Short v Lee
| Jurisdiction | England & Wales |
| Judgment Date | 03 March 1821 |
| Date | 03 March 1821 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 705
HIGH COURT OF CHANCERY
short z . lee. Rolls. Feb. 21, 22, 25, 26, 27, Mar. 1, 3, [1821]. A book in the hand-writing of A. B., purporting to contain account of tithes collected by him seventy years ago, cannot be received in evidence, without proof that A. B. was collector of tithes at that time. In a suit for tithes by the lessee of an ecclesiastical corporation aggregate, to whom the rectory belonged, ancient documents: in their possession, purporting to be accounts furnished by some of their members employed to collect the tithes, and appearing to be approved and settled, are admissible in evidence. The statutes of the body enjoining the C. xvii.-23 70() SHORT r. M'',K 2 JAC. & W. 465. appointment of collectors, together with the internal evidence of the documents, and their coming out of the proper custody, held sufficient proof that the accounting parties were really collectors. Modus of 4d. for every milch cow and calf, and 3d. for every heifer and calf, in lieu of tithe of calves and milk, bad. Modus of 3d. for every hogshead of cyder, and Id. for fruit, in lieu of tithe of apples, pears, and other fruit, bad. It is the duty of a court of equity to decree tithes in kind, when satisfied that the modus set up is either bad in law, or that it has not im-memorially existed. An issue is not to be directed, unless there be reasonable doubt as to the fact, and when it depends on evidence, the effect of which can be better ascertained by a jury. This was a bill filed against several occupiers of lands in the parish of Woodbury in Devonshire, [465] for the tithes of hay, clover, and other artificial grasses, calves, milk, colts, agistment, apples, pears, and other garden-stuff. The plaintiff was lessee of the Gustos and College of Vicars Choral of the cathedral church of St. Peter in Exeter, who, as impropriate rectors, were entitled to both the great and small tithes. The Defendants, by their answer, set up the following moduses : '' for every acre of meadow hay, cut, mown, or taken upon or from off the said lands and farms, '' yearly at Easter the sum of 4cL; and for every acre of pasture hay, cut, mown, or " taken upon or from off the said farms and lands, yearly at Easter the sum of 3d. " in lieu of the tithe of hay, clover, and other artificial grasses; and also for every " milch cow and calf kept and fed within the said parish, yearly at Easter the sum " of 4:d.; and for every heifer and calf kept and fed within the said parish, yearly at " Easter the sum of 3d. in lieu of tithe of calves and milk; and for every foal and colt " yielded and brought forth within the said parish, yearly at Easter the sum of Id. " in lieu of the tithes of foals or colts ; and also for every barren vere and unprofitable " cow, kept, fed, agisted, or depastured within the said parish, yearly at Easter " the sum of 2d. in lieu of the tithe of agistment of barren and unprofitable cows ; " and also for every hogshead of cyder produced and made within the said parish, yearly at Easter the sum of \\d.; and for fruit, including hoard apples, when gathered " within the said parish, yearly at Easter the sum of Id. in lieu of tithes of apples. " pears, and other fruit; and also for every garden, and herbs growing therein within " the said parish, yearly at Easter the sum of Id. in lieu of tithe of garden stuff." [466] On the part of the Defendants, the depositions of several witnesses in support of the moduses were read, and also the ecclesiastical survey, in which the tithes ot corn were stated to belong to the rectory ; those of hay, calves, and some other articles, were not expressly mentioned ; there was, however, this entry," in aliis decimix " contentis in libra Paschali, 8, 8s." They also tendered, amongst other evidence, a book purporting to have been the account-book of a former tithe collector in the years 1752, 1753, and 1754. A witness stated that this book appeared to be in the hand writing of one Robert Beale, with whose hand-writing he was well acquainted; and he and other witnesses had been informed that R. Beale was the tithe-collector of T. Heatli, field, who was proved to have paid rent to the college, and was therefore supposed to have been at that time the lessee of the rectory; the book came from the possession of ./. Beale, the son of Robert Beale. Mr. Home and Mr. Boteler for the Plaintiff, objected to the reception of this book, on the ground that there was not sufficient proof of its being in the hand-writing of R. Beale, or of his having been actually the collector. Mr. Wetherell, Mr. Heald, Mr. Merivale, and Mr. Wake field for the Defendants. From the distance of time, it would be next to impossible to prove the appointment of Beale to be collector ; but if information and belief, proving that he was reputed to hold the office be not sufficient, the book itself is evidence that he acted as such, and in several cases collected by Mr. Phillips (Treat, on Evidence, 180,3d edition), proof of exercising an office was held to be sufficient evidence of possessing [467] i*- Internal evidence is in all cases to be had recourse to, for the purpose of ascertaining whether a book produced is or is not a receiver's book (Doe d. Webber v. Thynne, 10 East, 20G) ; and such books have been admitted in evidence, even though the hand-writing could not be proved. (Jones v. Waller, Gwill. 847.) An entry by a midwife of the birth of a child, referring to his ledger, is evidence of the child's age. (Higham v. Ridgway, 10 East, 109.) 2JAC. &W. 468. SHORT V. LEK 707 The Master of tlie Bolly[tiir Thomas Plainer]. It would luive been more satisfactory if the witness had proved that he had seen Beale write, but I think there is reasonable proof that the book is in his hand-writing. Still it appears to me that there is not enough to warrant the Court in receiving it as evidence. The foundation for the admissibilityof this species of evidence is to be had by ascertaining clearly the character filled by the writer. Though the cases have gone a great way in favour of rectors, in making the books and papers of their predecessors evidence for them, yet in all these cases, the first point is to prove the character of the individual who wrote them; if you fail in this, they cannot be evidence. If the writings of persons not invested with the proper characters were received, nothing could be more dangerous to property. Suppose that Beale was not the person authorized to collect the tithes, but nevertheless had for some purpose made these entries ; then if after his death the book, purporting to be a collector's book, was to be evidence to prove that he was collector, and his being collector was to prove the entries to be correct, the consequence would be, that the rights of the rector on the one hand, or those of the parishioners on the [468] other, would be exposed to the greatest danger, and perhaps from the writing of a person having a contrary interest. In Jones v. Waller, I suppose they must have found by some evidence that the book was written by a collector ; when you fix him with that character, his entries become evidence, and the principle is the same with stewards' books, and in the case of the midwife's memorandum. The character of a tithe collector is a private one ; it may or may not exist, for the lessee may collect either by himself, or through the medium of an agent. It is not like those public offices which have been alluded to, which must exist, and with respect to which you may therefore presume that a person who acts in them has been appointed. Here, on the contrary, you have first to raise the character into existence, and then to prove that this person filled it. Supposing that Heathfield was the lessee, which is not proved, for though he paid rent to the college, it does not appear for what, yet still non constak that there was any collector. In all the private relations of life, you do not presume the existence of the particular character, nor does a person's acting in that character prove that he possessed it. Cases have been cited of acting in a public character having been held evidence against the party of his holding that character, and sometimes against third persons, but there is no instance where that has been extended to private situations. How extremely mischievous it might be in commerce. It would let hi a very dangerous latitude if the Court were once to dispense with that which is an essential preliminary before any writing, not verified on oath, can be made evidence, and which must be established by proof aliunde. [469] On the part of the Plaintiff some ancient parchment rolls were produced, purporting to be accounts of the collection of the tithes of Woodbury, by proctors appointed by the college for 36 different years, between the years 1401 and 1495 ; the reception of these documents was objected to. It appeared that the rectory of Woodbury was granted to the custos and college of vicars choral by Henry Marshall, Bishop of Exeter, some time between the years 1191 and 1203, and by the grant it was directed that the vicars should annually choose a proctor to collect the tithes. The grant was confirmed by the succeeding Bishop of Exeter, W. Brewer, in the year 1228, and afterwards by letters patent of the 6th Henry IV. A.D. 1405, by which the college was incorporated : and a book was produced from the muniment room of the college, purporting to be a copy of certain statutes made about the same period for their government, by which, amongst other things, it was provided that yearly, on the feast of St. Gregory, two proctors should be chosen to receive and dispose of the tithes of Woodbury. The college consisted of a custos and 24 vicars, all of whom were formerly ecclesiastical persons. The rolla in question were found in their muniment-room, and purported to be the accounts of the proctors. They were, with some slight variations, in the following form...
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