being tithe free, old rates made by the parish officers of B. on the occupiers of the land in question, and an account containing an overseer's account, in which, against the sum for which the occupier of that land had been assessed, there were crosses made, were held to be evidence, that the sums assessed had been paid by the tenants. Moreover, the map annexed is made evidence by the 64th section of the 6 & 7 Will. 4, c. 71. [Maule, J.-That is as between the parties themselves, but not as between third parties.] The 7 Will. 4 & 1 Vict. c. 69, followed by the 2 & 3 Vict. c. 62, which was amended by the 3 & 4 Vict. c. 15, enables the tithe commissioners to set out new boundaries of parishes. This question was discussed in the case of In re Dent (a). [Coleridge, J.-How would these documents be evidence that the place in question was in the county of Norfolk, the evidence would merely shew that the place was not in Southtown, in the county of Suffolk.] They would form a step in the evidence.

Palmer, in reply, was stopped by the Court; who intimated that they would hear him on a future occasion, if they should find it necessary to do so.

Cur. adv. vult.

The judgment of the Court was now delivered by

COLERIDGE, J.-The decision of this case depends upon the admissibility of two documents, which were tendered in evidence at the trial and received after objection made. If either was inadmissible, a venire de novo may be awarded.

The issues joined on the pleas were, first, that the defendants did not take the goods modo et formâ; secondly, that they took them in the parish of Gorleston in Southtown, in Suffolk, absque hoc, that they took them in Norfolk. To this plea, in order to have a return of the goods replevied, (a) 8 Q. B. 43.

1854.

HAMMOND

V.

BRADSTREET.

1854. HAMMOND

V.

an avowry was added, that the goods were taken by the defendants as overseers of the parish of Gorleston in SouthPRADSTREET. town, under the authority of the 43 Eliz. The plaintiff, to prove that the goods were taken in Norfolk, tendered in evidence a map. [His Lordship read the description of it given at the commencement of the report, and proceeded]. One question argued before us was, whether this map came from the proper custody. In one sense it did, for it was produced by a gentleman who bought it twelve years ago. But the fact of its being in the custody of the party who had such lawful possession of it, does not at all vouch for its authenticity, nor that it is what it professes to be. It is wholly unlike the case of a deed purporting to be a conveyance of land. If such a deed is found in the custody of the party, who, if it were such conveyance, would have a right to it, and kept amongst his title deeds, such custody tends to shew that it is what it professes to be. But that argument does not apply here. The custody, therefore, does not tend to shew that the map was what it professes to be. But assuming it to be what the inscription upon it declared it to be, a map prepared in 1766, in part from an older map in 1736, by Joshua and William Kirby, sons of John Kirby, who made a survey in 1736, at the utmost, this was only a declaration by Joshua and William, that they believed the boundaries to be as described by them, or, that they were as described by them. What circumstances were given in evidence to render such declaration admissible? The relation of Joshua and William to John Kirby would not have that effect. They do not appear to have been deputed to make the map by any persons interested in the question, nor to have any knowledge of their own on the subject, nor to have been in any way connected with the district, so as to make it probable that they had such knowledge. The grounds on which an ancient pedigree is received in evidence are, therefore, wanting in this case: see

Davies v. Lowndes (a). We think, therefore, that this map was inadmissible.

1854.

HAMMOND

V.

The second question arose on the admission of a tithe ap- BRADSTREET. portionment with the map referred to in it and annexed to it. The former confirmed, and both signed and sealed, by the tithe commissioners. This question is attended with some difficulty, and we have not come to any clear opinion on it; if by deciding it now we should have rendered assistance to the learned Judge who may have to try the issue, we should have felt it right to do so; but as upon our decision new facts would, probably, be added, and a new question presented, we have not thought it necessary to express our opinion; the bill of exceptions leaves the case at present, as to facts on which the decision might turn, by no means clear.

There must be a venire de novo.

Venire de novo.

(a) 6 M & Gr. 527.

MEMORANDUM.

DURING this Vacation, P. Erle of the Middle Temple; E. B. Denison, of Lincoln's Inn, Esqrs., Barristers-at-law, were appointed her Majesty's Counsel; and R. P. Collier, and T. Phinn, of the Inner Temple, Esqrs., Barristers-atlaw, received patents of precedence, and in the following Michaelmas Term took their seats within the bar accord

ingly.

VOL. X.

Ꭰ Ꭰ

EXCH.

1854.

REGULE GENERALES.

REGULA GENERALES.

MICHAELMAS VACATION, 18 VICT.

IT IS ORDERED, That the practice to be observed in the superior Courts of Common Law at Westminster, with respect to the matters hereinafter mentioned, shall be as follows; that is to say,

1. The provisions as to Pleadings and Practice contained in the Common Law Procedure Act, 1852, and the Rules of Practice of the superior Courts of Common Law made the 11th January, 1853, and also the Rules of Pleading which came into operation on the first day of Trinity, 1853, so far as the same are or may be made applicable, shall extend and apply to all proceedings to be had or taken under the Common Law Procedure Act, 1854.

2. Every affidavit to be hereafter used in any cause or civil proceeding in any of the said superior Courts of Common Law shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule. This rule not to be in force till the first day of Easter Term next.

27th November, 1854.

CAMPBELL.

JOHN JERVIS.
FRED. POLLOCK.

J. PARKE.

E. H. ALDERSON.

C. CRESSWELL.

W. ERLE.

SAML. MARTIN.

CHARLES CROMPTON.

R. B. CROWDER.

1854.

FORMS OF PROCEEDINGS.

The forms of proceedings contained in the Schedule hereunder may be used in the cases to which they are applicable, with such alterations as the nature of the action, the description of the Court in which the action is depending, the character of the parties, or the circumstances of the case may render necessary; but any variance therefrom, not being in matter of substance, shall not affect their validity or regularity.

REGULE GENERALES.

SCHEDULE.

1. Issue of Fact to be tried by a Judge without a Jury. [Proceed as in an issue to be tried by a jury as in ordinary cases, until the joinder of issue, and then thus:] And the parties aforesaid having, by consent in writing duly signed, left the decision of the said issue [or "issues"] to the Court, it was on the -day of 18- (date of rule or order for allowance of trial), by a rule of this Court [or "by an order of the Honourknight, one of her Majesty's Justices of her Court of Queen's Bench [or "Common Pleas," or 66 one of the Barons of her Majesty's Court of Exchequer," as the case may be] Ordered that such trial should be allowed; therefore let the same be had accordingly.

able Sir

2. Subpana thereon and in other Cases.

[The same as the form now in use, but in all cases omit the words "by a jury."]

3. Nisi Prius Record therein.

[The same as the form already directed by Rule of Hilary Term, 1853.]

4. Postea therein, on a Verdict for Plaintiff on all the Issues, where the Cause is tried in London or Middlesex, and where the Defendant appears at the Trial.