Page:The English Reports v1 1900.pdf/1539

as evidence for him, the orders or decrees, and other the proceedings in the court of Chancery, in the old cause wherein Richard Balam, clerk, was plaintiff, and Thomas Ashfield and the Countess of Devonshire and William Dell were defendants; but the court were pleased to refuse to suffer the appellant to read the said orders and proceedings, and ordered that it should be referred to a trial at law, to be had at the then next assizes to be held for the county of Bucks, upon this issue, whether five quarters, or any other and what quantity of wheat, had been anciently and yearly due and payable by the impropriator or impropriators of Chesham Leicester, or by his or their tenant or tenants, to the chaplain of Latimers for the time being; and whether any and what sum of money had been yearly paid in lieu thereof to the said chaplain by the said impropriator or his tenant; and that after the trial such further directions should be given as should be just.

The trial was accordingly had at the ensuing Lent assizes, when the jury found a verdict for the respondents; and the cause being again heard on the 21st of June 1731, upon the equity reserved, the court were pleased to dismiss the appellant's bill with costs both at law and in equity.

The appellant therefore appealed from both these decrees; insisting (C. Talbot, J. Willes), that by the old decree and proceedings in the court of Chancery, his right to the five quarters of wheat, payable out of the parsonage of Chesham Leicester, was plainly established, that decree being founded upon a certificate made by three gentlemen of note and character in the county where the matters in question arise, and in a cause where all the necessary parties were before the court, and particularly Mr. Ashfield, the owner of the parsonage, whose interest was thereby bound; the court of Exchequer ought therefore to have permitted this decree and proceedings to be read as evidence, and more especially as the respondent Sir Francis claimed under Mr. Ashfield; and if the same had been so read, there would have been no occasion to direct a trial at law, but the respondents, or one of them, ought to have been decreed to pay the appellant the arrears of the £8 per ann. from 1708, and the five quarters of wheat for the future.

On the other side it was contended (P. Yorke, D. Ryder) to be the constant and known practice of the several courts of law and equity, not to permit any decree or order, made in any other canse in any other court, to be read as evidence, without first producing the whole proceedings in such cause, that the court might be informed upon what foundation such decree or order had been made, and whether the same had been fairly obtained upon defence and debate of the matter, or ex parte and by surprise. That [601] the appellant did not produce any answer of the defendant Ashfield, and there being no recital in the decree, the court could not be informed by any thing but the acts of the then plaintiff, what was the matter in dispute; whether Ashfield was at that time impropriator of Chesham Leicester, or whether he put in any answer, or made any defence, or whether the decree had been fairly obtained. That it would have been unjust in the court to have permitted a decree, made against Thomas Ashfield, to be read against the respondent Sir Francis Whishcote, as a purchasor of the rectory impropriate of Chesham Leicester under him, without the appellant's first shewing that Ashfield, at the time of making the decree, was seised of the rectory, and that he was apprised of the suit, and had made his defence; for if the court had permitted this decree to be read, it could have been no evidence against the respondents, or any charge upon the rectory, without shewing that Ashfield was at that time impropriator. Besides, it having been obtained near 100 years ago, the appellant ought to have shewn a submission thereto, and a continuance of payment by the several succeeding impropriators to the several succeeding chaplains, in order thereby to have established his right. But as he failed to do this, the directing the issues was very proper, even if the decree had been read, and the most that the appellant could have expected. That if the decree had been proper evidence in equity, it would have been so at law, and the appellant might have used and had the full benefit of it at the trial; but he did not attempt to read it there, from a sense of its not being proper evidence, and therefore had no cause to complain of any injustice done him, or of a verdict against evidence. That the directing issues touching matters of fact, of which the court has any doubt, is usual and proper, in order to inform the court of such facts as are necessary to be ascertained; and as the court had in this case directed issues. which had been found against the appellant, it was insisted, that the dismission of his bill with costs was right, and ought to be affirmed.