The Corpora- EJECTMENT on the title to recover possession of a dwelling-house and school-house, tried before Doherty, C. J., at the Summer Assizes of 1845, for the county of the city of Waterford. The facts of the case fully appear in the judgment of the Court. tion of W. had immemorially appointed a schoolmaster, and supplied him with the means of dis. trust imposed The principal objection raised at the trial was, as to the admissicharging the bility of certain entries in the books of the Corporation of the city of Waterford, in reference to the appointment of a schoolmaster, and the stipend paid to him, and the building and repairing of a schoolhouse; and also in reference to the granting of a sum of £200 to put the dwelling-house thereto attached and school-house in repair; and also an entry, that a lease should be granted to the defendant for a term of years, provided he should be continued so long master of the school, with a covenant of re-assumption on the part of the Corporation. on him; the defendant having been ap. pointed to the office, aud having been put in possession of a house, the taxes and repairs of which, it was the duty of the Corporation to These entries having been admitted as evidence, Counsel for liquidate ;Held, in an the defendant excepted thereto, and insisted that no sufficient ejectment on evidence had been given to entitle the plaintiffs to a verdict, no cover possesion evidence being offered of any payment of rent by the defendant to by the Corpo- the plaintiffs at any time within twenty years before the bringing of the action, and they called upon the learned Judge to direct a verdict the title to re ration of the house, that entries in the Corporation for the defendant on that ground; or that he should, at all events, books were leave a question to the jury, to say whether a grant or conveyance not admissible as evidence by had been made by the Corporation of the premises, upon trust that the Corpora- the same might be used and occupied as a school-house by the master tion to prove their own rights. Held also, that the defendant was not in such for the time being; or that he should leave it to the jury to say whether the defendant was a servant of the plaintiffs or removeable at their will and pleasure; and, that in case they should not be of that opinion, to find for the defendant: but the learned Judge refused to leave such questions, or give such direction, but told the the Corporation as would jury that the matters given in evidence were sufficient in law to justify them in entitle the plaintiffs to a verdict; whereupon Counsel for the defendreading this ant excepted. privity with evidence against him. Alcock and Martley, for the exceptions. The entries in the Corporation books were no evidence against CORPORA- FORD บ. PRICE. the defendant, he not being a member of the Corporation : 1 Stark. H. T. 1846. Queen's Bench. Evid. 341; 2 Phil. Evid. 122; Mayor of London v. The Mayor of Lynn (a); Attorney-General v. The Corporation of Warwick (b); Hunt v. Andrews (c); 12 Vin. Abr. 90; Outram v. Morewood (d); in that case Lord Kenyon says: "Evidence of this kind can only be "admitted to restrain, not to advance, the right of the party who "makes it. What a man does in his closet ought not to affect the "rights of third persons; there is only one instance in which this is "allowed, namely, the books of an incumbent respecting his tithes, "which may be evidence for his successor." The Corporation stands here in the same position as a private individual: 12 Vin. Abr. 90; Mayor of Southampton v. Graves (e); there an application was refused, to allow a stranger to the Corporation to inspect their books, and it was refused on that ground. The fact of the defendant being tenant to the plaintiffs does not place him in that species of privity which would entitle the plaintiffs to make use of these entries. The defendant was, however, entitled to a direction in his favour, as neither payment of rent had been proved for the last twenty years, nor had any evidence been given of the manner in which the defendant had obtained possession; the Statute of Limitations under such circumstances is a good defence: Lessee Ellis v. Bruce (ƒ); Lessee Moore v. Doherty (g). A question also should have been left to the jury, as to whether a grant by the Corporation ought not to be presumed, as the defendant had a freehold in his office: Doe d. Thanet v. Gartham (h); and the house is incident to the office: Co. Lit. 49, a; and as this question was not left to the jury, there ought to be a venire de novo. Lynch and George, contra. These entries were admissible, not to prove a right, but as proof of usage; they were admissible, being made in the ordinary course of duty. The defendant claims by virtue of his appointment to the office of schoolmaster, and says there was a dedication of these premises for that purpose, and the plaintiffs only referred to these entries to show acts done by the Corporation in reference to them. This case, therefore, is quite different from the cases cited, for the defendant here claims in privity with the plaintiffs, and claims in (a) 1 H. Blac. 215, n. (c) 3 B. & Al. 342. (e) 8 T. R. 590. (g) 5 Ir. Law Rep. 449. (6) 4 Russ. 222. (d) 5 T. R. 123. (f) 5 Ir. Law Rep. 402. (h) 8 Moore, 368. TION OF H. T. 1846. right of that privity: Price v. Lord Torrington (a); Doe v. Queen's Bench. Turford (b). It comes within the class of cases there referred to CORPORA- by Taunton, J.; "A minute in writing made at the time when the "fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances, "which render it probable that the fact occurred, is admissible in "evidence." WATER FORD PRICE. Jan. 3. These books are similar to Manor Court books, which are evidence: Roe v. Parker (c); Rogers v. Allen (d); Price v. Littlewood (e). All the cases cited qualify the rule, that if the entries be of a public nature they are admissible, and these were essentially of a public nature. The matter, however, upon which those books were offered is quite immaterial, and the Court will not grant a new trial on the ground that evidence has been admitted which ought to have been rejected, if, exclusive of such evidence, there be enough to warrant the finding of the jury: Doe d. Lord Teynham v. Tyler (f); Crease v. Barrett (g); Alexander v. Barker (h). As to the twenty years' possession, no such possession was proved; the defendant himself showed, on the contrary, that he claimed through the plaintiffs, and no grant could be presumed in his favour, as this was a mere permissive right to keep the house: Moore v. Doherty. Martley replied. BLACKBURNE, C. J., delivered judgment. Cur. ad. vult. This case comes before the Court upon a bill of exceptions. It was an ejectment on the title brought by the Mayor and Corporation of Waterford to recover a dwelling-house and school-house situate in the county of the City of Waterford. Several exceptions were taken at the trial; but it appears to us that there is only one to which it is necessary that we should apply ourselves; for with the exception of that one, we are of opinion that they should be all overruled. That exception relates to the admission of entries given in evidence on the part of the lessors of the plaintiff. It is necessary that I should advert shortly to the evidence given at the trial, to show under what circumstances these entries were TION OF FORD ข. PRICE. tendered and received. It appears that in 1764 a person of the H. T. 1846. Queen's Bench. name of Scroder became entitled to the premises in question, by virtue of a lease for three lives with a covenant for perpetual CORPORArenewal, which in 1786 vested in the Mayor, Sheriffs and Citizens of Waterford; that in 1799 the Corporation obtained a renewal of that lease. Payment of rent to the head landlord by the Corporation was admitted by the defendant. An affidavit made by the defendant was then read in evidence on behalf of the lessors of the plaintiff. This affidavit was made under the following circumstances:-The defendant claimed an annual stipend or salary as a lecturer or preacher in the Church of St. Olaves in the City of Waterford, and also a salary as master for the time being of the Waterford Latin School, which situations he held under the appointment of the Corporation at a certain salary consisting of two separate sums. Under the same right he claimed a dwelling-house and school-house free of rent, and that they should be kept in repair at the expense of, and the taxes thereon should be paid by, the Corporation. The Corporation having withheld this salary, the defendant applied to this Court for an order under the 3 & 4 Vic. c. 108, s. 101, to the Corporation, to execute a bond under their common seal to secure the payment of it, and also to oblige the Corporation to pay the taxes and keep the premises in repair. It was to ground an application for a mandamus to that effect that this affidavit was made. It sets out a notice served on the Corporation for that purpose, and contains the particulars I have just stated. Then, after a recital of other matters which it is unnecessary for me to refer to, it states, "Whereas during seven "years next before the 5th of June 1835 an annual stipend of £100 "hath been paid by the corporate body of the county of the city of "Waterford (being one of the corporate bodies named in schedule A) to "the master of the Latin School, one moiety of said sum being paid to "him in his capacity of master of said school, and the other moiety "being paid to him in his capacity of minister or lecturer of the Church "of St. Olaves; and whereas during seven years before 5th of June "1835 certain allowances have been granted by the said corporate "body to the master of the Waterford Latin School, that is to say, a "house and appurtenance situate in Stephen-street in said city, called "the school-house, and built and kept in repair from time to time by "the said corporate body for that purpose, with a residence for the "master thereunto annexed, which said house the master was entitled "to by the ancient usage of the said corporate body, to hold free of "all rent and taxes." No other question was raised otherwise than I have stated, nor was any other right claimed to the possession of the house, in the H. T. 1846. proceedings in the mandamus. The Court, on hearing that applicaQueen's Bench. tion, made a rule that the applicant should have security for the sums CORPORA- claimed, and the Court not having any power to make an order for TION OF WATER- บ. PRICE. the repairs and the payment of the taxes, nothing was said upon that subject. The conditional and absolute orders were both given in evidence. The plaintiff then tendered the entries in the Corporation books which are the subject matter of this exception. It is quite essential that we should see the state of the evidence at that stage of the case. As to the law applicable, there can be no doubt; whatever there may be as to its application to the case before us. In Phillips on Evidence it is stated correctly. It is there said: 66 66 Corporation books are evidence by way of admissions between "members of the Corporation; they are receivable also to prove "entries of a public nature. They cannot in general be adduced by a Corporation in support of its own rights or privileges against "strangers," And in the case in 1 H. Blac. 215, the defendants were not permitted to give in evidence their Corporation books to prove their own rights. So in the case of Marriage v. Lawrence (a), the entries were private entries made in public books; and in Rex v. Inhabitants of Debenham (b) this doctrine is clearly recognised. The rule thus established is plainly applicable to the case now before us, which is that of a claim by the Corporation to property as their private estate, which vested in them prior to 1792 by purchase, and they are now asserting their title to it as any individual would his right to his private property. Then, the next question is, did the defendant stand in any relation to the Corporation that, according to established principle, would justify them in reading this evidence against him? He was not a member of the Corporation, or a corporate officer, or a person whose character or position would give him access to these books, so as to justify the conclusion that he was privy to their contents. It is not perhaps very easy to say in what character he stood; but we must take the claim of right, as the Judge was bound to take it at this stage of the trial, without regard to the evidence subsequently given. All the Judge could do was to look to the evidence at the time when he was called on either to admit or reject it. The case made by the defendant by his affidavit was, that the Corporation had immemorially appointed, and been bound to appoint, a schoolmaster, and to supply him with the means of discharging the trust imposed on him, and that they had appointed him, and had in pursuance of their obligation |