3. Copies, what use may be made of. Ante, III. 2 (1); Post, VIII. IV. Hearsay. On the trial of an information against a sheriff of a county, for not executing a convict sentenced to death, a witness cannot be asked whether he has heard that it was the custom for the sheriff to be exempt from performing, or for another officer to perform, the duty in that particular county, although it has been proved that such other officer has in fact (under orders of the Court) always performed it within living memory. Rex v. Antrobus. 793 V. Deed, how far conelusive. 1. As against parties to it. Estoppel, 3. 2. As against persons claiming under it, but not parties to it. On appeal against an order of removal, where the respondents produce a deed of feoffment for the purpose of shewing a settlement by estate in the appellant parish, but the lands are described in the deed as situate elsewhere, the respondents (not being parties to such deed) may give parol evidence to shew that the lands really were within the appellant parish. Rex v. Inhabitants of Wickham. 517 VI. Parol evidence of written documents. 1. Evidence of identity without production. In an action by A. against O. for money had and received, the plaintiff proved that 0. admitted having received a bill which was the property of A., and paid it into his own banker's; the plaintiff also proposed to prove that O. had received credit with his banker for a bill similar in amount, and that there was no corresponding debit against O. in the banker's book, nor any credit given to O. for any bill to the same amount. Held, that the proposed proof was not admissible, A's bill not being produced. Atkins v. Owen. 35 2. What writing excludes parol evidence of the agreement. Appellants against an order of removal called a witness to give parol evidence of a hiring. On cross-examination, he stated that, at the time of the hiring, he and the servant went to the chief constable's clerk, who, in their presence and by their direction, entered the terms of the hiring in writing, but that neither party signed the entry. He did not state whether or not the writing was read over to them: Held, that this was not sufficient proof of the contract having been put into writing to exclude parol evidence of the terms. Rex v. Inhabitants of Wrangle. 514 3. Evidence of misstatement in a deed. Ante, V. 2. 4. Who to determine meaning of obscure handwriting. A question arising at Nisi Prius, from the obscurity of the handwriting, what the words of a written instrument produced in evidence really were, the Lord Chief Justice decided it, and refused to have it put to the jury. Remon v. Hayward. (See XIII. post.) 666 VII. Communications from party to cause to third party. Assumpsit, I. 1. VIII. Former orders made on predecessor of officer sought to be charged. For the purpose of shewing the liability of a sheriff of a county to execute or gibbet criminals, when commanded, orders made upon former sheriffs of the same county, requiring them to perform the said duties, and examined copies, from the Exchequer, of allowances by Chancellors of the Exchequer, of their cravings for the expenses of so doing, may be given in evidence; and that without first giving other proof of the judgments passed upon such criminals. Rex v. Antrobus. 795 IX. Presumptive evidence of a party being alive. Marriage. X. Evidence of customary reservations in a lease. Power, 1. XI. Evidence of printing and publishing newspaper under stat. 33 G. 3, c. 78. Statute, XII. (1.) XII. Evidence of gross negligence. Bailee. XIII. Evidence of a legal debt. A paper as follows-"I hold of M. T. 37%. to put into a savings bank for her," signed and dated, is evidence of a legal debt of 377. from the party signing to M. T., the money not having been put into a savings bank, but partly paid to the use of M. T.; and does not shew a mere trust; and M. T. may recover in debt, though parol evidence be given that the party signing had received the money to be applied, at his discretion, to the use of M. T. Remon v. Hayward, 666. (See Ante, VI. 4.) XIV. Evidence, how applicable to the record. 1 Plaintiff's title. What is material variance between declaration and evidence. Pleading, II. 5. 2. Whether party must prove new matter introduced by him without verification. Pleading, VIII. 2. 3. In particular actions. (1.) Debt. [1.] What is evidence of a legal debt. Ante, XIII. [2.] Time of usurious contract to be proved as laid in declaration. Pleading, II. 4. (2.) Trespass. What requisite to support issue as to locus in quo. Declaration for seizing pigs; plea, that defendant was possessed of a close named H. in which the pigs were eating, &c., and were taken damage feasant: replication, that the defendant was not possessed of the said close in the said plea mentioned, in which the pigs were alleged to be eating, &c., and issue thereon. There were several adjacent closes called H. Held, that the defendant was bound to shew that he was possessed of a close in which the pigs were eating, &c., and that it was not enough for him to show his possession of a close named H. Bond v. Downton. 26 (3.) Replevin. When party under whom cognizance is made is competent witness. Where distinct cognizances are made for the same goods under several parties, not appearing to be connected in interest, if one of the cognizances be abandoned at the trial, the party under whom it was made is a competent witness for the defendant. King v. Baker. 333 XV. What document a party is entitled to call for. Ante, II. XVI. Documents inoperative from insufficient execution used to refresh memory. Ante, III. 2. (2.) XVII. Land-tax assessments, when evidence of occupancy. Ante, II. XVIII. Competency of witness. Party under whom cognizance is made. Ante, XIV. 3, (3.) EXCEPTIONS. In a lease, what are. Power, 1. EXCHEQUER. Copies of allowances by Chancellor of, when admissible in evidence. Evidence, VIII. EXECUTION. I. Of deed, when party estopped from disputing. Deed, 2. II. Civil process. 1. For costs under stat. 33 G. 3, c. 5, s. 3. 2. Under stat. 4 & 5 W. 4, c. 62, s. 31, to (1.) When it may be taken out. Warrant, (2.) Whether before execution issued Court will order satisfaction to be entered on judgment roll. Warrant, II. 3. III. Criminal process. 1. Who bound to perform. Where a convict is sentenced to death, the proper officer, in default of express order, to do execution, is the officer who has the legal custody of such convict. Supposing that the Court may authorise another officer to execute, such authority must be given by express order, directing the second officer to execute, and sufficiently explicit for the first officer to be bound by it to surrender the custody to the second. It is not equivalent to such an order, if the clerk of assize, by direction of the Judge who has tried and sentenced the convict, shews to the sheriff of the county in which the offence was committed, not having the custody, a calendar signed by the Judge, with a minute of the sentence in the margin, at the same time delivering him a copy. Although the sheriff acknowledge the receipt of the calendar, and at the same time refuse to execute. Especially where the officer having the legal custody has previously received an order of the Judge, directing that a third officer shall do execution. The sheriffs of the county of the city of Chester have for many years executed all criminals sentenced to death for offences committed in Cheshire, by order of the Court trying the prisoners. Supposing them to have been bound, by custom, to execute as above, Quære, whether this custom was done away with by stat. 11 G. 4, & 1 W. 4, c. 70? [But now see stat. 5 & 6 W. 4, c. 1.] Rex v. Antrobus. (See Mandamus, IV. 798 2. Evidence of liability to perform. Evidence, VIII. 3. Prisoners were convicted and sentenced at the assizes for the county of Chester. The Court awarded execution to be done 1. Whether he can sue inhabitants under stat. 7 & 8 G. 4, c. 31. Statute. XXIV. 2. When liable to costs. Statute, XXVII. (3.) 3. When all must join in an application to the Court. By a deed of settlement, estates were conveyed to trustees to the use of A. for his life, remainder to such uses as he should direct by his will, the deed giving the usual powers for appointing new trustees in case of death, &c. A. devised all the real estates of which he had power to dispose, and all his personalty, to trustees (whom he also made his executors) to sell and invest the produce, and pay the interest to his widow during her life, and afterwards to stand pos sessed of the funds in trust for B. and C., share and share alike. A. died, leaving his widow surviving. Two of the executors proved the will. The last surviving trusted under the settlement died, leaving a son, to whom, as his heir at law, the legal estate in the settled property descended, but who never was appointed a trustee. Before and after the testator's death, an attorney was employed in business relating to the settled and devised estates, for which a sum of money was due to him: and he held the title deeds. After the testator's death, the son of the trustee under the settlement, and one of the executors, joined in an application to the Court, that the attorney might account for all sums received by him in respect of the estates, and deliver up the deeds to the trus tees for the said estates, on payment to him of any thing that might appear to be due from them. The other executor, and all the parties beneficially interested, objected to the application. The Court refused to interpose, the rights of the parties not being clear, and one executor not concurring in the motion. In re Bunting. FEME COVERT. Baron and Feme, 2. FENCES. Subject of dilapidations. Statute, XXXVI FEOFFMENT. 467 Stamp on deed, under stat. 55 G. 3, e. 184. Statute, XX. (1.) FINE. Adverse possession after fine by tenant for life. Statute, III. (1.) FIXTURES. 1. Meaning of "fixed furniture." A. bequeathed his leasehold messuage, with the grates, stoves, coppers, locks, bolts, keys, bells, and other fixtures and fixed furniture, to V. for life; and the household goods, furniture, plate, linen, china, books, wines, and liquors, and other properties in the messuage, not being comprehended under the preceding terms, fixtures and fixed furniture, to V. absolutely. There were in the messuage looking-glasses, standing on chimney pieces, and nailed to the wall; and a book-case, standing on (but not fastened to) brackets, and screwed to the wall: Held, that V. took only a life interest in these. Birch v. Dawson. 2. Trover for recovery of. 37 1. Under a power, when good. Power, 1. 2. By trus.ces, under turnpike act. Statute, XXXIX. 3. What is an offensive trade within covenant of lease. Trade, 1. LETTERS. Between what parties evidence. Assumpsit, I. To justices. MANDAMUS. 1. To put in suit constable's bond. Bond, 1. 2. To levy rate by distress. (1.) A local act gave power to commis sioners to raise money for paving, lighting, and watching a town, by rating and assessing the proprietors of houses according to the value at which the houses were taxed to the poor. It also empowered them to assess and levy a rate on certain proprietors for the purpose of certain improvements, such rate to be levied and assessed in the same manner as the other rates. In default of payment, a justice was authorised to issue a distress warrant. The act also provided, that, in case any person thought himself ag grieved by any rate or assessment, he might appeal to the commissioners, who were authorised to give relief; and further, that any one who thought himself aggrieved by any thing done in pursuance of the act might appeal to the quarter sessions. The commissioners assessed a proprietor to a rate levied for the purpose of the improvements, at an annual value above that at which he was assessed to the poor: Held, Taunton, J., dissentiente, that, on his refusing to pay, a justice might be required by mandamus to issue a distress warrant, the proprietor not having appealed. Rex v. Trecothick. 405 13 G. 3, c. 78, ss. 45, 67, made upon the occupier of lands within his district, if it appear that, in the magistrate's belief, and in fact, there is a legal doubt as to the occupier being liable to contribute to the repairs of the parish highways, and that the magistrate is likely to be sued if the warrant be granted and acted upon: and this, although the occupier has not appealed against the rate. Rex v. Greame. 615 [2.] On motion for a mandamus to justices to grant a distress warrant for levying a highway rate, it appeared that the rate was contested, on the following grounds: 1st. The lands in respect of which payment had been refused, were part of a district inclosed thirty-five years ago by act of parliament, having none but private roads, which were repaired by the landholders, and never having been assessed to the highway rate. 2d. No statute duty had been called for in respect of these lands, before making the present rate. 3d. The special session at which the order for making such rate was signed, had been convened without notice from the high constable. 4th. The order was signed by two persons not stating themselves to be justices. 5th. The rate was not dated. The occupier against whom the warrant was applied for had not appealed to the sessions, but he threatened the justices with an action if they granted a warrant, and the opposite party made no express offer to indemnify them. Held, that a mandamus ought not to go, it being doubtful whether, upon some objection among those taken, the justices might not be liable to an action if they granted the warrant. Rex v. Mirehouse. 632 (4.) When doubt of beneficial occupancy. A landlord permitted his tenant for years under a lease expiring in April 1835, to give up the lands and farm-house in October 1833, paying rent only until the day of quitting, and making a further payment and giving up the compensations he would have been entitled to as an outgoing tenant, in order to indemnify the landlord for loss to which he was subjected by the determining of the lease. The landlord did not take a new tenant, nor occupy the premises, except by putting a man into the farm-house to take care of it. The value of grass and clover on the lands from October to April was 601. After the tenant's departure, the landlord was rated to the poor as an occupier of the premises. He refused to pay the rate, but did not appeal; and, on his being summoned before two justices, they, after hearing the ease, declined granting a distress warrant. On motion for a mandamus to them to grant such warrant, Held, that this Court ought not to interfere, the justices having heard and exercised their judgment upon the application, and it being doubtful whether the landlord was properly rated as a beneficial occupier. Rex v. Morgan. 618(n.) 3. To appoint vestrymen elected by inhabitants. Statute, XXI. II. To Quarter Sessions. 1. To hear appeal against poor rate, abandoned by parish officers. Poor, I. 3. 2. To enforce judgment of previous ses sions. In the absence of any particular restriction, a subsequent quarter session has power to enforce by process the judgment of a preceding one; and this Court will grant a mandamus to the subsequent session to issue such process, if there appears to have been no unnecessary delay in applying for it. Rex v. Justices of Warwickshire. 768 (See Statute, XXIII.) 3. To enforce conviction. Statute, XXIII. III. To Sheriff. To assess compensation under local act. Statute, XXXVIII. IV. To Corporation. To allow inspection of muniments. An information being filed against the sheriff of the county of Chester, for not executing a criminal condemned to death for felony committed in the county, the Court refused to issue a mandamus to the corporation of the city of Chester to allow an inspection, on the defendant's behalf, of its muniments, so far as they related to an alleged obligation of that corporation or its officers to execute such criminals, though it was sworn that the muniments were believed to contain matter important to the defence, and though the party applying for the inspection was a freeman, who had demanded it in that character, stating at the same time, that his object was to obtain information for the benefit of the defendant. Rex v. Antrobus. 789 (See Execution, III. 1.) MARKET OVERT. Recovery of stolen property. Property feloniously taken from the plaintiff was sold by the felon to the defendant, who purchased bona fide, but not in market overt. The plaintiff gave notice of the felony to the defendant, who afterwards sold the property in market overt; after which the plaintiff prosecuted the felon to conviction: Held, that the plaintiff might recover from the defendant the value of the property in trover. Peer v. Humphrey. 495 MARRIAGE. Presumption of party being alive. Respondents having proved the settlement of a female pauper by marriage, it was shewn, in answer, that the husband was previously married, and that a letter had been written by his first wife, bearing date twenty-five days before the second marriage, from Van Diemen's Land. The sessions thereupon quashed the order. Held, that upon the evidence given, the sessions might presume that the first wife was living at the time of the second marriage, and find against the settlement. Rex v. Inhabitants of Harborne. MARRIED WOMAN. 540 Ordered to do execution after conviction in county of Chester. Execution, III. 3. MASTER. 1. Taxation of costs by. Costs, 14. (1). |