1806. ROE dem. cersus RAWLINGS. Cornwall." On the other side of the letter was "An account of the estates set at a yearly rent within the parish of Padstow, belonging to Edmund Prideaux, Esq. and inter alia part of Trevethan--John Hellyar.— Conventionary rent for years, 21. Years to come, 20. Rent, 141. Books were also produced by the same witness, of Edmund Prideaux, the youuger, containing receipts of rent; in which was an entry," John Hellyar, for rent of Trevethan, from Michaelmas, 1727, per annum, 141. collected all to Michaelmas, 1734." There were other entries of receipts of this rent of 141. and at last, Total to Michaelmas, 1738, 141. There were also entries of rent received, and a lease granted of another part of Trevethan for 121. 5s. It was contended for the plaintiff, that these letters, indorsed by Edmund Prideaux, the younger, and the accounts, were a recognition by him that the ancient rent was 141, this being the same estate, which bound both Humphrey Prideaux the tenant for life and his lessee. By the counsel for the defendant, it was urged that this was not evidence between the present parties, it being res inter alios acta. The evidence being rejected, the plaintiff was nonsuited; and a rule having been obtained to shew cause why the nonsuit should not be set aside and a new trial granted, on the ground that this evidence was improperly rejected, "This is res BURROUGH and EAST shewed cause. inter alios actu, and the only cases in which such evidence of the declarations of third persons has been let in, are where the persons writing the accounts have charged themselves with the amount or with part of it. Here Hobart charges himself with the receipt of none of the rents. There several documents state the number of years of the lease, and this lease for such a number of years of Trevethan to Hellyar must have been by 1806. Roe dem. versus deed, and the counterpart ought to have been produced. In Outram v. Morewood,* in order to shew that the locus in quo was part of the lands formerly in the family of Zouch, an entry was produced, in the hand-writ- RAWLINGS. ing of Rowland Morewood, of the receipt of certain rents for the close, the identity to which it was necessary thereby to establish. The defendant claimed under Rowland Morewood, as to the rents, but the question was as to the right to dig coal under the land in which Rowland Morewood had no interest. There was a verdict for the defendant, and upon motion for a new trial, it was held that the evidence ought not to be received, because it was an entry by a third person which could not bind the opposite party. In some other cases, where an entry by parish officers of the receipt of money by officers of a township, from the officers of another township, of a proportion of church rates, made in a parish book, has been admitted, to charge the latter officers with the same proportion in future; that has been admitted because they are made by persons who charge themselves with the receipt of money, and put the book into the hands of those who may enforce the charge." LAWRENCE, J. “ Upon what principle is that but because it is improbable that any person should charge himself with any thing that is against himself, without foundation." Lord ELLEN BOROUGH, C. J. "You have no cir cumstance to shew that there is any motive to misrepresent. The charge against himself is only a circumstance to shéw his indifference and here he can have no interest, for he cannot use it for himself." EAST." Rowland Morewood was perfectly indifferent 1806. Roe dem. BRUNE versus RAWLINGS. in point of interest, yet notwithstanding that, and merely because the entries were by a third party, and he was not charging himself with any thing, the entries were held to be inadmissible; the other cases of Barry v. Bebbington, Stead v. Eaton, Warren v. Webb,‡ which proceed upon the ground that the party is charging himself, are the only exceptions to the rule, res inter alios acta shall never be made use of as evidence against third parties." The SOLICITOR GENERAL, LENS, Serj. and DAMPIER, contrà. "The question as to what was the rent previous to the year 1778, is material in the cause. Then this receipt is of rent in 1729; but it is said that this is not evidence of the rent in 1778: But when it is shewn that 141. was received for rent that year, it is evidence that more than 14s. was the value previously to 1778. Indeed the settlement is with a power to lease reserving the ancient rent, and the present value is the ancient rent until the contrary is proved, and that alone would have been sufficient to shew the lease to be void until the defendant shews that it was less; but as that was not urged at the trial, it will not be insisted now, that there ought to be a new trial on that ground. As to these accounts, it was the interest of each person having the leasing power to keep down the rent as low as possible, in order to enhance the value of his leasing power. It was their interest also to shew what was the rent, because that was a part of their title; and, therefore, we should expect to find amongst their papers an account of what each of the estates let for. This is a letter of the person who was steward of the estate, and it is not necessary to give extrinsic evidence in support of it. 4Term Rep. 514. † 4 Term Rep. 669. 2 Strange, 826, EAST cited also Calvert v. the Archbishop of Canterbury ;* Cur. adv. vult. And now the judgment of the court was delivered to the following effect, by Lord ELLEN BOROUGH, C. J. after stating the case. "The paper produced appeared to be written by a person in the confidential employ of the person to whom it was addressed, and it contained memorandums of payments and due's to the owner of the estate, and accounts of the terms outstand ing. The person to whom it was addressed, and in whose possession it was found, and by him handed down as a family muniment, was a person having an estate for life with a limited leasing power reserving the ancient rent; and this paper recites that the sum of 141. was payable on the rent or lease from Michaelmas, 1727. And the question is, whether this is admissible evidence, as against the person who now enjoys the estate by the virtue of the leasing power, to shew the value of the then letting rent? Ou this it must be observed, that the person who held the estate had a power of letting on lease, reserving the ancient rent; and this paper was adverse to the interest of the person in whose possession it was found; for every thing which raises the rent diminishes the value of the leasing power, and affords the heir or reversioner an opportunity of ascertaining the real value. The interest of the party therefore obviates all suspicion of its being a misrepresentation on his own side. The paper is also written by a confidential agent, at least, of the then owner of the estate. For it is indorsed January 25th, 1728; from Hobart, a particular of my estate in Cornwall," and is addressed to the Hon. Edward Prideaux, Esq., which is a recognition by the 2 Esp. N. P. 461. 1806. Roe dem. versus RAWLINGS. 1806. Roe dem. versus person to whom it was addressed, that the writer bore the character which he represents, and has that confidential situation which he states in the letter; though RAWLINGS. perhaps it does not import that he was steward; and the question is, whether this declaration by the then occupier of the estate recognising the contents of the letter, is good evidence of the value in this case? The party against whom it was produced, did not derive title from him. If he had, there would have been no question. But still it appears that this is not only free from the objection of interest, but that the person was not only disinterested in respect of this fact, but had an interest the other way; and therefore we think it is evidence to go to a jury. In many cases of facts difficult to be proved from length of time, the entire absence of any interest to induce a misrepresentation, has rendered the declaration of persons evidence after their death. As for instance, in a question of the age of a son who had made a will, which is evidence of a particular fact, and not of pedigree, the fact of the time when the son was born has been proved by the declarations of the deceased father. Thus, giving effect to the uninterested declarations of the father, under such circumstances, it has been held evidence of the son's being born at a certain time and being under age when the will was made. In that case the most that can be made of it is the knowledge of the father of the particular fact, and the total absence of interest to pervert the fact. So also in the case of a deceased rector, who states the value of tyihe in a book; this has been held evidence against the successor. Now that depends on the absence of any interest to mistate it; for the books would be no evidence in ordinary cases for the rector making the entry.And as these books and papers if they could ever meet the eye might have been used adversely to Edmund Prideaux, and not in his favour, he could have no interest in perverting them or misrepresenting any thing. |