Warren ex Demiss' Webb v Greenville
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 1079
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
warren ex demiss' webb vers. greenville. A surrender of tenant for life shall be presumed on a recovery of forty years standing. Upon a trial at Bar, the lessor of the plaintiff claimed under an old in tail in a family settlement, by which part of the estate appeared to be in jointure to a widow at the time her son suffered a common recovery, which was in 1699. And the defendants not being able to shew a surrender of the mother's estate for life, it was insisted that there was no tenant to the prrecipe for that part, and the remainder under which the lessor claimed was not barred. To obviate this it was insisted by the defendant, that at this distance of time a. surrender should be presumed; according to 1 Vent. 257 (a), and what is laid down in Mr. Pigot's book of Common Recoveries (b); and to fortify this presumption they offered to produce the debt book of Mr. Edwards an attorney at Bristol long since deceased, where he charges 321. for suffering the recovery, two articles of which are, for drawing a surrender of the mother 20s. and for ingrossing two parts thereof 20s. more, and that it appeared by the book the bill was paid. And this being objected to as improper evidence, the Court was of opinion to allow it, for it was a circumstance material upon the inquiry into the reasonableness of presuming a surrender, and could not be suspected to be done for this purpose; 1080 EASTER TERM, 13 GEO. 2 2 STRANOE, 1129. that if Edwards was living he might undoubtedly be examined to it, and this was now the next best evidence. And it was accordingly read (1). After which the Court declared, that without this circumstance they would have presumed a surrender ; and desired it might be taken notice of, that they did not require any evidence to fortify the presumption, after such a length of time (2). (a) 3Keb. 310. 1 Mod. 117, S. C. (6) P. 41. (1) Entries in private books or memorials are only admissible as evidence to affect the rights of third persons, upon proof that the writer is dead, and that they are in his hand-writing. Dutchess of Marlborough v. Guidot, cited 2 Vez. 193. In Lefebure v. Warden, ib. 55, with this restriction they seem admissible in four cases. First, where the party charges himself by that entry with the receipt of money. Smartle v. Williams, cited by Lord Hardwicke in Montgomerie v. Turner, Bull...
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