1826. from the date, and that was averred; and here the declaMAYELSTON ration should have first stated it as a deed purporting to have been made between such and such parties, and then have averred that it was made by persons of different v. PALMERSTON. names. Gurney, for the plaintiff.-We have in our declaration followed the description of the parties at the beginning of the instrument, and we prove our allegation, by shewing the parties to be so described in the deed. Talfourd, on the same side.--The covenant we declare on is by Champain, and the part of the deed that regards him is all that is material to us in this cause (b). ABBOTT, C. J.-The question is, whether the plaintiff, in his declaration, has rightly described the deed: the declaration alleges it to be by the plaintiff, of the first part; James Cook and Hannah his wife, of the second; and Champain, of the third. By one part of the deed that ap (b) In the case of Gordon v. Austin and Others, 4 T. R. 611. The plaintiff sued on a promisso ry note, made by the firm of Austin, Strobell, and Shirtliff, who were declared against by the names of William Austin, Robert Strobell, and William Shirtliff, the two last of whom were stated to be outlawed, the defendant Austin pleaded the general issue, At the trial, it appeared that the note was signed by the name of the firm, as first mentioned; and it was proved that the partnership consisted of William Austin, Daniel Strobell, and William Shirtliff. It was objected that the plaintiff ought to be nonsuited, on the ground of variance between the contract declared upon, and that proved; it appearing to be be tween different persons. Erskine, contra, contended, that as the defendant was properly described, he could not take advantage of a variance with respect to the names of the others, and he having alone pleaded the general issue, the question at nisi prius would only be whether he had promised or not. But the Court held, that the action, being on a written instrument, the evidence did not prove the contract declarAnd Mr. Justice Buller said-It stands thus, the plaintiff declared upon a note given by three persons, describing them, and the note given in evidence was made by different persons. The evidence, therefore, did not support the contract declared up ed on. on. pears to be correct, but by another part of the deed, it is made uncertain whether it is the deed of James Cook, or of George; and when we come to the execution, we find that that is by George Cook. Now, the plaintiff states it to have been made by James Cook, and I am of opinion that it was made by George Cook; and I think the plaintiff must be called. Gurney and Talfourd, for the plaintiff. Marryat and Praed, for the defendant. [Attornies.-Ross & Co., and C. Wilson.] Nonsuit. 1826. MAYELSTON v. PALMERSTON. GREAVES v. HUNTER. MONEY had and received. Plea-General issue. To prove a letter to be of the defendant's handwriting, Mr. Holdsworth, the plaintiff's attorney, was called; he said, I know the defendant's handwriting from having seen other papers in the Master's office, which were admitted to be of his handwriting by the defendant's attorney, and I have frequently acted on those papers so admitted to be of his handwriting; but I never saw the defendant write, nor did I ever correspond with him. ABBOTT, C. J.-This is not sufficient. The witness cannot be allowed to compare the paper he is called to prove with those he speaks of at the Master's office, which is all that this amounts to. The plaintiff made out his case by other evidence. Verdict for the plaintiff. Brougham and Talfourd, for the plaintiff. Scarlett, for the defendant. Dec. 8th. If a person prove that he has never seen the defendant write, and has neve never corres ponded with him, but has seen papers in the master's of fice, which the party admitted attorney of the to be of his handwriting, and the person has acted on these papers so admitted: This is not such a knowledge of the party's handwriting as will enable the person to prove a written document alleged to be in his handwriting. [Attornies.-Hutchinson & H., and Rosser.] 1826. Dec. 11th. is parcel of a COOKE, Esq. v. BANKS and Another. On the question TRESPASS for taking the plaintiff's goods. Plea— whether a place General issue. The defendants were parish officers of St. Andrew, Holborn; and the real question to be tried in this case was, whether the Stone Buildings in Lincoln's Inn, were a part of the parish of St. Andrew, Holborn. certain parish, old entries which he mere- church, alleged to belong to the place in question, are not evidence. The taking of the goods was admitted; and among a great deal of other evidence to shew that this part of Lincoln's Inn was a part of this parish, and that the inhabitants of Lincoln's Inn had a chapel in St. Andrew's Church-the defendants' counsel, having proved that a person named Bentley was churchwarden of the parish in the year 1584, wished to read several entries in a book, produced from among the parish books, written in a handwriting of Queen Elizabeth's reign, the title of which was "The Sacristary Register or Vestry book, containing the days, and years, and names of such temporal officers belonging to the church and parish, as yearly are to be chosen, by order, within the parish of St. Andrew, in Holborn, at the vestry; as also all such rates, ordinances, decrees, statutes, arbitraments, and agreements, as have been had, made, and done, by the parson, churchwardens, and assistants, from time to time, since the year of our Lord 1581, at their several sittings, to the glory of God, the peace of the church, and wealth of the parish, now first collected and reduced into a register or book for good order sake, and a precedent to be followed and well continued and kept of his successors, by Thomas Bentley, churchwarden, A. D. 1584." Near the end of the book was this title, "Some monuments of antiquities worthy memory, collected and gathered out of sundry old accounts, had and made by churchwardens, night wardens, and such like officers of the parish, since the time of king Henry the sixth, by Thomas Bentley, Gent. sometime an unprofitable member and churchwarden of the parish, in the year of our Lord, 1584." Under this title was the following entry, which the defendants' counsel proposed to read : The pews in "Item, the first three pews in "Lincoln's Inn Chapel, were made 22 Eliz. Chapel. "by Balian, carpenter, at the assignment of "Mr. Heryn, then churchwarden, and cost the parish 57. "which eight pews cost in all 107. 16s. and better, as appears in Mr. Roper's accounts. 66 ABBOTT, C. J.—(Having read the entry). This is matter of history, and therefore is not evidence. Scarlett, for the defendants.—I submit it to your Lordship as matter of reputation, and therefore evidence. ABBOTT, C. J.-General reputation may perhaps be evidence, but not a statement of particular facts. Scarlett.-I wish to shew a reputation that Lincoln's Inn had a chapel in St. Andrew's, Holborn. ABBOTT, C. J.-I think that this entry is not admissible as evidence of that fact. Scarlett then proposed to read the entry which was in the same book next but one to the preceding. follows: All the glass "Memdum. That this year al windows in the "So, in the month of July, 1583, church pitiously broken with the It was as 25 Eliz. all the glass windows in the church, especi clap of gunpow- " ally the windows in Lincoln's Inn chapel, a der burnt in Steward's arms set up in Lin 66 Shoe Lane. Mr. little before new glazed with many fair coats "ried Mrs. Compion, of this parish, and late "deceased, were pitifully shaken, rent, and "broken down, as all the houses round about that part of the 1826. COOKE บ. BANKS. 1826. COOKE บ. BANKS. 66 parish alsmost were, with the monstrous and ruge blast "of the gunpowder, that lately was set on fire and blew up all the gunpowder house, and other tenements in "Fetter Lane, to the destruction of many houses and spoil of much goods thereabouts, yea, and to the death "of one or two men." Scarlett. We submit, that this entry is evidence, because, at this time, Bentley was churchwarden; and as this entry goes to admit that the parish were bound to repair the windows, it is an admission of a right against themselves. ABBOTT, C. J.-Does the writer of the book charge himself by this entry. Scarlett.-No, my Lord. Tindal, S. G.The title in the book under which these entries are placed, is "Some monuments of antiquities worthy of memory, collected by Thomas Bentley, churchwarden, in the year 1584,” and the running title of that part of the book is, "Memorable Antiquities." ABBOTT, C. J.—(Having read the entry). It is the history of blowing up a house in Fetter Lane, by gunpowder, and the effect it had on the parish church. Scarlett.-We don't use it as evidence of the fact of the blowing up of the house, but as the reputation of the limits of the parish; and we submit that this entry would be evidence if the question were whether the churchwardens were bound to keep this window in repair. ABBOTT, C. J.-The entry speaks of the glazing being done by a particular individual. I think it is not evidence. The defendants' counsel then offered an entry, in the |
