dence for the rector to shew that in a proceeding between the vicar and rector, the vicar set up a claim, and in the result abandoned that claim, and that tithe has ever since then been paid to the rector. The next question is, whether this was a verdict clearly against evidence. Now where the uniform course of enjoyment has been with the plaintiff, the Court will presume every thing necessary for the support of it. It seems to me to be giving too much weight to the documentary evidence on the part of the defendant, to hold that the tithe might not have been conveyed away out of the vicar so as to have got into the plaintiff's hands; the tithe might have been conveyed from the vicar to an ecclesiastical body, and from them to the ancestors of Lord Dartmouth; and if there be any way by which it might have taken place, the Court will presume that was the way in favour of the enjoyment. It must be remembered too that this verdict is not conclusive upon the right, or affecting any thing farther than the close in question.

BAYLEY, J. In every point of view in which the evidence of this answer can be considered, it seems to me that proof of an examined copy was sufficient; it is a proceeding in a court of justice, and in general without considering who are the parties, or for what purpose it is produced, a proceeding in a court of justice is proveable by an examined copy. This rule has arisen from the convenience of the thing, that the originals may not be required to be removed from place to place. Besides which, here I think the proceedings were inter eosdem ; for the rector was a party, and the vicar was a party, and the person also under whom the defendant derives title, and he would necessarily have had an opportunity of VOL. XVI.

A a

1812.

Lady DARTMOUTH

cross

1812.

Lady

ROBERTS.

cross-examining. There is another ground on which it may be sustained, for it was a proceeding in a suit DARTMOUTH Which the vicar had instituted, and upon the coming in against of the answer had abandoned. Now the contention here is that the vicar had the right; it seems reasonable then that any medium of proof, by which it could be shewn that the vicar had not the right, should be admissible; but that is shewn by proving that the vicar made his claim, and upon an adverse title being set up against him, abandoned such claim, and since that time the tithe has been taken by the rector; surely that is strong evidence. As to the question upon the weight of evidence, it has already been fully considered; and it does not appear to involve a right of any great extent. The vicar does not set up a claim, but only the defendant, who does not choose to pay tithe to any one, and so when the rector claims he sets up the vicar's right, and vice versâ. If this had been a claim by the vicar to the whole tithe, and involved all the parish, the case might have been more nice; but here supposing this action conclusive, it can only be so in respect of four acres, and the costs of another trial would exceed the value. In a case then where the right of Lord Dartmouth is not impeached, but is consistent with the enjoyment, and where the vicar having once made his claim has abandoned it, I think it would be going too far to send the case down to a new trial, for so small a value.

Rule discharged.

STOTT

STOTT against STOTT and PILLing.

HE plaintiff brought an action of trespass for breaking and entering her close called the Lane, in the parish of Rochdale, in the county of Lancaster, and breaking gates, &c., and with horses and carriages damaging the grass. The defendants pleaded, 1st, not guilty; 2dly, a justification under a public right of way over the locus in quo, which was wrongfully stopped up; 3dly, (upon which the question turned,) that the defendant Pilling before and at the time when, &c. was and still is seised in his demesne as of fee of and in a certain messuage, and divers, to wit, 50 acres of land, with the appurtenances, situate at Spotland in the said parish of Rochdale in the said county, and that he, Pilling, and all those whose estate he now hath, and at the said time when, &c. had, of and in the said messuage and land, with the appurtenances, from time immemorial have had and used, and have been accustomed to have and use, and of right ought to have had and used, and the said Pilling, at the time when, &c. ought to have had and used for himself and themselves, and his and their farmers and tenants, occupiers of the said messuage and land, with the appurtenances, and his and their servants, a certain way on foot and horseback, and with carriages, &c. from the said messuage and land with the appurtenances, unto, into, &c. over and along the said close of

1812.

Saturday, Nov. 21st.

Tresspassquare clausum fregit, &c.; plea, that

defendant was

seised in his demesne as messuage, &c., in the parish, and that he and

of fee of a

all those whose

estate, &c. have a right of way for himself, his and their far

mers and tenants, occupiers

of the mes

suage, &c. over

the locus in quo messuage, &c.

to and from the

as appertaining thereto; replication, that de

fendant and all

those, &c. have

not the said

way as appertaining to the

said messuage,

&c Held that

the defendant's

shewing that he was seised in

fee of an an

cient messuage in the parish, to which a right

of way, as

pleaded, over the locus in quo

belonged, was evidence sufficient to support

his plea, although the messuage was let to and in the occupation of a tenant, and the defendant only occupied a newly built house in the parish at the time of the trespass.

Plea that defendant was scised in his demesne as of fee, &c. and that he and all those whose estate, &c. have a right of way for himself, his and their farmers and tenants, occupiers, &c. is good, without alleging that the defendant is occupier.

1812.

STOTT against

STOTT.

the plaintiff called the Lane, in which, &c. unto and into a certain common, &c., and back again, &c. as to the said messuage and land, with the appurtenances belonging and appertaining; and the said defendant Pilling, being so seised of his said messuage and land, with the appurtenances, and having occasion to use the said way with horses and carriages, and the other defendant Stott, as his servant, and by his command, at the said time when, &c. did pass from the said messuage and land, with the appurtenances unto, into, &c. through and over the said close of the plaintiff, called the Lane, in which, &c. unto the said common, and so back again, using the said way, there for the purposes and on the occasion aforesaid, as they lawfully might, and so the defendant proceeded to justify the trespass alleged, and the breaking of the gate which wrongfully obstructed the way. There was a fourth plea to the same effect, only claiming the prescriptive right of way from Pilling's messuage and land over the locus in quo to Whitworth and back again. The plaintiff after joining issue on the not guilty, and traversing the public right of way, 2dly pleaded in bar; as to the 3d plea, replied that the defendant Pilling and all those whose estate he now hath, and at the time when, &c. had of and in the said messuage and land, with the appurtenances, for the time being, from time immemorial have not nor have been used nor accustomed to have, nor of right ought to have had, nor ought the defendant P. still of right to have for himself and themselves, his and their tenants and farmers, occupiers of the said messuage and land with the appurtenances, and his and their servants, the said way, &c. as to the said messuages and land with the appurtenances belonging

and

and appertaining in manner and form as the said defendants have in their said plea alleged, and this the plaintiff prays may be inquired of, &c. There was the like replication to the 4th plea.

The facts proved before Le Blanc, J. at the trial, which gave rise to the question now made, were that the trespass was committed by the defendant Pilling, and his servants in passing over the locus in quo; that the defendant Pilling was the owner of an ancient messuage on his estate in the parish of Rochdale, to and from which the prescriptive rights of way stated in the 3d and 4th pleas led; but he had before then let that messuage to a tenant who was in the occupation of it at the time of the trespass stated; and he had about 10 years before built for himself a new house on a different part of the same estate, which he was occupying at the time. These facts came out upon the cross-examination of the defendants' witnesses; upon which the plaintiff insisted that the justification applied only to the new house occupied by Pilling at the time, and not to the old house, which was in the occupation of his tenant, and that she was entitled to a verdict upon the proof of their justification, as applied to the ancient house in the occupation of Pilling's tenant in the same parish. The learned Judge entertained some doubt on the question, as to the applicability of such evidence, but he suffered the cause to go on; and a verdict was taken for the plaintiff on the general issue, and the first special plea insisting upon the way as a public way; and a verdict for the defendants on the 3d and 4th special' pleas, with leave to the plaintiff to move to set aside the verdict for the defendants on the two last issues, and enter the verdict for the plaintiff on those issues.

1812.

STOTT

against STOTT.

A rule