond v. Seawell, 3 Burr. 1773. 1 Wm. Bl. 407, S. C. Lea v. Libb, 3 (b) Brice v. Smith, Willes, 1. 6 Dow, 202. (c). Shires v. Glascock, 2 Salk. 688. v. Glascock, 2 Salk. 688. Sheer's case, (e) Croft v. Paulet, 2 Str. 1109. Brice v. Smith, Willes, 1. Hands v. James, Com. 530. (f) Ld. Carrington v. Payne, 5 Ves. 411. Powel v. Cleaver, 2 Br. Ch. Ca. 504. 1 Phill. Ev. 484.. (g) Bull. N. P. 264. Lowe v. Joliffe, 1 Wn. Bl. 365. (h) Per Lord Eldon, C, in Lord Rancliffe v. Parkyns, 6 Dow, 202; and see Mackenzie v. Fraser, 9 Ves. 5. Calthorpe v. Gouglr, 4 T. R. 707, 708, 1 Phill. Ev. 485. notes. it is a forgery, or by proving the incapacity of the testator to make a will. That incapacity may arise either by coverture or infancy (a), or by idiotcy, or nonsane memory. (b) In answer to the defence of insanity, the plaintiff may shew that the will was executed during a lucid interval. (c) The defendant may also prove the will void on account of fraud. (d) The defendant may likewise shew that the will has been revoked: 1. By some other will or codicil in writing, which must be a will duly executed according to the 5th sec. of the statute of frauds (e), and such will, if it does not expressly revoke, operates as a revocation, so far only as it is clearly inconsistent with the former devise. (f) 2dly. By a writing declaring a revocation, according to the 6th section of the statute of frauds, which requires such writing to be signed in the presence of three or four witnesses, but not that the witnesses should subscribe in the presence of the testator. (g) 3dly. According to the same section, by burning, cancelling, tearing, or obliterating the will by the testator himself, or by his directions and consent, which acts must be done with the intent to revoke (h), and a partial or incomplete burning, &c. with such an intention, will be a complete revocation. (i) 4th. The defendant may shew the will revoked by the happening of any of those circumstances which constitute an implied revocation, as by a subsequent marriage and the birth of a child without provision made for them. (k) Of the evidence. By devisee of freehold interest. Evidence for defendant. Revocation. The devisee of a leasehold interest must prove. 1. The exe- By devisee of cution of the lease by the lessor, or, if the testator was an assig (a) Stat S4, 35 Hen. 8, c. 5, s. 14. (b) Ibid. Marquis of Winchester's case, 6 Rep. 25, a. (c) 1 Phillim. Rep. 100. Atty. Gen. v. Parnther, 3 Br. C.C. 443. Expte. Holyland, 11 Ves. 11. 2 Phill. Evid. 241, 6th edit. (d) Doe d. Small v. Allen, 8 T. R. 147. (e) Eccleston v. Speke, Carth. 80. Onions v. Tyrer, 1 P. Williams, 343. Winsor v. Pratt, 2 B. and B. 656. 2 Phill. Evid. 244, 6th edit. 3 Stark. Evid. 1714. () Harwood v. Goodright, Cowp. 87. (g) Townsend v. Pearce, 8 Vin. Ab. Dev. p. 142. 1 P. Wms. 345. (h) 2 Phill. Evid. 245, 6th edit. ; and the cases there collected; and Winsor v. Pratt, 2 B. and B. 655. 3 Stark. Evid. 1714. (i) Bibb d. Mole v. Thomas, 2 Wm. Bl. 1043. Doe d. Perkes v. Perkes, 3 Barn. and Ald. 489. (k) 2 Phill. Evid. 245; and see Cruise's Dig. v. 6, c. 6, title Devise. As to the admissibility of parol evidence to rebut implied revocations, see 2 H. Bl. 524. 1 Phill. Rep. 469, 341, 344, 460. 4 Ves. 848. 2 East, 543. 5 T. R. 58. 3 Stark, Evid. 1716. leasehold inter est. nee of the original lease, the execution of the lease, and the assignment to the testator. (a) 2. The probate of the will, since the lease is a chattel interest; and 3dly. The assent of the executor to the bequest. (b) The devisee of copyhold premises must prove: 1st. The admittance of the testator. 2dly. The will, and in cases not within the statute 55 Geo. 3, c. 192, which dispenses with such surrenders, a surrender to the use of the will; and 3dly. His own admittance. (c) A will to pass copyholds need not be signed with the same solemnities as a devise of lands in fee-simple; a draft of, or instructions for a will have been held sufficient to direct the uses of a surrender. (d) If the surrender was before the day of the demise, the admittance may be at any time before trial. (e) The surrender and admittance may be proved by the original entries on the court rolls of the manor, or by copies of the court rolls of the admittance and surrender properly stamped (f), with evidence of the identity of the party admitted. (g) The admittance of tenant for life being the admittance of him in remainder (h), a devisee in remainder need only shew the admittance of the first copyholder for life. In ejectment by a mortgagee against a mortgagor in possession, the mortgagee need only prove the execution of the mortgage deed (i), but, if a third person be in possession, the lessor of the plaintiff must shew a title to oust him. Thus, if he be a tenant from year to year, who came in prior to the mortgage, the lessor must prove the tenancy, and that he has given him a regular notice to quit (k), but, if the tenant came in subsequently to the mortgage, and has not been acknowledged as tenant by the mortgagee, it will be sufficient to shew that his interest was (a) Doe d. Digby v. Steel, 3 Campb. N. P. C. 115. (b) 2 Phill. Evid. 247, 6th edit. 2 Stark. Evid. 519. Ante, p. 514. (c) Roe d. Jefferys v. Hicks, 2 Wils. 15. 2 Phill. Evid. 248, 6th edit. 2 Stark. Evid. 417. Ante. p. 512. (d) Carey v. Askew, 2 Br. C. C.319. Doe d. Cooke v. Danvers, 7 East, 299, 324. (e) Doe d. Bennington v. Hall, 16 East, 208. Ante, p. 512. (f) Ibid. (g) Doe d. Hanson v. Smith, 1 Campb. N. P. C. 197. (h) Auncelme v. Auncelnie, Cro. Jac. 31. Ante, p. 515. (i) It seems, that the mortgagee should prove a demand of possession. Ante, p. 549, quære. (k) Thunder d. Weaver v. Belcher, 3 East, 449. 2 Phill. Evid. 255, 6th edit. 2 Stark. Evid. 537. Ante, p. 544. " created subsequently to the title of the lessor of the plaintiff, without proving any notice to quit. (a) When a parson brings ejectment for the recovery of the parsonage-house, glebe, or tithes, he must shew his title, by proving his presentation, institution, and induction, and this is sufficient without proof of title in the patron. (b) If the presentation was by parol, it may be proved by a witness who was present and heard it (c), but, a presentation by a corporation must be in writing under their common seal. (d) The institution may be proved by the letters testimonial of institution, or by the official entry in the public register of the diocese, which ought regularly to record the time of the institution, and on whose presentation. (e) The induction may be proved either by some person present at the ceremony, or by the indorsement on the mandate, which is directed by the ordinary to the archdeacon, or by the return to the mandate, if a return has been made. (ƒ) The lessor of the plaintiff will not be required to prove that he has taken the requisite oaths, or that he has declared his assent to the book of common prayer, according to the act of uniformity (13, 14 C. 2, s. 6.) (g) Some evidence should be given to shew that the property to be recovered is the property of the church, as that the premises were occupied by a former incumbent, &c. (h) (a) Ante, p.544. (b) Heath v. Pryn, 1 Vent. 14. Bull. N. P. 105. 2 Phill. Evid. 256, 6th edit. 2 Stark. Evid. 536. Before induction, the parson has not the temporalties belonging to his rectory, 2 Inst. 358; nor can he have spoliation, trespass, or assise, Plowd. 528; he has no remedy for the profits, per Popham, J. Quarles v. Fairchild, Cro. Eliz. 653; that is, the temporal profits, Anon. 11 Mod. 46. Before induction he has not the freehold either in deed or in law. Plowd. 528. See further, Vin. Ab. Presentation, (D. b. 2). Com. Dig. Esglise, (L). Wats. Clerg. Law, 156. But see Hitching v. Glover, 1 Rol. Rep. 192, where it is said by Coke, that he who is instituted may enter into the glebe land before induction, and has a right to have it (c) See R. v. Eriswell, 3 T. R, 723. (ƒ) 2 Phill. Evid. 267, 2nd edit. See (g) Ibid. Powell v. Millbank, 2 W. Bl. 851. 3 Wils, 555, S. C. 3 East, 199. 3 Anst. 942. (h) 2 Phill. Evid. 258. Of the evidence. By parson. Of the evidence. By a person an execution. If a tenant by elegit bring ejectment (a), he must prove the judgment, the elegit taken out upon it, and the inquisition and return thereupon (b); for this purpose an examined copy of the claiming under judgment roll, containing the award of elegit and the return of the inquisition is sufficient, without proving a copy of the elegit and of the inquisition. (c) If the sheriff's return does not state that he has set out a moiety by metes and bounds, it is bad, and the objection may be taken at the trial. (d) If a third person be in possession, the lessor of the plaintiff must prove not only his own title, but that of the debtor under whom he claims. (e) By conusee of statute mer chant, or staple. In ejectment to recover lands, the lease of which had been taken in execution under a fi. fa. against a termor, by the plaintiff in the first action, (the present lessor of the plaintiff) to whom an assignment had been made by the sheriff, it was held not to be sufficient to prove the writ of fi. fa. without also proving the judgment. (f) In ejectment by the conusee of a statute merchant against the conusor, the lessor of the plaintiff must prove the obligation of the conusor, or in case the obligation has been lost or damaged, a true copy from the roll in the custody of the clerk of recognisances, or his deputy, made and signed by him or his deputy, and duly proved, and in the next place the writ of extent must be proved. An examined copy of the writ of capias si laicus. does not appear to be necessary, as it is recited in the writ of extent. If a third person, and not the conusor, is in possession, in addition to these proofs the lessor of the plaintiff must give evidence of the conusor's title. (g) In ejectment by the conusee of a statute staple, he must produce and prove, 1. The bond of the conusor, or in case of its loss or damage, a true copy from the roll in the custody of the clerk of recognisances, or his deputy, made and signed by the clerk or his deputy, and duly proved; and 2ndly the writ of liberate; but proof of the writ of extent appears not to be necessary, as that writ is recited in the liberate. If a third person be (a) 2 Phill. Evid. 252, 6th edit. 2 (b) Ramsbottom v. Buckhurst, 2 M. (d) Masters v. Durrant, 1 B. & A. 40. (e) 2 Phill. Evid. 252, 6th edit. (f) Doe d. Bland v. Smith, Holt's N. P. C. 589. 2 Stark. N. P. C. 199, S. C. (g) 2 Phill. Evid. 253, 6th edit. |