CASES

AT

NISI PRIUS.

COURT OF QUEEN'S BENCH.

Sittings at Westminster after Trinity Term, 1841.

BEFORE LORD DENMAN, C. J.

1841.

DOE, on the demise of STURT, v. MOBBS.

June 26.

EJECTMENT to recover a piece of garden ground situ- In ejectment to

ate at Hoxton.

The case on the part of the plaintiff was, that the defendant had, in the year 1839, been let into possession of this piece of ground by a person named Mathews, who

recover garden ground, it was

proved for the

plaintiff, that the defendant into possession of the garden by M., who had

had been let

paid rent to the lessor of the plaintiff. The defendant's case was, that M. had rented a part of his garden of the lessor of the plaintiff, and that that had been given up, and that the defendant had the residue of the garden, which was now in dispute, devised to him by his father's will in the year 1791. The lessor of the plaintiff proposed to give evidence in reply, to shew that, from the year 1794, the lessor of the plaintiff and his father received rent for the piece of ground in question :-Held, that the evidence was receivable.

A deceased receiver of rents had rendered to his employer annual accounts of the rents received from property at H. The accounts were not signed by any one. One of the accounts was in the hand- writing of a deceased clerk, but on it was written, in the hand-writing of the receiver, "H. rents ;" another account was in the hand-writing of the son of the receiver, who proved that he made it out by the authority of his father, and that the account was rendered to the employer, as was the usual course :-Held, that, under these circumstances, both these accounts were receivable in evidence as the accounts of a deceased agent charging himself to his principal.

VOL. I.

B

N. F.

1841.

DOE

d. STURT

v.

MOBBS.

had been a tenant of Mr. Sturt, the lessor of the plaintiff, and evidence was adduced in support of that case.

For the defendant it was opened, that Mathews never held this piece of garden ground of Mr. Sturt, but that of Mr. Sturt he only held an adjoining piece of garden ground, called Bartlett's Garden, (not fenced off from the ground in question); and that the ground called Bartlett's Garden had been given up to Mr. Sturt by the defendant; and the defendant's counsel relied upon the will of the defendant's father, dated in 1791, (which was put in), as devising the land in question to the defendant, and nearly 300 acres of other land in the neighbourhood. It appeared that the defendant's father had died in Shoreditch workhouse.

Platt, for the plaintiff, proposed to give evidence in reply, to shew that for a series of years, commencing with the year 1812, Mr. Sturt received rent for the ground in question, as part of his Hoxton estate.

Erle.-I submit that this cannot be done. Evidence in reply is only receivable either to contradict some witness that I have called, or to deny our title as we have set it up.

Lord DENMAN, C. J.-I think that the evidence is receivable. The lessor of the plaintiff made out a complete primâ facie case, by shewing that you came into possession under his tenant Mathews. You set up a new case, with a view of shewing that Mathews did not hold this piece of ground of the lessor of the plaintiff, and that it was included in the devise contained in the will of the defendant's father. The other side propose to answer this by shewing, that it did not belong to the defendant's father, because it formed a part of Mr. Sturt's property. I think that I must receive the evidence (a).

(a) See the case of Doe d. Goslee v. Goslee, 9 C. & P. 46.

On the part of the lessor of the plaintiff Mr. Clarkson was called. He said, "My father, Mr. Romayne Clarkson, who is dead, was the receiver of rents for Mr. Sturt's Hoxton estate for several years, from the year 1812; I have been present when he has received some of the rents; this is an account of the rents received from the tenants of the Hoxton estate for 1812; it is in the hand-writing of a deceased clerk of my father's, named Dixon; there is an indorsement upon it in my father's hand-writing, it is the words Hoxton rents;' the account is not signed by any one; the whole account is on one piece of paper."

Erle for the defendant.-I submit that this account is not receivable in evidence. It has no signature.

Platt. There is an indorsement on it in the hand-writing of Mr. Romayne Clarkson, and he is the person who, by the account, is charged with the receipt of the money.

Erle. There is nothing in this account which would have charged Mr. Romayne Clarkson in an action.

Lord DENMAN, C. J., (to the witness).—Mr. Clarkson, are you enabled to say, that accounts in this form were rendered annually by your father during the time he continued receiver?

Mr. Clarkson.-I am, my lord.

Lord DENMAN, C. J.-I think that I must receive this account in evidence. Upon the evidence that has been given to day by Mr. Clarkson, his father could have been charged in an action founded on this account.

The evidence was received.

Mr. Clarkson.-"This is another account for the year 1814; it is in my own hand-writing; there is not any of