1818.

The KING against The Inhabit

ants of NETHERTHONG.

considered as having made it so with all the legal inci-
dents belonging thereto, amongst which is its liability
to be repaired by the inhabitants of the district who
repair the other public highways there. I think that
the tolls, in this case, are only an auxiliary and subor-
dinate fund, and that the persons whom the public have
a right to hold liable are the inhabitants of the town-
ship, who may afterwards apply to this court for relief,
under the 33d clause of the general turnpike act.
It is,
however, contended that, in this case, the obligation to
repair did not attach upon the inhabitants of Nether-
thong; because, previously to the passing of the local
act, no part of the road was there situate, and therefore
the liability was on the inhabitants of the other town,
out of which the old road had been diverted. It would
be quite enough, in answer to this, to say that there is
no fact here stated which shews that the road in question
was substituted for another road which now no longer
exists. But I think also, that the 63d clause, referred
to in the 13 G. 3. c. 84., relates to diversions made either
by writs of ad quod damnum, or by the powers given to
two justices by the statute of the 13 G. 3. c. 78. s. 19.
Upon the whole, I am of opinion that the inhabitants
of Netherthong are liable to the repair of this road, and
that the clause making the trustees liable does not
furnish any defence to the present indictment.

HOLROYD J. I am of the same opinion. If this had been an indictment against the parish at large, it is quite clear that they would have been liable for the repair of this road; for there are no facts stated which shew that the obligation is thrown on any other persons. Then, the prescription stated in the present indictment

shews

shews that this township is, as to all roads within it, a parish. And therefore, when a new highway is brought into it, it becomes subject to the lex loci, as to the repairs. Then, if so, inasmuch as there is not any thing to shew that by law either the trustees, or the inhabitants of any other township, are liable to repair this road, that burthen must fall upon the present defendants,

Judgment for the Crown.

1818.

The KING against The Inhabitants of NETHERTHONG.

The KING against The Inhabitants of DEBENHAM. Wednesday,

ON an appeal against an order of two justices, by which John Driver, Margaret his wife, and John their son, were removed from the parish of Debenham to the parish of Kenton, in the county of Suffolk, the sessions quashed the order subject to the opinion of

this court on the following case.

The pauper had gained a settlement by hiring and service in the parish of Debenham, unless it could be shewn that his father at the time resided in that parish under a certificate from the parish of Kenton. It was proved that no such certificate could be found in the custody of Debenham. The pauper's father, James Driver, proved, that in the year 1771, having been removed from Debenham to Kenton, the parish officers of Debenham refused to allow him to return, unless Kenton would grant him a certificate: to this the parish officers of Kenton consented. An order for granting this certificate' was made at the quarterly meeting of the directors and guardians of the incorpo

Nov. 18th.

On an appeal, the respondents, in order to prove the fact to them of a given by the

certificate

appellants, acknowledging the pauper to

be their settled

produced an old book from their

inhabitant,

own parish
chest, in which
was an entry of
that fact in the
hand-writing of

a

former parish officer. Held

that such evi

dence was in

admissible.

rated

1818.

The KING against The Inhabit

ants of DEBENHAM.

rated hundreds of Loes and Wilford, (in which Kenton is situated,) as appeared by an entry in the minute book of the proceedings of the Hundred-house quarterly meetings, dated 20th March, 1771. And to prove that such certificate was delivered to the respondent parish in pursuance of such order, a book was produced from the parish chest of Debenham: on the outside of the cover, was "Certs. Recd., Bonds do., Coppys of Orders, 1756." This book contained memorandums of orders of removal, of bonds, and certificates received. The certificates were regularly numbered, and under the title of certificates received was the following entry, dated 1771. "No. 88. John Polkins from Kenton, No. 89. James Driver, do." There were a variety of other certificates subsequently entered. The sessions were of opinion that this book was not admissible in evidence.

Nolan and Dover in support of the order of sessions. This evidence was not admissible. There is not any good ground of distinction between contending parishes and contending individuals. If this had been the case of an individual, there could be no doubt that his own books could not be produced in evidence for himself. These entries are made by the parish officers, and for their own benefit. The only case at all resembling this is the case of entries made by a previous incumbent which are evidence for his successor. But that has always been considered as an excepted case. And the rule is so laid down by Lord Kenyon in Outram v. Morewood. (a) By. 42 G. 3. c. 46. parish in

(a) 5 Term Rep. 123.

dentures

dentures are to be copied into a book provided for that purpose, and the book after being allowed by two justices is to be made evidence where the original indentures are proved to be lost. Now all these provisions could not have been necessary, if this book be admissible in evidence.

Scarlett and Primrose, contrà. Independently of the book, there were sufficient circumstances stated in this case from which the sessions ought to have concluded that this certificate had been delivered. But the book

was admissible. It was not produced to prove the contents of the certificate, as is the case of the book containing copies of the parish indentures under the 42 G. 3., but only to shew the fact of the delivery. And it is evidence of that. Besides this is in the nature of a public document; for it is kept in the parish chest, and by a public body. And this distinguishes the case from Outram v. Morewood, which was an entry made in a private book by an individual.

ABBOTT C.J. The principles of the law of evidence in this country are founded on the strongest sense, and soundest reasoning. It is of the first importance to preserve them strictly; inasmuch as they are the great safeguards of the subject in the administration of justice in all cases, from those involving property of the most trifling amount, to those where the life of an individual is at stake. I therefore should be extremely unwilling to come to any decision which should break in upon any established principle. It is an established principle, that nothing said or done by a person, having at the time an interest in the subject matter,

shall

1818.

The KING against The Inhabit

ants of DEBENHAM.

1818.

The KING against The Inhabitants of DEBENHAM.

shall be evidence, either for him or persons claiming under him. Now the entry in this book is of that description; for it is made by a person having an interest to make it, inasmuch as it is produced as proof of the delivery of a certificate by which the parish of which the party making an entry is an inhabitant is to be relieved from the burden of maintaining the individual named in the certificate. I think therefore that the safest course which the Court can pursue will be to hold that the sessions were justified in rejecting this evidence. There are, however, in this case, other circumstances from which the sessions may draw the conclusion (if they shall think fit so to do) that the certificate was in fact delivered. I think, therefore, that the case should go back to be reheard upon that point.

BAYLEY J. I am entirely of the same opinion, that the entry in this book was not evidence, the effect of it being to advance the interest of the person who made it.

HOLROYD J. concurred.

Cast sent back to the Sessions to be reheard.