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1812.

Lady DARTMOUTH

against ROBERTS.

upon the merits, that as this evidence related to a period before the restraining statutes of the 13 Eliz. c. 10. and 13 Eliz. c. 20., and as there was no evidence that since those statutes the tithes of hay in this place had belonged to or been enjoyed by the vicar, it was open to the jury to presume that before the restraining statutes the vicar, with the consent of the patron and ordinary, had conveyed away the tithes in exchange for a valuable consideration to some other monastery, the property of which afterwards, on its dissolution, went to the crown, from which it passed into the hands of the grantee of this rectory. “And this question, as it affected the general merits of the case, went to the jury, who found a verdict for the plaintiffs.

In the last term a new trial was moved for, Ist, upon the general merits of the title, which stood upon the argument already briefly adverted to; and, 2dly, upon the admissibility of the evidence of the bill and answer offered by the plaintiffs in disproof of the vicar's title; as to which the case stood thus: The plaintiffs produced copies of a bill and answers in the Court of Exchequer in a cause instituted in 1777 by Henry Elmsall, clerk, vicar of Batley, against William Earl of Dartmouth, (the father of the late Earl) and S. Leathley and others (owners of lands), claiming tithe-hay under the ancient endowment in 1253. The defendants, Leathley and others, in their answers, denied the vicar's right, and stated that tithe-hay, or some annual payment, modus, or composition, had been constantly or for a long series of years paid to the Earl of Dartmouth, or those under whom he claimed, and that they believed that the tithe-hay belonged to him, and that they had paid ls. 4d. annually per acre for arable, meadow, and pasture, within the

town

1812.

Lady DARTMOUTH

against ROBERTS.

townships of Morley and Churwell, in the parish of Batley, for all rectorial tithes. It was admitted that Leathley, one of the defendants in that suit, was the then owner and occupier of the land now held by the defendant Roberts, who had purchased it from him. The copies of the bill and answers were proved to have been examined with the originals; but it was objected on the part of the defendant, that they were not evidence at all, as being res inter alios acta ; or, if admissible, that the original answer of Leathley ought to have been produced; but the learned Judge overruled the objections, and received the evidence, which went to the jury with the rest of the evidence in the cause. No decree was shewn to have been made in this suit; but in the result the claim was abandoned, without costs; and from that time the vicar had acquiesced.

Park and Holroyd shewed cause, and, upon the first point, relied on the argument already adverted to; upon the 2d, they insisted that in all matters of public record, the copy is admissible evidence; it is a rule adopted for the preservation of the originals, and it is also to be presumed that they may be wanted in different places at the same time; so that public convenience requires that copies of them should be received; and, therefore, except in the case of perjury, it is held that there is no need to produce the original.

Scarlett and Richardson, contrà. This answer, considered as a proceeding in a suit, was not evidence against the defendant, because it was res inter alios acta, and also because it was not followed up by any

decree

one

1812. decree. In Ford v. Gray (a), the Court said that “if

make answer in Chancery which is prejudicial to his Lady DARTMOUTH own estate, it may be evidence against him, but it shall against

not be evidence against his alienee;" and though an ROBERTS.

answer may be evidence where there has not been a decree, yet it is then only evidence as a declaration of the party making it. Now admitting this to be evidence as the declaration of Leathley, under whom the defendant claims, the objection to the examined copy is good, because, in order to prove it a declaration in writing by the party, the signature or hand-writing of the party making it must be proved, which can only be done by the production of the original.

Lord ELLENBOROUGH, C. J. The question before the Court is, whether this matter should undergo a revision either on the ground of the evidence being not sufficient to sustain the verdict, or on that of the Judge's having received inadmissible evidence. In a case like this, where the verdict is not conclusive on the rights of the party, but those rights may be reagitated in another suit, if upon consideration the party is dissatisfied, the Court will not be inclined to send it down again unnecessarily. On the question as to the sufficiency of evidence of title, I am inclined to think that in 1253 the tithe of hay was in the vicar, under the endowment of the Archbishop of York, with the consent of the Prior and his convent. But assuming that under the endowment the vicar was once well entitled to the tithe of hay, co-extensive with the limits of his parish, he might, before the restraining statutes, have granted it to another ecclesiastical person with

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the consent of patron and ordinary. There would then 1812. have been a portion of tithes dissevered from the vicarage,

Lady and there was evidence that it was so dissevered, from DARTMOUTH the conveyance of the tithe in 1676 to Lord Halifax,

against

ROBERTS. which after their disseverance, but prior to the restraining statutes, might have got into lay hands. We therefore want to pray in aid only this supposition, as to these portions of tithe which appear to have been enjoyed dissevered from the vicarage, that they were so dissevered ; and in favour of modern enjoyment, which is the best interpreter of right, where documentary evidence does not exist, we will, in conformity with Lord Kenyon, who said that he would presume 200 deeds if necessary, presume here that a disseverance took place. The actual perception of tithe hay, either in kind, or by composition, never appeared to be in the vicar from the time of the first endowment; but a perception of ls. 4d. annually, for a considerable time, under a general composition with the rector, which though not so strong as if the rector had taken it in kind, will virtually include it, nothing appearing to the contrary. Therefore there was not only evidence to be left in the balance to the jury, but that evidence preponderated in favour of the rector's claim. The only question remaining is, whether the answer of Leathley, a co-defendant with a former Earl of Dartmouth in a cause instituted against them by the vicar of Batley, was properly received in evidence. It appears to me that this was not res inter alios acta, but inter eosdem acta, and was not only evidence but strong evidence against the defendant, who stood in the same place by derivation of title and by legal obligation as Leathley ; and Leathley upon his oath in a suit against him by the vicar has declared that the tithe is due to the rector, and

not

1812.

not to the vicar; and now that same person in effect is

deraigning the title of the rector in favour of the vicar. Lady DARTMOUTH The reading of his answer therefore operates as a contra

against ROBERTS.

diction to him; and as to its being only a copy of the answer, I know of no case where, in a mere civil proceeding, it is held necessary to have the actual answer signed by the party in order to read it against him ; the rule only applies where the party is charged criminally, as in perjury, or in an action for a malicious prosecution, which is of the nature of a criminal proceeding. Therefore on both grounds I think it unnecessary to disturb the verdict.

LE BLANC, J. (a) I am of the same opinion. With respect to the admissibility of an evidence, it seems that no line of distinction is drawn except in criminal proceedings, or in those which are in their nature criminal, as in the case of an action for a malicious prosecution; in other cases it is sufficient to produce an examined copy of the answer, without proving the hand-writing of the party. It seems to me, therefore, that whether this is to be considered as a proceeding in the suit, or as a declaration of the party, it is equally evidence. The suit was instituted upon a claim of the vicar against the rector and others, occupiers of lands; to which they put in their answer, denying the right. I will not say it was the same party, but the answer was put in, and the bill dismissed, and evidence was given that since that the tithes have been taken by the rector. I cannot help thinking, that where the question in dispute is whether the tithe belongs to the rector or the vicar, it is competent evi

(a) Grose, J. was absent,

dence

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