Markby, J.:— It appears that in this case the evidence which was given in support of the document upon which the defendants' case depends was that of a Cazi before whom the vendor came and admitted the deed to be his, and caused it to be registered, bringing witnesses to his execution thereof, and in fact going pretty much through the same forms as are now in force under the Registration Act. Upon that evidence the lower Appellate Court very naturally came to the conclusion that the deed was proved, and the only question which we have to consider is, whether the Court was precluded from doing Page: A-19so by s. 67 of the Evidence Act. Now it is contended that that section renders it necessary that direct evidence of the handwriting of the person who is alleged to have executed the deed must be given by some person who saw the signature affixed. But that is not so expressly stated in the section, and it does not appear to me that that was the intention of the Legislature. It seems to me that that section merely states with reference to deeds what is the universal rule in all cases, that the person who makes an allegation must prove it. It lays down no new rule whatever as to the kind of proof which must be given. In that respect the rule is precisely the same as it stood before. It leaves it as before entirely to the discretion of the presiding judge of fact to determine what satisfies him that the document is a genuine one.
It may perhaps be thought that s. 60 has some bearing on this question. But I think it has not. That section provides that when it (i.e, the oral evidence) refers to a fact which could be seen, it (i.e, the oral evidence) must be the evidence of a witness who says he saw it. This last “it” is somewhat indefinite; but I think that this “it” has reference to the “fact” previously spoken of; and I think the fact previously spoken of is the fact deposed to, and therefore not always the fact which it is ultimately intended to prove. In other words, I do not think it was intended by this section to exclude circumstantial evidence of things which could be seen, heard, and felt, though the wording of the section is undoubtedly ambiguous, and at first sight might appear to have that meaning.
The special appeal is dismissed with costs.