1824.

WOLLEY

and another

v.

BROWNHILL and others.

There being but

one witness in support of a

4

that it does not; and that not only on the authority of the case which has been adverted to by my brother Graham, which is almost exactly in point, but of a series of decisions which may be found in the books. And these cases shew, that in all instances of the endowment of a vicar, when the instrument of endowment produced does not sustain the perception of tithes, a second endowment is to be presumed. In point of law, the foundation of a presumption is, your finding that things have gone on in a certain channel and course from all time, and the presumption is that they would not have gone on in that way if they had not been founded upon some original contract between the parties. But then, here, I have no means of judging, except by another presumption, that all these things have been done from all time; because there is nothing in the case, either one way or the other, with respect to the manse of the vicar; nothing whatever. If there had been a manse of the vicar, I should certainly have concluded, with the most perfect satisfaction, founded on the books, and what, I apprehend, are principles of law not now to be shaken, that that must have been done in conformity with an instrument, which, although it does not now exist, was at one time in existence, and in conformity with the original condition. Still the opposite fact with respect to the manse not appearing, and not being brought into existence on the other side, I am bound to presume, that that cannot be alleged as a ground for destroying the presumption. Therefore, on the first branch of the case, I concur in thinking, that an endowment has been made, although not that endowment which has been produced; that it was once in existence, although now incapable of production from lapse of time and accident; and that it was in conformity with that original condition.

Then with respect to the last part of the case, as to the facts, it appears to me, I confess, it does not follow, farm modus, is because there is but one witness, provided that witness no objection to an issue in poiut of law, provided he be uncontradicted.

states facts which are not contradicted on the other side, that that would not be sufficient for an issue. There being but one witness, is no objection in point of law, provided he be uncontradicted. But what does that witness under

take to tell the Court? He undertakes to say, that these are ancient farms, and that the farm of Mr. Brownhill is an ancient farm; and he proves it in this way: in answer to an interrogatory, which appears to me to be a leading one (and, I apprehend, that at nisi prius, no counsel would be permitted, if it was objected to, to examine his witness in chief in that way, because it is putting the words into the mouth of the party), he says, he knows all these pieces of ground that lie dispersedly throughout almost the whole township, and that all these are an ancient farm. Now, certainly, in order to prove that they are an ancient farm, and entitled to the immunities and privileges of an ancient farm, it would be essentially necessary to shew, that although they may be split into different occupations at present, they were in one occupation at one time. That ought to have been shewn, either through the medium of living testimony, or of written documents. It has occurred to me in the course of my practice, to see two or three issues of this kind tried on the circuit, and there were always deeds produced. I do 1 mean to say, that evidence of this kind is substantially necessary; but I take it, that it must be considered as necessary, when the parol testimony does not establish unity of possession; and this man does not prove that. I confess also that I do not feel myself warranted in saying, that he has proved payment in respect of these pieces of land. I do not think he has; because non constat that those payments, wherever he obtained them, were ever made by the tenant in respect of this particular parcel, which constitutes the ground now occupied by this defendant. The evidence appears to me to be quite unsatisfactory; so unsatisfactory, that I cannot conceive that a jury could be

1824.

WOLLEY and another

v.

BROWNHILL

and others.

1824.

WOLLEY

brought to doubt for a moment, if it were laid before them; which I consider to be the test upon which this Court must

and another proceed in granting, or not granting an issue.

ຍ.

BROWNHILL

and others.

Decree as prayed by the bill, with costs, except as to the tithes abandoned, and the tithe of gardens; and with reference to the former, the plaintiffs to pay the costs up to the time of giving notice of the abandonment; and in respect of the latter, the bill to be dismissed with costs generally. The decree to be without prejudice to any future defence the defendants may be advised to set up.

CASES IN EQUITY

IN THE

EXCHEQUER CHAMBER,

AND

GRAY'S INN HALL,

IN EASTER TERM, 5th GEORGE IV. AND THE SITTINGS

AFTER.

EVANS v. VEYSEY.

THIS was a bill for the specific performance of an agreement for the execution of a lease by the plaintiff to the defendant, of a small estate in Somersetshire, of which the former was seised in fee, for three lives, in consideration of a sum of 1157. The agreement took place in May, 1822, and the bill and answer were filed in 1823, and previous to October in that year. At the time last mentioned, exceptions to the answer were prepared, but not filed, in consequence of the plaintiff learning that the defendant had recently emigrated to America. No step in the cause was subsequently taken by either party till the 12th of May last, when the defendant's solicitor obtained an order to dismiss the bill for want of prosecution, unless cause should be shewn against it in a week. The plaintiff's agent not having been able to procure affidavits from the country within the time allowed by the rule, to prevent the dismissal of the bill, put in a replication.

1824. Gray's InnHall, June 3d.

Leave given under special cirwithdraw a re

cumstances, to

plication, and file exceptions

to the answer

nunc pro tunc.

1824.

EVANS

v.

VEYSEY.

Swanston now moved, upon notice and an affidavit, that the plaintiff might be at liberty to withdraw the replication filed, and file exceptions to the answer nunc pro tunc. The affidavit was by the plaintiff, his solicitor, and a clerk to the latter; and stated that two of the deponents believed, and had been informed, that the defendant, his wife and family, had embarked in August last, for St. John's in America; that they intended to settle there, and had left no property in this country. And the solicitor said also, that the exceptions were material to the plaintiff's case, had been drawn in October last, and had not been delivered or filed, solely because deponent had thought it useless, under the circumstances, to proceed further in the cause.

The LORD CHIEF BARON said, that he thought the application ought to be granted, and that the Court was of the same opinion.

Cooke, contrà, objected that the plaintiff ought to have applied to the Court for relief before putting in the replication. We could not find any case (a), in which such an order had been made as that asked for.

LORD CHIEF BARON. You are not put in a worse situation by granting the motion, and these are special cir

cumstances.

Ordered: plaintiff to pay the costs of the application.

(a) In Maddock's Practice (2. 350-351, 2d ed.) it is laid down that the Court will not give leave to withdraw a replication, unless for the purpose of amending the bill; and Pott v. Reynolds, 3 Atk. 565, is referred to as an authority. But this position does not appear to be warranted by the language of Lord Hardwicke in that case, which was as follows: "These orders are very rarely granted, unless to the application for leave to withdraw the replication something further is added, as that the plaintiff may thereby be enabled to amend his bill, or some reason that may induce the Court to give the plaintiff this indulgence." Vide Harrison's Ch. Pr. 1. 302, 8th ed. Eq. Pleading, 328. Lube's Analysis Eq. Pl. 89.

Cooper's