indenture of apprenticeship, for the whole term of seven years; that when the apprenticeship expired, the pauper asked his master John Connell, who was then a rated inhabitant of the parish of Denio, but did not reside or pay taxes there when the appeal was tried, for the indenture, who said that he had not got it, but that it was with the overseers of Llanbeblig. No other witnesses The were called, nor any further evidence given respecting it, except that the present parish officers of Llanbeblig proved at the trial, that they had searched among the papers belonging to that parish for the indenture, and that it could not be found; and that all the parish books and papers of about that time were missing. The appellant's solicitor objected to the declaration of John Connell to the pauper, that he had not got the indenture, and that it was with the overseers of Llanbeblig, being received, and urged that John Connell himself ought to have been called to prove that fact: but the Court overruled the objection, and received the evidence. appellant's solicitor contended that the loss of the inden- ture had not been sufficiently proved or accounted for, to let in parol evidence of its contents, and that it was incumbent on the respondents to prove the assent of two justices to the binding of the pauper, before he could gain a settlement by service under it. The Court confirmed the order of removal, subject to the opinion of the Court of King's Bench, as to the correctness of the conclusion, whether the declarations of John Connell to the pauper were properly received in evidence; whether, according to the foregoing facts, the loss of the indenture was sufficiently proved, or accounted for, to let in parol evidence of its contents; and whether it was not incumbent on the respondents to prove the assent of two justices to the binding of the pauper. Nolan, in support of the order of sessions. There was sufficient done in this case to let in parol evidence of the 1827. The KING บ. DENIO. 1827. The KING บ. DENIO. contents of the indenture. Every possible search was made for the indenture itself, for the pauper demanded it of his master, who informed him that he had not got it, but that it was in the possession of the parish officers of Llanbeblig; and they searched in the place, where alone it could be expected to be found if it was in existence, and could not find it. The declaration of the Master under such circumstances, was part of the res gesta, and might be fairly presumed to be true, because as he was at the time a rated inhabitant of the parish, he was speaking against his own interest. In Rex v. Morton (a), in order to establish a settlement by apprenticeship, it was proved that only one part of the indenture was executed, and that application to the pauper, (who was then ill, and died soon afterwards), to know what had become of it, he declared, that when the indenture expired, it was given to him, and he had burned it long since; and it was also proved, that inquiry was made of the executrix of the master, who said that she knew nothing about it and it was held, that this proof was sufficient to let in parol evidence of the contents of the indenture. Now, if the declaration of the executrix of the master was admissible evidence in that case, à fortiori the declaration of the master himself was admissible evidence in the present case. Patteson, contrà, was stopped by the Court. upon BAYLEY, J.-I think it impossible to support the decision of the sessions in this case. Rex v. Morton is very distinguishable. There the application to the executrix of the master was made by the parish officers; here it was made by the pauper. The evidence here was mere hearsay; and it would be contravening the first principles of the law of evidence, to hold it admissible. Connell, the master, who is supposed, to have given the information stated by the pauper, was alive; and ought to (a) 4 M. & S. 48. have been called to give his own account of the transaction. In order to let in parol evidence of the contents of a written instrument, it. must be proved that reasonable diligence has been used, and due search made, to find the instrument itself. That was not proved in the present case. Much more was done in Rex v. Morton than was done here. Rex v. Castleton (a), comes much nearer the present case. There it was proved that the indenture was of two parts, that one had been destroyed, and that the other had come to the hands of A. B., who, when asked for it, said she could not find it. But A. B. was not subpoenaed, and upon that ground the evidence was deemed insufficient. Upon that authority, and upon general principles (b), therefore, I am of opinion that the order of sessions must be quashed. The other Judges concurred. (a) 6 T. R. 236. (b) If I make a gift of lands in tail, or a lease for life or for years, so long as the particular estate has continuance, the donee or lessee is entitled to the custody of the instrument by which that estate was created. If my interest in the conditions or covenants annexed to the grant require that I should have the possession of an instrument, by which those conditions or covenants can be more conveniently enforced, I may take a counterpart of the indenture from the donee or lessee. On the determination of the particular estate, the representatives of the donee in tail, or of the lessee for life, or the lessee for years, or his representatives, are mere strangers to the land, and have no interest in any deeds relating to it; and though I have no longer any interest in the conditions or covenants, yet Order of Sessions quashed. the mere fact of my having assert- 1827. The KING บ. DENIO. 1827. The KING บ. DENIO. the advowson; and a counterpart, make profert of the grant; because that proves the presentation to be made in my right, and me to be in possession. Quod fuit negatum per omnes justiciarios; and they said that the law was clear, that it was not necessary for the grantor to show the deed. Quod nota; and so it hath been adjudged divers times, ib." S. P. Mich. 14 H. 4, fo. 10, pl. 9; Plowden, 149 a. In Rer v. North Bedburn, Cald. 457, Buller, J., is represented to have said, "After the expiration of the lease, the lessee, the pauper, was entitled to it in strictness." But this is directly contrary to Co. Litt. 47 b, 48a; 4 Co. Rep. 54 a. And see Brewster v. Sewell, 3 B. & A. 296. 1 Co. Rep. by Fraser, 7 n. After a rule to bring in the body, defendant has the same time to justify bail, as the sheriff WHITTLE, Assignee of NASSAU, Esquire, late Sheriff of Essex, v. OLDAKER, and others. 7.478 THIS was an action on a bail bond. The declaration stated, that on the 28th of November, 1826, plaintiff sued out a latitat against defendant Oldaker, directed to the sheriff of Essex, returnable on Monday next, after fifteen days of St. Hilary; that this writ was duly indorsed for bail for 5411. 5s.; that the writ was delivered to the sheriff, who arrested Oldaker, and took bail for his appearance at the return of the writ, from Oldaker, and the two other defendants as his sureties, by a bond, conditioned for the appearance of Oldaker at the return of the writ. bind the plain- The declaration then stated the non-appearance of Oldtiff to proceed aker, and the assignment of the bail bond. by attachment; to bring at the expiration of that rule, he may sue upon the bail-bond. Plea, 1st, non est factum, and issue thereon. 2dly, comperuit ad diem. Replication to the 2d plea, nul tiel record of the said supposed appearance. Award of venire, on issue triable by the country. Rule to produce the record on Monday next after fifteen days of the Holy Trinity (25th June). Record produced, and judgment accordingly. Marryat had obtained a rule, calling on the defendants to shew cause, why the judgment "that they had produced the record of appearance," should not be set aside, upon an affidavit, stating the following facts: The writ was returnable on Monday next after fifteen days of St. Hilary, being the 29th of January. The rule to return the writ expired on the 5th of February, and on the same day, bail was put in, and notice of bail served. On the 6th, notice of exception against the bail was served, and the sheriff was ruled to bring in the body. On the 7th, notice of justification of bail was served for the 10th, but was afterwards abandoned; and on the 8th, a fresh notice of justification was served for the 12th. On the 12th the bail justified, and on the same day, before the rule for bringing in the body had expired, and after the bail had justified, the plaintiff took an assignment of the bail bond, and issued writs thereon against the original defendant and the bail. A rule for the allowance of the bail was also drawn up, and served on the 12th; but it did not appear whether that rule was served before or after the writ was sued out. The question was, whether the bail had justified in due time, so as to make the subsequent assignment of the bail bond, and the proceedings thereon, irregular. Campbell and Rowe shewed cause against the rule-contending that the bail had, under the circumstances of the case, justified in due time, and that the plaintiff's proceedings upon the bail bond were irregular. It is well established in practice, that in bailable actions, the rules upon the sheriff, and the time allowed the defendant for putting in and perfecting bail, are concurrent, and expire together. In this case the sheriff could not have been 1827. WHITTLE vj OLDAKER. |