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the Holy Trinity and St. Margaret's, Hull, in the West Riding of the county of York; and the Sessions, on appeal, confirmed the order, subject to the opinion of this Court upon the following case.
The respondents having proved that the pauper had acquired a settlement in the appellant parish, the counsel for the latter, upon the cross examination of the pauper, were proceeding to shew that he had in the year 1813 or 1814, acquired a subsequent settlement in a third parish, by the occupation of a tenement, and to prove what rent he paid, The respondent's counsel thereupon interposed, and asked the pauper, whether the contract under which he held the tenement was not in writing; and upon his answering that it was; they objected, that no parol evidence could be received upon the subject, but that the document itself must be produced, or the loss of it proved. The appellant's counsel in reply, contended, that they were not examining as to the contents of the document, with which they had nothing to do; that all they proposed to prove was, the fact of the occupation, and the amount of the rent of the tenement; and that they were at liberty to prove so much by the cross-examination of the pauper, without any reference to the written agreement. The Court, however, were of opinion, that the written agreement ought to be produced, or its absence accounted for, and that neither being done, the parol evidence was not admissible. The evidence, consequently, was rejected.
Blackburn, in support of the order of Sessions. The Sessions were right. The evidence was inadmissible. The ground of removability created by the statute 13 & 14 Car. II., c. 12, namely, the party's coming to settle in a parish upon a tenement of less than 101. yearly value, is applicable to this case; for the evidence of the character in which the pauper held the tenement, went to the very question of settlement or no settlement, and was, in fact, the evidence which the appellants endeavoured to elicit from the pauper,
and which the Sessions refused to hear. The meaning of the statute is, that the party comes to settle by renting or holding a tenement in the character of tenant; Rex v. Bowness (a), Rer v. Glastonbury (6); here the pauper's character of tenant was constituted by, and described in, a written agreement: consequently, the agreement itself was the only legitimate evidence of the fact that he filled that character. [Bayley J. The appellants did not inquire into the terms or contents of the written agreement; they simply asked a question as to the fact, whether the pauper had or had not been tenant of premises in a particular parish : surely, in reply to that question, the witness ought to have been allowed to say, “ I was the tenant of A.”] He could not state that he was tenant, without shewing how he was tenant (c); and that would have been giving parol evidence of the contents of the agreement. In Rippiner v.Wright,(d) where an agreement on unstamped paper had been lost, it was held, that no parol evidence could be given of its contents, even though it had been destroyed by the wrongful act of the party who took the objection; and in Rer v. Castle Morton(e); an unstamped agreement in writing, for the purpose of letting a tenement at a certain rent, being lost, it was held, that parol evidence of its contents was not admissible to shew the value of the tenement: the ground of those decisions being, that the contract there, was, as it is here, not a collateral matter, but of the very essence of the case. So in Brewer v. Palmer (f), where premises had been demised by an agreement in writing, but not on stamped paper, it was held by Lord Eldon, that the plaintiff was bound to give the writing in evidence; and the writing not being stamped at the trial, he nonsuited the plaintiff, (a) 4 M. & S. 212.
faut qu'elles soient rédigées par (6) 1B. & A. 484.
écrit. Danty, Traité de la Preuve (c) Il est indubitable que le bail par Témoins en Matiere Civile, emphyteutique, le bail à cens, et le ch. xiv., s. 14, 3d edit. 318. bail à rente, étant des contrats, on (d) 2 B. & A. 478, n'est pas reçu à les prouver par té- (e) 3 B. & A. 588. See Cooke moins, non plus que les clauses que v. Tanswell, 2 J. B. Moore, 513. l'on soutient en faire partie ; il (1) 3 Esp. N. P. C. 213.
and would not allow him to go for use and occupation generally. [Bayley, J. Because there the terms of the use and occupation must have been proved, and they would appear from the written agreement.]
Coltman, contrà. The sessions carried the rule of law too far in rejecting the evidence in question. The inquiry made of the witness, did not refer to the contents of the written agreement, but simply to a fact which was within his knowledge, independently of any writing whatever. In all the cases cited on the other side, the attempt made, was to give parol evidence of the contents of a written instrument, which was plainly inconsistent with the rule of law, that the contents of a written instrument must be proved by the production of the instrument itself. A case much more analogous to the present, is that of Butcher v. Jarratt (a). There, in trover for the certificate of a ship’s registry, it was held, that the certificate might be proved by the production of the registry from which it was copied, though no notice had been given to produce the certificate itself; and the distinction taken in that case, by Chambre, J., applies pointedly to the present. He said, “there is an essential difference, as I conceive, between the mode of proving a very general, or a very minute description of a written instrument. The rule, undoubtedly, is, that no evidence can be received of the contents of a written instrument, but the instrument itself. But in this case the plaintiff declared in trover for a written instument, describing it generally, and not referring to its contents, of which evidence could not have been received, as no notice had been given to the defendant to produce the instrument itself. I think, therefore, the evidence was properly admitted.” Davis v. Reynolds (6), is an instance illustrative of the inconvenience of holding this rule of evidence too strictly; and it was there held, that where goods consigned to ., upon their arrival, were landed on the defendant's wharf, the plaintiff, in an action of trover, might (a) 3 Bos. & Pul. 143.
(6) 1 Stark. N. P. C. 115.
prove his title by parol, although the bill of lading which had been indorsed to him could not be received in evidence for want of a stamp. (Here the Court stopped him.)
BAYLEY, J.-—The contents of this written agreement, undoubtedly, could not be proved by parol; and, therefore, it was properly held, in the cases which have been cited, that where such a written agreement was in existence, the terms of the tenancy, or the amount of the rent, could be proved only by the production of the agreement itself. But the rule of law does not go so far as to prevent the admission of parol evidence of the fact, that the relation of landlord and tenant existed between particular parties, at a particular time, in a particular parish. I think, decidedly, that proof by parol of the fact of the pauper's having been tenant, was receivable, and, therefore, that the sessions were wrong.
The other Judges concurred.
Order of Sessions quashed (a).
(a) And see Rex v. St. Paul's, 237; Ramsbottom v. Tunbridge, 2 Bedford, 6 T. R. 452; Alves v. M. & S. 434; 4 Starkie on EviHodgson, 7 T. R. 241; White v. dence, 81 ; 1 Phillipps, Evid. part Wilson, 2 Bos. & Pull. 118; Hodges ii.chap. 9 ; Peake, Evid., 243, (4th v. Drakeford, 1 N. R. 272, 3 ;. edit. 275;) Roscoe, Evid. 5, 6; Doe d. Wood v. Morris, 12 East, Mann. N. P. Digest, 2d edit. 131.
The King v. The Inhabitants of RINGSTEAD. A residence of On appeal against an order of two Justices, for the forty days,
removal of Elizabeth the wife of William Saunders, and previous to the passing of their four children, from the parish of Kimbolton, in the 6 Geo. 4, c. 57, county of Huntingdon, to the parish of Ringstead, in the upon a tene
county of Northampton, the Sessions confirmed the order, more than 101. subject to the opinion of this Court, upon the following a year, by a party charged case. to, and having paid parochial rates, will not confer a settlement, unless all the 40 days are subsequent to such payment.
The pauper's husband, who had absconded previously to the making of the order of removal, hired a tenement after Lady-day, 1825, in the appellant parish, of the annual value of 101. and upwards, from Lady-day 1825, to Lady-day 1826, and went to settle upon it on the 4th of May 1825, being upwards of forty days before the passing of the 6 Geo. 4, c. 57, (22d of June, 1825.) A rate was made for the relief of the
which allowed on the 27th of May, 1825, and paid a few days afterwards, being less than forty days before the passing of the said statute ; but the requisites mentioned in the 59 Geo. 3, c. 50, were not complied with. On the 2d of March, 1825, a church-rate was made, at a parish meeting for the parish of Ringstead ; and on the pauper's husband coming into the parish, on the said 4th of May, 1825, his name was inserted in the church-rate by the churchwardens, and the rate was afterwards paid by him. If the Court shall be of opinion that a settlement was gained by either of such ratings, or paying them, the order to be confirmed; if otherwise, the order to be quashed.
Nolan, in support of the order of sessions. The sessions were of opinion that a settlement had been gained ; and it is submitted that they were right. It was held, in Rex v. St. Pancras (a), that the 35 Geo. 3, c. 101, s. 4, did not prevent a person from acquiring a settlement by paying public parochial taxes in respect of a tenement above the yearly value of 101., although there was no residence for a whole year, as required by the 59th Geo. 3, cap. 50. That case, therefore, would clearly be decisive of the present, but for the 6th Geo. 4, cap. 57, which was passed subsequently to that decision. That statute, it must be admitted, has abolished the settlement which might previously be acquired by the renting of a tenement above the annual value of 101., a residence of forty days upon it, and a payment of
(a) 3 D. & R. 343; 2 B. & C. 123 ; 2 D. & R. M. C., 28.