1851. HUNT บ. THE GREAT NORTHERN RAILWAY CO. payment payable under the special act for any passenger, animal, carriage, goods, merchandise, articles, matters, or things conveyed on the railway." [Williams, J. How does the title to any toll come in question here?] By the title coming in question, is not meant, whether the party is seised of any hereditament to entitle him to demand the toll; but whether he is entitled to the toll he claims to exact. [Williams, J. The question is, not what is the meaning of "toll" in the railway acts, but what is the meaning of that word in the county-courts act.] JERVIS, C. J. To entitle the defendants to a prohibition, there must be a bonâ fide dispute as to their title to toll: I think that did not and could not come in question here. CRESSWELL, J. The question whether the company have a right to make a charge for returning empty waggons is no doubt a very important one; but it does not raise such a question as is contemplated by the proviso in the 9 & 10 Vict. c. 95. s. 58. WILLIAMS, J. The obvious course was to come for a certiorari. Rule refused. 1851. HUGHES v. CLARK. DEBT for rent upon an indenture of lease. April 30. In debt for rent on an indenture, cover, on pro counterpart stamp, and on proof of its execution by the defendant, At the trial, before Maule, J., at the first sitting at Westminster, in this term, the plaintiff produced a deed, and called one Pinkett, the attesting witness, who proved the execution by the defendant: but, upon his duction of a cross-examination, the witness said he did not see the deed bearing a plaintiff execute it, nor was he aware that any deed had been executed by the plaintiff at that or at any other time. The deed produced had two seals affixed to it, and was stamped with the ordinary counterpart stamp. On the part of the defendant, it was contended, that, in the absence of proof that the deed produced was duplicate or counterpart, it must be assumed to be a lease, and consequently that the stamp was insufficient. a The learned judge declined to nonsuit the plaintiff, but reserved leave to the defendant to move; and a verdict was found for the plaintiff, damages 4251. Corrie now moved to enter a nonsuit. He submitted that the indenture in question was under the circumstances inadmissible. [Jervis, C. J. Suppose it had appeared that two deeds were executed, and that one only was stamped, would the counterpart (unstamped) have been admissible?] In Garnons v. Swift (a), it was held, that, if two parts of an instrument are prepared, but only one is stamped, the party having the custody of the unstamped part may give secondary evi (a) 1 Taunt. 507. --without going on to prove the exe cution of a lease by him self. 1851. HUGHES v. CLARK. dence of the contents of the agreement, if the other party refuse to produce the stamped part. The only case that seems to militate against this argument, is that of Paul v. Meek (a), where it was held that a lessee, who executes the counterpart of a lease, cannot dispute its admissibility in evidence, or impeach its validity, upon the ground of the original not being properly stamped. Alexander, C. B., there says: "A similar question was decided by Sir W. Grant, in a case the name of which I do not remember, and which is not reported upon this point. It was a bill for a specific performance, in which the plaintiff stated an agreement, which was admitted by the defendant in his answer. The case came on to be heard at the Rolls, when Sir Samuel Romilly, who was of counsel for the plaintiff, produced the agreement, without adverting to the circumstance of its not being stamped. I objected, upon that ground, that the court would make no decree; to which it was answered, that the agreement, being admitted by the answer, might be read from the bill, after reading the admission in the answer: against which I protested, on behalf of the defendant. But Sir W. Grant said that the statute did not alter the rules of evidence, and that it was competent for the plaintiff to resort to the agreement as stated in the bill, and admitted by the answer; and upon that ground made the decree, although the agreement was not stamped. This seems to me to be a parallel case with the present. By executing the counterpart, the defendants are estopped from objecting to its admissibility, and it was therefore receivable in evidence against them." [Jervis, C. J. The case put by the chief baron is the case of Slatterie v. Pooley (b).] Hullock, B., says: "Having executed the counterpart, the defendants were precluded from (a) 2 Y. & J. 116. (b) 6 M. & W. 664. objecting to its admissibility, and from impeaching its validity by producing the original lease. If the defendants could not produce it, it was not necessary for the plaintiffs to do so. That has been decided in several cases. In Roe d. West v. Davis (a), which was an action of ejectment upon a clause of re-entry in a lease, on nonpayment of rent, against the assignee of the lease, a counterpart was received as sufficient evidence of the holding upon that condition. The case of Burleigh v. Stibbs (b) is a still stronger decision. In that case, it was held that a counterpart of an indenture, executed by the defendant, in which it was recited that one Rider had put himself apprentice with the defendant, was sufficient evidence against the defendant, that Rider had executed the other part of the indenture, although the declaration proceeded upon the indenture executed by Rider. It seems to me, therefore, that this counterpart was admissible as original evidence, and precluded the defendants from going into proof of the original lease." There, it appeared that a lease had in fact been executed, though, as it was held unnecessary to produce it, the court could not see that it was insufficiently stamped. Here, however, a different question arises: the evidence, as far as it goes, shews that the deed produced was the only one executed between the parties. [Cresswell, J. Why are we to assume that the instrument produced is a lease, when the tenant produces it?] It clearly was incumbent on the plaintiff to shew affirmatively that the instrument he produced was a duplicate or counterpart, before he could be allowed to avail himself of the lesser duty. [Jervis, C. J. The tenant executes an instrument assuming that he is a tenant under a valid deed is it a violent presumption that he held under a proper deed? Cresswell, J. By pleading non 1851. HUGHES v. CLARK. 1851. HUGHES v. CLARK. est factum, the defendant admits that the plaintiff demised the land to him by deed; he denies that he executed the counterpart.] Suppose it had been clearly proved that this was the only deed between the parties, would the court hold this deed with a counterpart stamp to be admissible upon this issue? [Cresswell, J. Paul v. Meek seems to shew that it would.] Pitman v. Woodbury (a) is very much in point. There, the plaintiff declared in covenant on an indenture bearing date the 25th of March, 1838, made between the plaintiff and the defendant (profert), whereby the plaintiff then demised to the defendant a certain messuage, with the appurtenances, for the term of seven years, and the defendant did thereby covenant with the plaintiff that he would, yearly and every year during the term, keep the premises in good repair, and give them up in good repair at the end of the term; by virtue of which demise the defendant entered upon and enjoyed the said demised premises. The breach laid, was, for not keeping the premises in repair during the term. The defendant, after setting out the deed on oyer, pleaded, that his part of the indenture was executed by him after the alleged day of the execution thereof; and that the plaintiff's part was never executed by him, or by any agent of his thereunto lawfully authorised; nor was there ever any demise of the said premises to the defendant, from the said day, for the said term; nor was there ever any lease of any part of the said premises put in writing and signed, or made, signed, sealed, or delivered by the plaintiff, or by any agent of his thereunto lawfully authorised by writing or otherwise; and that, although, before the making of the indenture, to wit, on the 25th of March, 1838, the plaintiff demised the said premises for the term of one year, and so on from year to year, by (a) 3 Exch. 4. |