Rhodes against Ainsworth

JurisdictionEngland & Wales
Judgment Date07 November 1871
Date07 November 1871
CourtCourt of the King's Bench

English Reports Citation: 106 E.R. 32

IN THE COURT OF KING'S BENCH.

Rhodes against Ainsworth

[87] rhodes against ainsworth. Friday, Nov. 7th, 1817. On an issue to try whether the inhabitants of A. were immemorially bound to repair a chapel; the owner of the inheritance having leased his property for years at a rent certain, without any deduction, and residing himself in a different county; is not a competent witness to negative the liability, although he was not upon the rate, and the rate was in fact paid by his tenant; for such owner has an interest in discharging the inheritance from a permanent burden. This was an issue tried at the last assizes for the county of Lancaster, and the question was whether the inhabitants of the chapelry of Milne Row, at their own exclusive costs and charges, from time immemorial had repaired the chapel; the affirmative of that issue lay on the plaintiff; and his case having been closed, the (a) I East, 568. (b) 1 Cowp. 217. (e) 3 M. & S. 271. (d) 2 N. R. 1. 1B.&ALD.88. TRELAWNEY V. COLEMAN 33 defendants called a witness of the name of Milne, who being examined on the voir dire, stated that he was an owner of a tenement in the chapelry, which tenement was then in the hands of a tenant, who was rated for the same and had paid the rates, having agreed to pay his rent without any deduction, under a lease, of which many years of-the term were then unexpired. The owner's name did not appear on the rate, and he resided at a considerable distance from Milne Row, in the county of York. The witness was objected to by the plaintiff's counsel on the ground of interest, and the learned Judge decided in their favour, and rejected his testimony, and a verdict was found for the plaintiff. Topping now moved for a rule nisi for a new trial and relied upon the principle established by the case of The King v. Kirdford (a), viz. that to render a witness incompetent his interest must be actually existing at the time and not one that is expected. In the present case Milne the witness had in fact no interest at all; he was seventy-five years old, resided far from the chapelry, [88] and had let his tenement on a lease the terms of which could not be varied by the result of the action, and he was not and could not therefore be liable to any rate for the repair of the chapel. Lord Ellenborough C.J. I am clearly of opinion that the witness had an interest in the event of the suit; he is interested in the value of that which is to be affected by...

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