WHALEY v CARLISLE and Others

• Jurisdiction: Ireland
• Judgment Date: 31 January 1866
• Date: 31 January 1866
• Court: Court of Common Pleas (Ireland)

Common Pleas.

WHALEY

and

CARLISLE and Others.

Kinglake v. BevissENR 7 C. B. 456.

Knight v. Marquis of Waterford 4 Y. & C. 283.

Whyte v. Dowling 8 Ir. Law Rep. 128.

Regina v. O'Connell 7 Ir. Law Rep. 261 (per Crampton, J. 309)

Bain v. Whitehaven and Furness Junction Railway Co. 3 H. of L. Cas. 1.

Rowe v. BrentonUNK 3 M. & R. 268.

Higham v. Ridgway 2 Smith's L. Cas. 249.

Warren v. GreenvilleENR 2 Strange, 1129.

Doe v. Michael 17 Q. B. 276.

Rex v. JonesENR 2 Camp. 131.

Warren v. GreenvilleENR 2 Strange, 1129.

Higham v. Ridgway 2 Smith's L. Cas. 249.

Musgrave v. Emmerson 16 Law Jour., Q. B. 174.

Rhodes v. Hunter 2 H. & B. 589-90.

Doe v. BevissENR 7 C. B. 456.

792 COMMON LAW REPORTS. H. T. 1866. CommonPleas. WHALEY v. CARLISLE and Others. Knox, Lord Bishop of Down and Connor, to recover said advowson, 2. The fact that the ba- the fee-simple of which he claimed to be entitled to. The case had lance on foot of a debtor come to trial on four occasions, and had resulted in different and creditor account is verdicts ; but, owing to some fatality, these trials had proved struck in fa vour of the abortive on the three former occasions, and the case now came party having made the en- before the Court on cross bills of exceptions, on the grounds of the try and since deceased, does reception of illegal evidence and of misdirection respectively. not prevent the The principal question raised upon the pleadings was, whether a entries in the account from deed, bearing date the 12th day of June 1793, made between Sir being admissi- ble in evidence den Clotworthy Skeffington Earl of Massareene, did really pass all. as entries a- gainst interest. the interest of the said Earl of Massareene in the said advowson, 3. Entries of a debtor and as it purported to do, or whether it was executed by the grantor creditor ac count, in the upon the representation of the grantee that it merely passed books of a de ceased attor- the right to the next presentation, and was fraudulent and void ney, are not to be admitted as to any further extent. Evidence was, on the part of the defendant, evince, given to show that in the year 1797 the defendant's ancestor, Lord merede ly because gi there hare items the other Massareene, had filed a bill in the Court of Chancery for the on side of the ac- purpose of having the deed set aside, and had obtained a rule nisi, count that are admitted. Whaley not appearing ; also that Whaley had, in the year 1802, 4. The facts of the present commenced an action of pare impedit, which action he did not case bring it within the rule in Doe d. Kinglake v. Beviss (7 C. B. 456), and not within the rule in Higham v. Ridgeway (1 East, 109).-CHRISTIAN, J., dubitante. 5. The Court cannot go behind the bill of exceptions on the record to ascertain what the objections made at the trial really were. 6. The affidavit of a deceased solicitor, made and filed in the course of a Chancery suit, may be admitted in evidence in conjunction with an order of the Court made upon a motion in the suit shortly afterwards, although it does not appear on the face of the order that the affidavit was used upon the motion. COMMON LAW REPORTS. 793 follow up ; and it was suggested that these two circumstances tended to show that Whaley must have felt that he had no reliance upon being able to sustain the validity of the deed. The plaintiff then went into a rebutting case, for the purpose of explaining why the Chancery proceedings had been unopposed and the quare impedit proceedings stopped, by showing that Colonel William Whaley had been detained in France by Napoleon Buonaparte, during the war which commenced in 1803 between the United Kingdom and France ; and that the said William Whaley had, at all other times, done all that in him lay to assert and maintain his rights under the said deed. For this purpose, certain evidence was put in by the plaintiff, which was excepted to by the defendant. There was also another bill of exceptions taken by the plaintiff, but the questions arising thereon were not argued. Defendants' Bill of Exceptions. To sustain the said replications and the issues joined therein, the Counsel learned in the law of the said plaintiff, did then and there produce, as a witness for and on behalf of the plaintiff, the plaintiff Richard William Whaley, who, being sworn, deposed that he was the son of Colonel William Whaley deceased ; that he was now sixty-five years of age; that when he was a boy, he was at school at Edinburgh; that in August or September 1815 he ,was brought up from school to London to see his father on his return from France; that this was the first time he had ever seen his father, who bad been detained a prisoner of war in France as a detenus by Napoleon Buonaparte, during the war which commenced in 1803 between the United Kingdom of Great Britain and Ireland and France. And the said witness then produced a certain deed, purporting to bear date the 12th of June 1793, and to 'be made between the Right Honorable Clotworthy Skeffington, Bart., Earl of Massareene, of the one part, and William. Whaley, of the other part, whereby the said Earl of Massareene, for the considerations therein mentioned, purported to grant to the said William Whaley the advowson of the said rectory of Killead ; and a certain other deed purporting to bear date the 9th day of August 1793, and to be made between William Whaley, of the one part, and Bernard VOL. 17 100 L 794 COMMON LAW REPORTS. Ward, of the other part, whereby the said William Whaley, for the considerations therein mentioned, purported to grant to the said Bernard Ward the said advowson of the said rectory of Killead ; and a certain other deed purporting to bear date the 1st day of April 1801, and to be made between Bernard Ward, of the one part, and William Whaley, of the other part, whereby the said Bernard Ward, for the considerations therein mentioned, purported to grant to the said William Whaley, his heirs and assigns, the said advowson to the said rectory of Killead ; and deposed that he had first seen the said deeds in the custody of one Leland, his said father's solicitor, in the year 1818 ; and which deeds are by the defendants admitted to come out of the proper custody, and the signature to which said deed of the 12th day of June 1793 was admitted by the defendants to be in the handwriting of the said Clotworthy Skeffington Earl of Massareene ; and, on being cross-examined, deposed that he had presented the Reverend Skeffington Thompson to the living in dispute, after the death of the last incumbent, upon the terms of the said Skeffington Thompson paying the costs of recovering the same in this suit; and that the said Skeffington Thompson bad paid a portion of said costs, but that in consequence of the litigation being protracted, be (said plaintiff) had himself undertaken the expense of same in its later stages. And Counsel for the plaintiff, to maintain the issues aforesaid, then read in evidence the said three deeds of the 12th of June and 9th of August 1793, and the 1st of April 1801; which said deeds, by consent of the parties plaintiff and defendants are respectively incorporated in this record, in like manner. as if the same were set out therein in hcee verba. And Counsel for the plaintiff, further to maintain the issues aforesaid, produced as a witness one William Francis Littledale, who, being duly sworn, deposed that he is an attorney and solicitor of the Irish Courts of Law and Equity, and is the family solicitor of Richard William Whaley, Esquire, the plaintiff in this cause ; and the said witness further deposed that, in the present month of March, he went to Paris for the purpose of searching for COMMON LAW REPORTS. 795 documents connected with this case; that he obtained from Earl H. T. 1866. Cowley, the British Ambassador at Paris, a letter of introduction Cm°onPleas E Y to the Compte de Laborde, the Director-General of the Imperial WHAL v. Archives and Principal Keeper of the Archives and State Papers CARLISLE. of the Government of France ; that he accordingly waited on the Compte de Laborde, at the Palais des Archives in the street called Rue de Paradis du Temple, the building in which the French archives and state papers are kept, and in which place the papers connected with Englishmen detained as prisoners by Napoleon. Buonaparte, on the breaking out of the war with England in 1803, are kept ; that he brought with him certified copies of papers purporting to be deposited in said place, relating to the said William Whaley ; and he, in the presence of one Alexander Toulet, archivest in said office or building, compared said certified copies with the originals thereof, and same are true copies' thereof; that witness applied to the said Compte de Laborde, in whose custody those papers are, to allow him to bring with him the said original papers to Ireland for the purposes of this trial ; the said Compte de Laborde told him that he had no power to permit him to take away the originals, that such was never done, and that by the laws of France they could not be brought out of that country to foreign places. Among these papers witness found a British passport, bearing date the 22nd of April 1803, and signed by Lord Hawkesbury, Principal Secretary of State for Foreign Affairs to King George the Third. This passport has thereon the English royal arms, and contains a statement that it had been vise'd by General Andreossi, who was at that time the Ambassador of the then French Republic to England. Witness then produced a document purporting to be a copy of said passport, attested to be a true copy of the original passport remaining in the French archives. The copy so attested was produced at a former trial of this cause by the said Alexander Toulet, an officer of the said officd, whose signature is attached. Witness further deposed that he himself compared the copy with the original passport in the archives of the...