1851.

DOE d. PADWICK v. WITTCOMB.

in

ERROR
on a bill of exceptions. This was an action of
ejectment brought to recover a certain house and premises
situate in Cresswell-street, in the parish of Portsea. The
lessor of the plaintiff claimed the property as lord of the
manor of Hayling, and alleged that the premises in ques-
tion formed part of a certain piece of land called Howard's
Furlong, which he contended was part of the manor of
Hayling. Another portion of Howard's Furlong had been
sought to be recovered by Mr. Padwick on the same title
in a previous action, Doe d. Padwick v. Skinner (a),
which the plaintiff was nonsuited, in consequence of Cole-
ridge, J., at the trial, rejecting an entry in a certain an-
cient book, tendered in evidence by the plaintiff for the
purpose of shewing that the premises, though not in the
Isle of Hayling, formed part of the manor of Hayling.
The Court of Exchequer, on a motion for a new trial,
upheld the decision of the Judge, and refused the
to shew cause why there should not be a new trial. The
present action was tried before Lord Denman, C. J., at
the Spring Assizes, 1849, for the county of Dorset, when
the same question arose as to the admissibility of the en-
try in the book as evidence. The learned Lord Chief Jus-
tice, acting on the opinion of the Court of Exchequer, re-
jected the evidence of the entry. The facts of this case

rule

are precisely similar to those of the case of Doe d. Padwick

and receipts contended to be

in the handwriting of a

v. Skinner (a), except that there it was taken for granted person suggestthat the Robert Spiller, whose book was tendered in evi- then steward of

the property,

contained an entry, dated 1610, which purported to be a memorandum of the terms of certain leases and deeds. It commenced with a lease from S. to H. from 1570, for fifty-one years, of land, including the premises in question, describing them as parcel of the manor of H., and stated the recitals of that lease as shewing that the lord of the manor of H. had, in 1559, granted a lease for 100 years to L., and that L. had underlet to S. The entry then added, that H. had assigned to P., and P.'s widow to Sir E. C., who claimed ten years yet to come in the premises. There was no proof, independent of the entry, of the existence of such a lease from S. to H.:-Held, that the entry was not admissible upon the ground of reputation, nor as an entry made in the course of business, nor as secondary evidence of the lease, of which it purported to state the effect.

(a) 3 Exch. 84.

dence, was the steward of the Earl of Arundel at the time
the entry was made. The ancient receipts by Spiller,
which were put in to prove that he was the steward of
Lord Arundel, were receipts of the years A. D. 1616, 1617,
and 1622, for rent from the mayor and burgesses of Arun-
del, as due to the Lady Anne Dowager Countess Arundel.
The evidence shewed that the name of Spiller, written in
the book, was in the same handwriting with that of the
signature to the receipts, and that the entry in the book
was in a handwriting of the same period; but the witness.
could not say whether it was in Spiller's handwriting.
The following was the entry:-

"1569, Kingston Pastures in Porze, prell of the manor of Hayling.

"Thomas Stoughton, by indenture bearing date 14 die Junii, ano 12 R. Eliz., reciting one lease made by Henry Earl of Arundel, dated 9th Januarii, ano 1 Eliz., unto John Lo Lumley for 100 years; and one other lease made by said Lo Lumley unto the said Stoughton and one Humfrey Loyde, declaring then the said Loyde to be deade, and hymselfe to be sole seised by survivorship, for and in consideration of the somme of 301., paid unto the said Lo Lumley by Ralph Henslowe, Gent., demiseth and granteth unto him all those pasture grounds lying in Kingston, in the parish of Portzea, prcll of the manor of Haylinge, contayninge twenty-two acres, &c.: To have and to hold from the feaste of St. Michell the Archangle before the date thereof for the term of 51 years. Reddend. per ann. at the 2 usuall feastes 26s. 8d. A clause of distresse for rent arere by the space of one monthe. A reentrie for not payinge by the space of three months, the same beinge lawfully demanded, &c.; and after indorsed, signed, sealed, and delivered by Tho. Stoughton, Esqr., 13 Maii, ano 13 Eliz. Raplin Henslowe by deede indented, bearing date xxij Aprilis, ano 17 Eliz. resytinge the former deedes, assigneth all his interest to Mr. Popingaye, from whose evidence, by special conveyance, Sir Edward Creswell, Knight

claymeth x years yet to come from the feaste of St. Michell last.

"Entered 22 November, 1610."

A verdict was found for the defendant. A bill of exceptions was tendered to the ruling of the learned Judge.

Crowder for the plaintiff in error (a).-It is submitted, that the entry in the book was admissible on the three following grounds:-First, as evidence of reputation of the extent of the manor of Hayling; secondly, as an entry made by a person at the time of the transaction, in discharge of his duty; and thirdly, as secondary evidence of a lease that could not be found.

First, the entry is good evidence of reputation, that the property sought to be recovered in this action was parcel of the manor of Hayling. [Cresswell, J.-The entry is not an expression of Spiller's opinion. At the most it is a mere copy by him of something contained in some lease.] The original lease would be good evidence of reputation: Chapman v. Cowlan (b). [Maule, J.-No doubt if the original lease were produced, it would be good evidence of reputation of the extent of an ancient manor. But the difficulty is this, can you prove the fact of a lease being then in existence, by shewing that it was the opinion of Spiller, or of some one in his office, that at the time of the entry such a lease did exist. The entry does not relate to any matter of pedigree, or to anything of a public nature. Suppose a witness were to say that he had heard from an old man, who had since died, that there was a lease which described the manor as being of such an extent, would that be evidence of reputation?]

Secondly, it is an entry made by a person at the time, in discharge of his duty. [Coleridge, J.-Is there any evi

(a) Before Lord Campbell, C.J., Patteson, J., Coleridge, J., Maule, VOL. VI.

R R

J., Wightman, J., and Cresswell, J.
(b) 13 East, 10.

EXCH.

1851.

DOE

d.

PADWICK

v.

WITTCOMB.

1851.

Doe

d. PADWICK

v.

WITTCOMB.

dence, independently of the contents of the book, of the situation which Spiller filled? Lord Campbell, C. J.-The entry, to be admissible, must be made in the course of business.] Spiller appears to have received the rents for the Arundel family, and the entry was made during the currency of the lease, and whilst that family were interested in it as reversioners. Although it was not proved that the entry was in his handwriting, it is to be presumed to have been an act which he sanctioned and adopted. [Maule, J.You have to make out that the entry in the book and the existence of the lease form part of the same transaction. I do not think that you will find any case which supports the proposition, that an act done forty years after a prior act can be so connected with it as to be said to form part of the same transaction.] It was the duty of Spiller as steward to make an entry of the matters when they came to his knowledge: Doe d. Patteshall v. Turford (a), Stead v. Heaton (b).

Lastly, the entry was admissible as secondary evidence of the lease which after due search could not be found. It is not necessary that the entry should be a full and complete copy of the lease. If it be an abstract it is sufficient: Mayor of Exeter v. Warren (c). It may be objected, that no evidence was given that such a lease ever existed; but great difficulties would attend such proof. [Maule, J.What authority have you for saying that an abstract of an old deed is admissible in evidence? Campbell, C. J.— Even assuming the entry to be in Spiller's handwriting, it is not reasonable to presume that he had the deed before him at the time, and moreover he is not speaking of a document in which his employer is interested, but Sir Edward Cresswell. It, therefore, was not done in the course of business. Coleridge, J.-It may also be that the entry was copied from some other book, in which case the words

(a) 3 B. & Ad. 890.

(b) 4 T. R. 669.

(c) 5 Q. B. 773.

:

"Entered 22 November, 1610," would not refer to the time when the entry was made in Spiller's book.]

Butt, for the defendant, was not called upon.

Lord CAMPBELL, C. J.-We do not think it necessary to hear any argument on the part of the defendant, as we are all of opinion that this entry was not admissible upon any of the grounds contended for by Mr. Crowder.

First, as to reputation.-If the original lease had been produced, most undoubtedly the entry would have been evidence of reputation. It would have been evidence to shew that the Manor of Hayling did extend beyond the Island of Hayling; but the original lease was not forthcoming, and it is proposed to give evidence by reputation of the original lease. Therefore, this is proposed evidence of a fact, and not of the boundary of a manor. On that ground the entry is inadmissible.

Secondly, it is said to be admissible, as we must presume it to be an entry which, although not in Spiller's handwriting, yet at all events is one which he adopted and sanctioned in discharge of his duty as steward of the Earl of Arundel or of the property.-The first answer to that assumption is, that there is no sufficient evidence that Spiller ever was steward; and, secondly, that it does not appear to have been any part of his duty to make the entry as steward. It is not an entry made in the course of the transaction, as in Doe v. Turford, and in those cases where, upon one part of the transaction being proved, the matter adduced is to be considered as evidence from which the rest may be inferred. The entry is therefore not admissible as an act done by Spiller in the discharge of his duty.

The only remaining ground upon which the admissibility of the entry is rested, is that it is secondary evidence of the lease. But there is no evidence that any such lease

1851.

DOE d.

PADWICK

V.

WITTCOMB.