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Ancient Writings

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ANCIENT WRITINGS. Deeds, wills, and other writings, more than thirty years old.

They may, in general, be read in evidence without any other proof of their execution than that they have been in the possession of those claiming rights under them; 1 Greenl. Ey. § 141; 12 M. & W. 205; 8 Q. B. 158 ; 7 Beay. 93; Barr v. Gratz, 4 Wheat. (U. S.) 213, 4 L. Ed. 553; Lessee of Clarke v. Courtney, 5 Pet. (U. S.) 319, 8 L. Ed. 140; Winn v. Patterson, 9 Pet. (U. S.) 663, 9 L. Ed. 266; Jackson v. Blanshan, 3 Johns. (N. Y.) 292, 3 Am. Dec. 485 ; Middleton v. Mass, 2 Nott. & McC. (S. C.) 55; Duncan v. Beard; id. 400; Tolman v. Emerson, 4 Pick. (Mass.) 160; Crane v. Marshall, 16 Me. 27, 33 Am. Dec. 631; Dodge v. Briggs, 27 Fed. 170; O'Donnell v. Johns & Co., 76 Tex. 362, 13 S. W. 376; Pettingell v. Boynton, 139 Mass. 244, 29 N. E. 655; McCloskey v. Barr, 47 Fed. 154; King v. Sears, 91 Ga. 577, 18 S. E. 830; Whitman v. Heneberry, 73 Ill. 109. As to the admission of duplicate copies, see Na tional Commercial Bank v. Gray, 71 Hun 295, 24 N. Y. Supp. 997. See DECLARATION; Ev IDENCE.

The rule is broad enough to admit ancient deeds purporting to have been signed by an agent without production of the power of attorney; Wilson v. Snow, 228 U. S. 217, 33 Sup. Ct. 487, 57 L. Ed.

Spanish documents produced to and in spected by the court, coming from official cus tody and bearing on their face every evi dence of age and authenticity, and otherwise entitled to admissibility as ancient docu ments, will not be excluded because subjected to various changes of possession during the transition of the government of Florida from Spain to the United States and during the Civil War, it not appearing that they were ever out of the custody of a proper custodian, that the originals were lost, or that there had been any fraudulent substitution ; Mc Guire v. Blount, 199 U. S. 142, 26 Sup. Ct. 1, 50 L. Ed. 125.

Ancient documents are not admissible in evidence as "public documents" where they were not intended to be so, but to serve tem porary purposes only. Also where the rec

ords were made by a -deceased official, there being nothing to show that they were made contemporaneously with the doing of some thing which it was the duty of the deceased official to record. In this case it was at tempted to prove that certain land, within legal memory, had been covered by the sea. A survey made in 1616 by the Lord Warden of the Cinque Ports and an estimate by the King's engineer for the reparation of certain castles were rejected for the above reasons; (19051 2 Ch. 538.

Where an instrument itself would be ad missible without proof of execution, being over thirty years old, and its absence is sat isfactorily accounted for, held that evidence of its contents was likewise admissible with out proof of execution; Walker v. Petersoni (Tex.) 33 S. W. 269, Dec. 18, 1895.

A deed signed by the grantor by his mark and not witnessed or acknowledged, and therefore insufficient on its face, is inad missible as an ancient deed without proof of execution ; O'Neal v. Railroad Co., 140 Ala. 378, 37 South. 275, 1 Ann. Cas. 319. As a general rule in the case of ancient writ. ings, proof of execution is not necessary; Fulkerson v. Holmes, 117 U. S. 389, 6 Sup. Ct. 780, 29 L. Ed. 915; Whitman v. Heneber ry, 73 Ill. 109; such documents when ad mitted are to be construed as duly executed; Brown v. Wood, 6 Rich. Eq. (S. C.) 155; and the genuineness must be established; Me. Cleskey's Adm'rs v. Leadbetter, 1 Ga. 551; mere antiquity is not enough if the paper appears defective upon its face ; Resume v. Chambers, 22 Mo. 36; Williams v. Bass, 22 Vt. 352 ; mere production is not sufficient; Fogal v. Pirro, 23 N. Y. Super. Ct. 100; when no consideration is expressed and the words "this indenture" are omitted, it is instil• dent ; Gitting's Lessee v. Hall, 1 Har. & J. (Md.) 14, 2 Am. Dec. 502. Deeds were admit ted, though defective in form and execution, in Hoge v. Hubb, 94 Mo. 489, 7 S. W. 443; Hill v. Lord, 48 Me. 83; White v. Hutchings, 40 Ala. 253, 88 Am. Dec. 766.