Doe on the demise of Neale against Samples
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 1838 |
| Date | 24 April 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 794
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. & P. 255; 1 W. W. & H. 228; 7 L. J. Q. B. 140; 2 Jur. 841.
[151] dob on the demise of NEALE against samples. Tuesday, April 24th, 1838. A document more than thirty years old is admissible in evidence without proof of execution, if produced by persons whose possession of it may be reasonably accounted for, although their custody be not the strictly proper one. A. conveyed lands to trustees by way of marriage settlement, the deed containing a proviso that it should be void if the marriage did not take place in six months. The marriage did ao take place. Afterwards A. executed a mortgage of the same lands in fee. On his death, the mortgagee brought ejectment against A.'s son, then in possession. The son, in defence, produced the deed of settlement, which appeared to have remained among his father's papers ever since the execution, and was more than thirty years old. Held, that the deed might be read in evidence without proof of the execution. [S. C. 3 N. & P. 255; 1 W. W. & H. 228 ; 7 L. J. Q. B. 140; 2 Jur. 841.] On the trial of this ejectment, before Lord Denman C.J., at the laat Winchester Assizes, it appeared that the lessor of the plaintiff claimed under a mortgage to him in fee, by lease and release, executed in 1821 by John Samples, the defendant's father, since deceased. The defendant's case was, that, in 1785, the father, being then seised of the premises in question, executed a conveyance of them to trustees, by way of marriage settlement; the limitations being for the benefit of himself for his life, then of his intended wife for her life, and, after the death of the survivor of them, to the use of the children of the marriage, one of whom was the defendant: and consequently that, at the time of the supposed mortgage, the mortgagor had only a life-estate. The defendant's attorney produced the deed of settlement, which he had found among the papers of John Samples the father, at his late residence. It bore date November 9th, 1785, and contained a proviso avoiding it if the marriage should not be solemnized within six calendar months. The marriage was proved to have taken place within that time. No evidence was given as to the execution of the deed ; but it was put in as proving itself, being more than thirty years old. The plaintiff's counsel objected that proof of execution could not be dispensed with on this...
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