or chapel in England and Wales, (0) under the hands and feals of five or more of the trustees in the faid' act named and appoynted." "All thofe 18 acres of lands, &c." The lands were then particularly fpecified, and all together amounted to the exact number of 18 acres. The defendants attempted to account for the poffeffion of the Radcliffe, and Moffat families, by fhewing that for many years, they held the church lands in leafe, and contended, that they being alfo poffeffed of other estates of their own adjoining and intermixed, encroachments had been made by them upon the 1、ebendal estate, and that, in point of fact, this was not part of their freehold estate, but part of the land of the Prebendary of the Moor. LORD KENYON. The defendant cannot contradict the parliamentary furvey, it has always been confidered as conclufive. By the deeds of 1696, this property is defcribed to be in the fame poiture, as that in which it now remains, viz. as abutting upon the Harpe, and it appears that if this is not the land in questicu, the leffor of the plaintiff will have no land fo abutting. The parliamentary furvey taken by those who were then in poffeffion of the church property, defcribes it with the utinost particularity, and the quantity of which the Prebendary of the Moor is now poffeffed agrees with this defcription. This is a very ftrong argument in favour of the leffor of the plaintiff; for the perfons who then held the reins of Government, and seized the church lands, wished to make the most of them, and would not have defcribed them as of lefs extent than they really were. Gibbs, Wood, and Peake, for plaintiff. Erfkine, Garrow, and Best, for defendant. Verdict for Plaintiff. (2) See this act in Scobel's collection, ad part, page 15. Cooke and another against Lloyd. Salop Sum. Aff. 1803, cor. Le Blanc. J. (page 87.). THIS was an issue directed out of the Court of Chancery to try whether Jofeph Phillips was the eldest fon of John 1 bulips and Mary his wife lawfully begotten. The iffue was directed in confequence of a bill filed by the plaintiffs who claimed under Jofeph Phillips against the defendant, whole father had purchased from from Philip Phillips, an elder fon, but who, it was contended by the plaintiffs, was born before the marriage of his parents. The fingle point in the cause therefore was, when John Phillips and Mary Phillips were firft married. On the part of the plaintiff they called a great number of witneffes who spoke to declarations of the parents that they never were married till 1759; that the father when in anger called lis wife a whore, and his children born before that marriage baftards, and that on his death bed he pointed to Jofeph Phillips as his heir, and the perfon to whom his eftate (which was fettled) would defcend after his death; they proved from the register of the parish where they lived the entry of their marriage on the 16 April 1759, previous to which, Philip and several other chil dren had been born. They also called the mother herself who pofitively swore, that though she went to town for the purpose of being married in the Fleet, yet that in fact she never was mar ried there, nor any where elfe before 1759. They alfo offered evidence of the declarations of Philip Phillips, who was dead, (made after he had conveyed to the defendant's father,) that he was a baftard; that all the world knew he was fuch; and that that was the reafon of his felling the land fo cheap to Lloyd who might fight it out with his brother Joseph. The defendant's counfel objected to this evidence, contending that nothing faid by Philip, after he had conveyed to Lloyd, could be received in evidence to prejudice his rights. LE BLANC. J. faid, that a declaration made under fuch circumftances was entitled to very little credit, and would avail nothing of itself, but that he thought it admiffible as the reprefentation of one of the family of the degree of relationfhip he bore to it. This evidence was therefore received. The defendant proved that the mother, whofe name was Mary Guefs, living in the fervice of John Phillips's mother, banns were published in the year 1747; that those banns being forbidden by his mother, he and Mary Guefs went to London together for the pur pofe (as they faid) of being married in the Fleet; that, on their return, they gave out that they had been fo married; that they afterwards lived on the eftate, and were vifited as man and wife by the neighbours, and at last by his mother herself. That on June 7, 1772, John Phillips, by an instrument under his hand, reciting that he had fuffered a recovery of the estate, and being only tenant for life, had thereby committed a forfeiture, attorned tenant of the premises to Philip as his eldest fon. That afterwards another recovery [3] recovery was fuffered, to which John as tenant for life, Mary as his wife, and Philip as his eldest fon, and the remainder man in tail were parties. That n a motion in the Court of Common Pleas refpecting this recovery, John Phillips and Mary, who to day had worn that he never was married, had made an affidavit wherein they fwore that they had been married in the Fleet by. one Dare, in the year 1747; and that the marriage in 1759 was only from greater caution to fecure the wife after his death. To corroborate all this they offered the Fleet books, wherein this marriage was entered as having taken place on 28th May 1747, and on Le Blanc, J. faying they were no evidence whatever, they called a witness who faid that there being a question in the year 1761 as to this marriage, he examined thefe books then in the poffeffion of a man who faid he was clerk to Mr. Dare, and that the entry then stood in the books in the fame state as it was now. LE BLANC, J. This evidence carries the cafe no further, the witnefs had no knowledge of the fact, but fuch as he derived from the books which were no more evidence then than they are now; the entry is nothing more than a private memorandum made by fomebody who had no authority to make it, and who might put down any thing he pleased, whether true or false. The Jury found for the Defendant. Williams, Serg Clifford, and Abbot, for plaintiffs. Dauncey, Wigley, and Wynne, for defendant. Leeds against Cooke and Wife. K. B. Sittings at Guild hall, after Hil. Term, 43 Geo. 3. (page 97.) ASSUMPSIT on breach of promife of marriage by the wife while fole. The defence fet up was the improper conduct of the plaintiff; and, amongst other evidence, a Miss Turpin was calied to prove that the plaintiff had, within three or four days after the elopement of Mrs. Cooke from her father's house, and before it was known whether she had married or not, written a letter to the witnefs containing an offer of marriage. The witness had been ferved with a fubpœna duces tecum to bring the letter, and on being called faid, that after that writ had been served on her, fhe had delivered the letter to the plaintiff. No notice had been given to him to produce it, and on an objection that for want of fuch notice, the witness could not fpeak to its contents. LORD ELLENBOROUGH faid, that being delivered to the plaintiff after the fubpœna duces tecum had been ferved, and in fraud of that writ, in odium fpoliatoris parol evidence might be given. Otherwife a witnefs, being the friend of the party against whom he was fubpoenaed, might always avoid the effect of the fubpœna by delivering over the paper to the party. The witness could not be induced to recollect the terms of the letter, but another perfon by whom it was fent proved its contents; and this witness alfo proved a verbal offer of mar riage to her a few days afterwards. The Plaintiff had is. damages. Erskine, Gibbs, and -, for Plaintiff. Garrow and Lawes, for Defendants. Keeling v. Ball. K. B. Sittings at Guildhall, after Eafter Term, 36 G. 3. (page 98.) DEBT on bond for 2007. made by John Ball, the brother of the defendant, and to whom he was heir at law. The declaration ftated, that the bond was loft by accident. Pleas non eft factum, & folvit ad diem. The plaintiff called a witness of the name of Russel, who proved that the plaintiff had delivered him a bond, purporting to be the bond of J. Ball and Edward Ball, and that he afterwards applied to the deceased (J. Ball), to pay the money due on the bond, when he acknowledged the debt and promised payment. He faid the bond was printed in the common form, (Þ) and that there were fubfcribing witnesses names, but that he did not know the names of those witnesses, nor by whom the bond was prepared. That he afterwards delivered the bond to Carter, the attorney, for the purpose of commencing an action against the deceased. Carter was next called, and proved that the bond was loft, while in his office. (P) Which includes the word heirs. GIBRS, GIBBS, for the defendant, objected that the plaintiff should have called one of the fubfcribing witneffes to prove the execution of the bond, or elfe have fhewn that fuch witness was dead. It had for a long time been doubted, whether fuch a mode of pleading as the prefent, could be fupported (9); and Courts should not carry the indulgence too far. The plaintiff, in this cafe, might be in a better situation by reafon of the negligence of his agent, than he would have been in, had due diligence been used; for had the fubfcribing witness been called, the defendant might cross-examine him as to the nature of the transaction. The attorney, Carter, he contended, had been guilty of fome negligence; for he might have kept a copy of the bond; and had that precaution been taken, the fubfcribing witness might have been called. If LORD KENYON faid, that had it appeared who the fubfcribing witneffes were, the plaintiff muft certainly have called them; but that it was the business of Courts of Justice, to apply the general principles of the law to new cafes as they arife. This was a new cafe, for it did not appear that the plaintiff could, by any poffibility, know who the fubfcribing witneffes were. it was ufual for men to keep copies of fuch inftruments by them, the plaintiff's attorney, Carter, would certainly have been guilty of negligence, and the plaintiff could not avail himself of that negligence; but that was not the ordinary mode in which men conducted themfelves. Suppofe a fire had happened, and this bond had been deftroyed by it, furely it would be adding calamity to calamity, to call on the party for more perfect evidence, and how could this cafe be diftinguished from that. The general rule of law is, that the best evidence must be produced, which the nature of the cafe will admit of; and no better evidence could have been procured in the prefent cafe, than that which the plaintiff has given. Garrow and Abbot, for plaintiff. Verdict for Plaintiff. (9) Vide Reed v. Brookman, 3 T. Rep. 151. Cary v. Pitt, Efq. K. B. Sittings at Westminster after Eafter Term, 37 G. 3. (page 102, 105.) ASSUMPSIT on a bill of exchange (drawn by one Creston), against the defendant as acceptor. The defendant infifted that the |