cases, and whether we consider the object of the rating to have been as an additonal evidence of occupation or as an additional evidence of the status of parties in society, but bearing his share of the public burdens,-in either of these views there is nothing in the slightest degree which requires us to introduce the distinction which Mr. Chatterton has asked us to do, namely, that the rating must be for these premises separately from all others. Well, as I have said, I think that disposes of the two first cases. It goes a long way with the others. I shall only say a word on those others. In Mellon's case the party held a shop and the parlour, and the shop was closed on the inside, and the party at night went through a door into the hall, and out by the front door of the house, Something of the same kind occurred in Fitzgerald's case. With his shop he had a right to the shop door, but there was a door communicating between the parlour and the hall, and though he might have gone that way, he seemed not to have secured that for himself. Now, it appears to me that that right in either or both of these cases in these persons to pass through the hall door, was nothing more than a liberty or easement, a sort of servitude which did not derogate from the master's rights as owner of the house, and that the existence of this servitude did not take away from the franchise. I therefore concur in the judgment of the Court. into the book now produced; that he (witness) inspected the copy, when made, and compared it with the original, at the time, and that he found it to be correct. The original was lost; the person who had made the copy was living. Held, that the copies of the memoranda, in the book now produced, were admissible for the purpose of refreshing the witness's memory. The THIS case came before the Court upon an appeal from a ruling of Master Bushe. It had been referred to him to take certain accounts between the parties, and in the course of the investigation several witnesses were examined orally before him. One of the witnesses being examined as to certain items, a book, containing memoranda, was produced to refresh his memory as to them. The memoranda were not in the handwriting of the witness, but in that of one Kenealy, who copied them from a book in which the witness at the time of the transactions now being inquired into, and when they were fresh in his memory, made entries respecting those transactions. entries were afterwards, in some instances, at a distance of two or three months, copied by Kenealy into the book now produced. This copy was not made in the presence of the witness, but was, from time to time, compared by him with the entries in the original book in his own writing, and found to be FITZGERALD, J.-I concur in the result at which the correct, and at the period of the examination the Court has arrived, but I propose to offer an opinion master also was satisfied, by the evidence of the witonly on the single question, to which the very clear, ness, that the copy was a correct one. The noncandid, and able argument of Mr. Chatterton reduced production of the original book was accounted for by the case. In each case it was conceded that there its loss. Kenealy was stated to be still alive. On was a tenement which, if separately rated, was suffi- the part of the plaintiff it was objected that the book cient to confer the franchise, the occupation being suf-produced was not a document by which the witness ficient in point of time; but it seems to me, that the tenement occupied is not the less duly rated to the relief of the poor, because it is rated with some other premises, forming part of the holding which is duly rated. could be allowed to refresh his memory. The Master however ruled that it was such a document, and from that ruling the present appeal was brought. Chatterton, Q.C., and Leech for the plaintiff.-The Master's ruling was erroneous. This was not a docu O'BRIEN, J.-With respect to the costs of this ap-ment by which the witness could refresh his memory. peal, we look upon this as a very important question. We look upon it not merely as a case between the appellant and the respondents: the ground upon which it was put really made it a general question of great public importance, as to which it was desirable that there should be some guidance, and we, therefore, do not think it a case in which there ought to be any costs. How can the witness swear now to the correctness [BEFORE O'BRIEN AND HAYES, J.J.] LORD TALBOT DE Malahide v. CUSACK.-June 9, 24. Evidence-Refreshing memory-Copy of document. Carleton, Q.C., contra.-It is sworn that the copy was a correct one, and that the original is lost. Where, To refresh the memory of a witness, a document was in the cases, a witness was not allowed to use a copy put into his hand. This document was not in his of a document to refresh his memory, the original was writing, but he deposed that at the time of the trans-in existence, and the decision went upon the principle actions in question, and while they were fresh in his of the necessity for the best evidence available being recollection, he made certain memoranda; that produced. Tanner v. Taylor cited in Doe v. Perkins. afterwards at a distance of two or three months, Horne v. Mackenzie (6 Cl. & Fin. 628), is the case those memoranda were copied by another person, of a printed copy, by which a witness was allowed to refresh his memory. There is no decision establishing that the ruling is erroneous, and on principle there is no reason why a witness should not be allowed to refresh his memory in the manner now proposed. Iu with the weather, and he swore that the statements contained in those articles were invariably true. It was then submitted that the article should be read. "No," said the judge "you cannot do that," but he Leech in reply.-Wherever a witness is allowed to held that the article might be used to refresh the r fresh his memory by a document, it must be by one witness's memory, and that he might be asked, in his writing made at the time, or in the writing of whether, looking at the article in question, he had any some one else made at the time and while the matter doubt that the fact really was as therein stated. was fresh in his memory. A witness cannot refresh this case the copy seems to be a true one, and thereh's memory by a document which only existed when fore we think that the Master should allow the witness, h's memory had ceased. Burrough v. Martin (2 for the purpose of refreshing his memory, to look at Campb. 112.) entries in the book proved to the satisfaction of the July 24th.-O'BRIEN, J.-This was a case argued Master to be correct copies of what the witness had before my brother Hayes and myself, by Mr. Chatter-written immediately after the transaction, when the ton and Mr. Carleton. Since the argument, my matter was fresh in his memory. This being a quesbrother Hayes has referred me to a case on the sub- tion of some novelty, we think the costs should be ject which was not cited, that is the case of M'Gregor costs in the cause. v. Topham (1 C. & K. 320). The question here is this. It has been long settled that a witness may, for the purpose of refreshing his memory, look at a document in his own handrwriting, made at the time of the occurrence to which he is deposing. The rule has been extended to documents which he saw at the time or immediately after, which he read over and as to which he had an opportunity of seeing according to his fresh recollection of the facts, whether they contained the truth. But here the document was not in his writing, nor did he see it at the time, but it is proved to the satisfaction of the Master, that it is a correct copy of the original memorandum which was made. The particular entry here is proved, to the satisfaction of the Master, to be an exact copy of that which he wrote at the time, and the loss of the original is accounted for. Well, one would say that if a document need not be in the witness's own writing, but must be one which he looked at at the time, on the same principle, when there is a copy of a document, it being proved to be a copy, and the loss of the original being accounted for, the same rule would apply. Consequently in the absence of express authority, we were so disposed to hold. None of the It cases to which we were referred were against that view. The case in Adolphus & Ellis would imply that the non-production of the original was not accounted for, and that the party should not be allowed to look at the copy unless he accounted for the loss of the original. Well, I now come to the case of Topham v. M'Gregor to which my brother Hayes has referred me. In that the facts were curions. became necessary to prove the state of the weather in a particular year, and to do that, it was proposed, in order to corroborate the testimony of a witness, to read an article from a newspaper, published at the time, and which contained a statement confirmatory of the witness's evidence. This was objected to; then the editor of the newspaper was called, and he stated that the article had been furnished by a gentleman who had been in the habit of writing such articles for the newspaper; he also proved the loss of the original manuscript. The writer of the article was then called, and he stated that he had no recollection of having communicated the particular article referred to; he stated, however, that, at the time mentioned by the editor, he hd been in the habit of furnishing him with articles, with reference to phenomena connected HAYES, J.-I concur with my brother O'Brien. At the time of the argument I myself did feel that all reason was on the side of the defendant here, and all that I felt was wanting was an authority, and therefore I searched for one which I think gives all that is wanting, and I should say that there is no doubt that if this document itself, this lost document had been produced, it would have been all right, as it is said to refresh the witness's memory. That I would say is an inexact expression, for the witness looks at the document, and all that he does is, seeing that that is his writing, though his memory is a blank, he will undertake to swear to the truth of the matters which he sees in the document. It is hard to say why he should not be allowed to do the same thing if the document itself is lost, and another is produced which is proved to be a true copy of the original. That was exactly the case in Topham v. M'Gregor, for there the party refreshed his memory from a copy. So, here is a case where it was done not, I would say, to refresh the witness's memory, but to replace memory. Exceptions - Evidence of tolls and customs under 4 Anne, c. 14-Evidence of appointment to office of weighmaster-Evidence of oath being takenPresumption-Rebuttal-10 G. IV, c. 7, sec. 20. At the trial of an action brought by the plaintiff for disturbance in his office of weighmaster under the 4 Anne (Ir.) c. 14, evidence was given that there had been boards fixed up in front of the market-house of Clones, and in front of the shambles, with tolls and customs marked on them; and that when meal and potatoes were brought to the market, the buyers used to pay rent for the liberty of re-selling them. Held, upon the argument of a bill of exceptions, that this was damages, upon which verdict he on the 13th Nov. 1851, obtained judgment; that though the tenancy evidence from which the jury might infer that tolls | and customs were legally leviable in Clones, and that Clones was a town in which the office of weigh-from year to year so found by the jury was still submaster, under the 4 Anne, c. 14, existed. The 4 Anne, c. 14, imposed a penalty of 40s. a month on the owner of tolls and customs who should neglect to appoint a weighmaster. There was evidence given that Sir T. B. Leonard was the owner of the tolls and customs of Clones, and the plaintiff gave evidence that he acted as weighmaster from the death of his father till 1851. Held, that there was evidence to go to the jury, that the plaintiff was duly appointed weighmaster pursuant to the 4 Anne, c. 14. Held also, that evidence of the fees taken by the plaintiff being larger than the statutable ones, supposing it given, would weaken but not annul the other evidence, as it was for the jury to choose between imputing a violation of the statute to the owner of the tolls and customs, and imputing extortion to the plaintiff. The plaintiff gave no direct evidence of having taken the oath required by the 10 G. IV. c. 7. The defendant gave some evidence of a fruitless search for the oath amongst the records of the Court of Chancery, but none of any in a Court of assize. Held, that this was not such a rebuttal by the defendant of the presumption that the oath was taken arising from the plaintiff's having acted in the office, as entitied the defendant to have the question withdrawn from the jury. 1. Because this assumed that the plaintiff was bound to follow section 20 of 10 G. IV., c. 7, as to the time and manner of taking the oath, which he was not. 2. Because waiving this, the neglect of the officer to record the oath would not invalidate its effect if taken. 3. Because the search was insufficient. THE first count of the summons and plaint complained that for fourteen years before the filing of the summons and plaint, the plaintiff was weighmaster and possessor of the office of weighmaster of the market town of Clones, under the statute of the 4 Anne (Ir.) c. 14, and of the emoluments thereto belonging; that he was provided with beams, scales and weights, which were set up in the market-house of Clones; that the defendants on the 6th of June, 1851, broke and entered the market-house, and ejected, expelled, and removed the plaintiff therefrom, and kept and continued him so expelled, &c., from thence hitherto; that they seized and carried away his beams, scales, and weights, and thereby and otherwise from said 1st June, 1851, hitherto hindered and disturbed him from exercising his said office, and prevented him from receiving the fees and emoluments thereof. The second count complained that the plaintiff was tenant from year to year under Sir T. B. Lennard of the ground story of the market-house; that the defendants on the 6th June, 1851, broke, and entered it, and expelled him, and since have kept him so expelled; that on the 12th June, 1851, he brought an action in the Queen's Bench for that trespass in which he obtained a verdict, by which the jury found that he was tenant from year to year of a certain part of the said ground story, called the office, and gave him £25 | sisting, the defendants had since the time to which 15. April 21.-H. Ellis (with him J. E. Walsh, Q.C.) in support of the exceptions. Of the three counts, one in case and two in trespass, I will deal with the counts in trespass first, as being the simples'. The count charges a trespass, and shows upon the face of it that no trespass could have been committed. Trespass is a possessory action.-Selwyn's Nisi Prius, 1296-98; Brown v. Notley (18 L. J., Ex., N. S., I tion of the plaintiff being weighmaster under the sta 39). There is no authority the other way. The de- tute of Anne. Why should the resolutions of the fendant asked the judge to direct a verdict for him Court Leet be sent to one who was appointed under a on the third issue on the second count. This is the statute? The letter does not lean to one side more subject of the 14th exception. As to the 13th ex- than the other.-Avery v. Bowden (6 Ell. & Bl. 962.) ception, which is in reference to the second issue on The plaintiff set up cranes in obedience to his orders the second count, is the tenancy of the little office in which he would have had no business to do if ap1851 evidence of a tenancy in this case, when the pointed under the statute of Anne. If the letter were Statute of Limitations is pleaded? Or must the taken by itself, it would show that it was as to a maCourt presume upon that plea that the tenancy has norial craner it was sent, but the party who wrote the been determined till the contrary be proved?-Leigh letter himself proved he was addressing a manorial v. Thornton (1 B. & Ald., 625). At the close of the officer.-M'Mahon v. Lennard (6 H. of L., N.S., case the defendant called on the judge to direct the 1010). John Payne's evidence was some evidence, jury on the question of the Statute of Limitations. and the House of Lords decided that if the defendant But if the former point be well-founded, it disposes of gave some evidence, the plaintiff could not have a this, because if the action of trespass could never verdict. J. P. proved he searched everywhere he have been brought, it could not have been brought could for the oath taken by John M Mahon, and could within six years. This disposes of the excep- not find any except the oath he took when admitted tions relating to the trespass. Coming to the as a barrister. The question is not if that be comcount in case, by the 17th exception the defendant plete evidence, but is it some evidence, so as to asked the judge to tell the jury that the mere exclu- impose upon the plaintiff the necessity of giving some sion was no disturbance, and that it should be shown evidence he did take the oath? The Courts in Engthere was some demand to exercise the office since land are taken to be the places where people in Eng1851. It is admitted that the plaintiff never exer- land take oaths, and the Courts in Ireland where cised the office since 1851, and that he never made people residing in Ireland are to take them. The an effort to exercise it, nor any preparation to exercise plaintiff is to be taken to be residing in Ireland as a it in the way of beams, scales, &c. Can a disturb barrister. The Chief Justice told the jury the preance take place in the exercise of an office during the sumption from the acting in the office would be retime when it is admitted no such exercise existed? butted if there was search everywhere for the oath in This is analogous to the question of trespass; but it vain. But it was not a rebuttal, but a negative proof. is stronger.-3 Bla. Com., 236; 27 Geo. 3, c. 41, s. It was not for the judge to tell the jury how much 2. Should a jury be allowed to speculate on what evidence would rebut a presumption. Lord Wensleywould have been, if a demand had been made some dale, in correcting his own report, underlined the years before, which never was made? Dexter word "some," and it appears in italics showing that v. Hayes (11 Ir. C. L. R., 106); Dexter v. Cust (13 any evidence at all was sufficient. There is no eviIr. C. L. R., 97). In these cases the fact that Dexter dence of the existence of the office of weighmaster in was standing at the place with his apparatus ready, the town of Clones. It is necessary to prove some was the foundation of the argument. Eight years person received the tolls and customs at the time of here are the same as eighty. The defendant alleges the alleged appointment. It has not been proved 1. That the office could not have existed under the sta- that there ever was a grant of these tolls and customs, tute of Anne. 2. That the office held by the plaintiff was nor was the question asked on cross-examination; nor held by will. 3. That the lord of the manor as such was a collector of tolls and customs ever seen in the was the person, and not the owner of the tolls. A town of Clones. market-toll is payable by the buyer, and not the seller, unless there be a custom to the contrary. There was no attempt to prove a grant of tolls, but only to show receipt of them.-M'Gahey v. Alston (2 M. & W., 206). Without acting, the presumption that the oath was taken cannot be made. A presumption cannot be founded on a presumption. The fees taken by M Mahon were often two, three, or seven times the fees given by the statute of Anne; and therefore, if acting under that statute if weighmaster under that statute, he was guilty of fraud, extortion, and rob bery, and will the Court presume crime? It would be for the first time.-Doe dem. Hammond v. Cooke (6 Bingham, 174). He may have been a manorial weighmaster. This evidence of acting is no evidence of good title. It is presumptive evidence in our favour, since if he were weighmaster he acted criminally. One presumption was built upon the other. The letter of 29th August, 1847, was a copy of the resolutions of the Court Leet. The 5th resolution is quoted by Ellis. This is relied on as a recognition of the plaintiff's being in the office. This is not a recogni E. M. Kelly (with him Hemphill, Q.C.,) contra.— The existence of the office of weighmaster under the statute of Anne is admitted on the record.—Stephen on Pleading, p. 181; Buller's Nisi Prius, 298, a, referring to Dyer, 183, c. 58. [Ball, J.—The traverse is, that the plaintiff is not weighmaster of Clones.] Suppose a party claimed to be possessor of the office of Chief Justice of Common Pleas, and it be traversed that he is Chief Justice of Common Pleas. Would any Court allow the defendant to argue there was no such office as that of Chief Justice in existence? Or if the traverse is that the plaintiff did not run a certain horse for the Derby, could he argue there was no such thing as the Derby?-Carter v. James (13 M. & W., 137). [Christian, J.-The first issue seems to exclude this argument.] We objected to this issue being put on the record. [Monahan, C. J.-We must assume from the pleadings that the issues were justifiable.] No issue unwarranted by the pleadings can remain upon a bill of exceptions. In 4 Anne, c. 14, s. 3, the Legislature took it for granted that in every city, borough, and market town in Ireland a weighmaster should be ap to weigh or appoint a person to weigh for any person pointed. There is the exception made where the coming.] That would be illegal. [Christian, J.tolls and customs belong to some particular person. That is upon the assumption that Clones is a market James Murphy deposed to being 24 years in Hugh town with tolls and customs.] Whether or not it M'Mahon's employment, and seeing tolls taken. would be illegal. [Ball, J.-Where is the prohibi[Ball, J.-Was the witness cross-examined as to the tion?] [Christian, J.-What is to prevent me from meaning of tolls? Monahan, C. J.-It is plain that setting up a beam and scales and weighing for anythat evidence would not do unless we knew what he one who may come to me? This is only criticizing meant by tolls. Christian, J.-This man was a servant your argument to this extent-acting alone is relied of Hugh M.Mahon, and if Hugh M'Mahon was enti- on; but if you have other evidence along with it that tled to fees, and not tolls, this would lead one to tolls and customs existed, it may be quite different.] infer that when he speaks of tolls he means fees.] As to the second issue, we have only to show we Potatoes must by law be weighed gratis, and there- made a prima facie case. If the plaintiff had acted fore the twopence paid for weighing potatoes must illegally, that would not destroy his title to the office. mean tolls, no matter what the witness thought. He [Monahan, C.J.-That is assuming he was in possaw tolls and customs painted on the boards. [Ball, session of the office.] That is for the jury. [ChrisJ.-There is contrary evidence as to the boards.] tian, J.-Except that when you rely on acting as But if there be any evidence, this Court will not dis- evidence of an office under the statute you must show turb this verdict. Philip Duffy deposed, that when a these acts were in accordance with the statute.] countryman would come in, he paid witness fourpence Monahan, C.J.-No doubt, many witnesses proved a sack, and that he got paid also for the standings in that the plaintiff attended for many years, and rethe market. Stallage is tolls. Dr. John Brady de- ceived money (leaving names out of the question wheposed that there was a board with a list of tolls and ther he be called weighmaster or not). It is equally customs painted on it, and the name of Hugh M'Ma- certain none of them called him weighmaster under hon at the foot of it. Michael Reilly deposed that he the statute of Anne; and some of them proved he paid Hugh M'Mahon £10 for two years, and £8 for the took what was more than the fees given by the stasubsequent four years, &c. Cloues is a market town. tute of Anne. There is no substantial dispute about Tolls being once taken, there is the presumption that the evidence of the witnesses.] James Murphy dethey continue till the contrary be shown.-Best on posed that immediately after the death of Hugh Mac Presumptions, 186; Taylor on Evidence, sec. 155. Mahon he saw the defendant, Mr. Ellis, presiding at The language in the statute shows this. In section the Court Leet as seneschal; that he said "I hope 5 it is expressed "tolls or customs." Customs are you will have no objection to Mr. MacMahon's son merely tolls existing by prescription.-Coke Littleton, being weighmaster." They all said "No." Mr. 58, b, "consuetudines." Lord Abinger, in Earl of Mac Mahon went to the market after that, and the Egremont v. Saul (6 A. & E. 925) says that 66 con. witness weighed for him. We are not dealing with suetudines was generally used as signifying tolls. the weight of evidence. It is contended there was no This was a dictum at Nisi Prius, but not quarrelled evidence to go the jury that the plaintiff was weighwith. Toll is a custom founded on prescription.-master under the statute of Anne. Next come the Gunning on Tolls, 44, 45, 85. Tolls and customs are convertible terms, as statute after statute shows. 1 George 3, cap. 17, sections 10, 26; 3 George 3, cap. 34, sec. 56; 11 & 12 George 3, cap. 31. The acting of the weighmaster in the town, coupled with this language of the statute is evidence of the fact. The existence of the office is included in the plaint, the plea, the traverse, and the issue. [Ball, J.Do you mean it is evidence of the existence of a weighmaster under the statute of Anne?] Yes, of the existence of the office.-M'Mahon v. Lennard decides this. Taylor on Evidence, s. 139; M'Gahey v. Alston (2 M. & W., 206); Doe v. Barnes (8 Q. B. 1037). [Monahan, C. J.-That abstract proposition that acting was proof of the existence of the office, was decided in this case in M Mahon v. Lennard in the House of Lords. But it is said here there is evidence showing the gentleman did not receive the legal tolls.] [Christian, J.-The question of the existence of the office does not appear to have been agitated in that case as appears from the beginning of Judge Wightman's judgment, where he says the office as between the parties must be taken to have existed.] There is no authority for such an office as is suggested of manorial weighmaster. [Christian, J.-Might there not be a person weighing neither manorial nor under the statute of Anne? Suppose Sir T. Lennard chose conversations. Then the letter of 8th July, 1848, |