seize was upheld under the following circumstances. The last heriot had been seized in 1804. The next tenant died in 1824, but there was no evidence as to seizure on that occasion. The lord became owner of the manor in 1826, and in 1847 seized a heriot on the death of the tenant. No service was proved to have been paid since 1804. The Court was of opinion that as no opportunity of seizing a heriot had occurred since the lord's estate had become an estate in possession in 1826, his right of action was not barred, and that there was no presumption that the services had been released, but they held that the right to recover the quit-rent had been barred. "The second and third sections" (of the Act), said Patteson, J., "cannot be put together, so as to make the last receipt of a heriot, which only falls due at long and irregular intervals, the point of time from which the period of limitation begins to run. The twenty years must, I suppose, run from the time. when the right to have the heriot accrued" (/). The latest reported case on the point is that of Lord Zouche v. Dalbiac (m); and there the Court of Exchequer expressed great doubt whether, notwithstanding the interpretation of rent in sect. 1 of the Act of 1833, either heriot-service or heriot-custom was within the provisions of the Limitation Acts. The action was one of trespass for seizing and taking two horses, and the defendant justified his proceedings on the ground that he had the right to seize the horses as heriots, one in respect of each of the two tenements held by the plaintiff. On a replication by the plaintiff and a demurrer thereto by the defendant, it was admitted by the parties, for the purpose of the demurrer, that more than twenty years before the heriots in question became due, a heriot in respect of each of the two tenements had become due for which the lord did not seize, although he could have done so. Kelly, C. B., after referring to the terms of sects. 1, 2, 3, and 34 of the Act

(2) 17 L. T. at p. 122.

(m) L. R. 10 Ex. 172.

of 1833 (n), said: "When, therefore, we look at the literal words of these sections, it is enough to say that, but for sect. 1, the present case would clearly not be within the statute. The Court of Exchequer seems to have been of this opinion, as appears from the judgment in Owen v. De Beauvoir (o), delivered by Parke, B. No authority or dictum has been cited that heriots are within these sections, though one would have expected the case to arise more than once since 1833, the date of the statute. In considering the spirit of the statute, we must remember the essential difference between the nature of rent and of a heriot. Rent is a noun of multitude, meaning not one single sum due at some one moment which may be recovered by action, and may be lost if not, but meaning a succession of sums of money payable in general yearly, or at shorter intervals during the whole time specified. A heriot is a right to take a single specific chattel, a right arising either upon death or alienation, in a manor. is not of a continuous nature. To apply to such a subject words in the statute which are applicable only to continuous payments would be to disregard the principle and spirit of the statute; and to apply such words to a case in which no opportunity may occur of enforcing the right for perhaps twenty, thirty, or forty years, would seem to be a total departure from the intention of the legislature"; and after referring to the passage in the judgment of the Court in Owen v. De Beauvoir, quoted above (p), he continued: "It is unnecessary for our present judgment to go so far as to say that no case could arise in which 'rent' in the statute would include heriots. Bearing in mind the qualification imposed in sect. 1 upon the meaning of 'rent,' 'except where the nature of the provision or the context of the Act shall exclude such construction,' it is enough for us to say that upon the facts before us the nature of

(n) See ante, pp. 213, 214. (0) 16 M. & W. 547.

(p) Ante, p. 214.

It

the provision excludes the application of these sections to the taking of the heriots in question. This view receives confirmation from sect. 3, the effect of which, according to Owen v. De Beauvoir (q), is that the time when the right to bring an action to recover rent shall be deemed to have accrued, shall be the last time at which any rent was received. If, therefore, rent in that section includes heriots, the twenty years begin to run not from the time when the heriots became due and the lord failed to enforce the right, but from the time when the last heriot was taken; so that if the last heriot was taken in 1850 and no death occurred till 1873, the lord's title would be barred under sect. 34, though he had no opportunity of exercising his right. The view we take is fortified by the consideration of sect. 42" (which provides that no arrears of rent shall be recovered by action, &c., but within six years next after the same respectively shall have become due). "Now, if 'rent' does anywhere in the statute include heriots, it may be in sect. 42, so that the meaning may be that the heriots, the right to which accrued in 1873, cannot be recovered after six years from the time when they became due"; and Barons Bramwell, Pollock, and Amphlett concurred in the same view. From these cases it would appear to be the rule that when a heriot falls due the lord should enforce his right to the heriot within six years, and if he lets that period elapse without recovering the heriot, his right to that particular heriot will be lost; but his title to future heriots will not thereby be barred, even although the period of twenty years allowed by the Act of 1833, or the period of twelve years allowed by the Act of 1874, should elapse before another heriot falls due. It would also seem to be the better opinion that when the word 'rents' is to be taken as including heriots, it extends to all heriots, whether customary or otherwise, and not

(g) 16 M. & W. 547.

only to heriots for which distress may be made (r). But the Limitation Acts do not in general apply to services and suits for which no distress can be made; customary reliefs and customary services or dues, such as fealty or suit of court, are not therefore affected by mere neglect and lapse of time.

But what has been said with reference to customary dues which are not subject to the Statutes of Limitation, must be taken subject to the rule that a custom to be valid must be continuous. "Continual usage and practice from time immemorial makes a custom, and if a custom be discontinued, it is gone" (s). An interruption would cause it to cease, and its revival, being within time of memory, will be void. This must be understood with regard to an interruption of the right; for an interruption of possession only does not destroy the custom, but only makes it more difficult to prove; but after a discontinuance of the right, even for a day, the custom will be at an end (f). And no doubt very long negligence of the lord to enforce his right may be evidence of a release of the customary services, on the ground that a man will naturally enjoy what is his own, and that he will be presumed not to have a right which he claims, if when it would be convenient or necessary to him he has never enjoyed it in fact (u).

When the benefits of tenure are so slight, as in the case of trifling quit-rents, that the lord has neglected to assert them, no presumption will arise, in the case of freehold tenants, that the tenure has thereby been changed (~). This applies to copyholds when the manorial courts have been held unfrequently, and the lord has had no great

(r) See judgment of Amphlett, B., in Zouche (Lord) v. Dalbiac, L. R. 10 Ex. 172, 182; Darby & Bos. on Statutes of Limitation, 208-210, 224, contra.

(s) Case of Tanistry, Dav. 28 b, 32 a, 33 b.

(t) Co. Litt. 114 b.

(u) See Hillary v. Waller, 12 Ves. jun. 239, 264; Baldwin v. Peach, 1 Y. & C. (Ex.) 453.

(x) Chichester (Earl of) v. Hall, 17 L. T. 121.

object in claiming the small customary payments. In such a case a copyhold might remain in a customary tenure for a century, and nothing be done on either side by the lord or the tenant; and on a sale of the land as freehold the Court might refuse to compel specific performance of the contract, if the vendor were aware of the dormant copyhold tenure (y). If, however, the copyhold has for a long time been treated as freehold, an enfranchisement will be presumed even against the Crown, if it be in any way possible (z).

When the lord has entered on a copyhold for an absolute forfeiture, or even for a forfeiture quousque to compel the heir to come for admittance, and has held the land for twelve years, the heir's right to be admitted will be barred by the Statutes of Limitation (a), subject to the provisions

for extending the time in case of disabilities (b). The lord B 1894 neglecting to enter for a forfeiture will be barred of his 2 21,426 entry after twelve years (c).

It has been suggested that a person who should hold the land without seeking admittance, either refusing or neglecting to fulfil the customary duty, might after the statutory period claim under the same Act to hold the land discharged of all copyhold services. But it seems to be a more correct view that the fealty, suit of court, customary reliefs, and other payments which are not in the nature of rent, are not within the Statutes of Limitation (d); and that the land continues to be of copyhold tenure until something is done which can be treated as a positive act of enfranchisement.

(y) Turner v. West Bromwich Union (Guardians of), 9 W. R. 155; S. C., 3 L. T. N. S. 662; Price v. Macaulay, 2 De G. M. & G. 339, 344.

(z) Roe d. Johnson v. Ireland, 11 East, 280; In re Lidiard and Jackson's and Broadley's Contract, 42 Ch. Div. 254,

(a) Walters v. Webb, L. R.5 Ch.531. (b) 3 & 4 Will. IV. c. 27; 37 & 38 Vict. c. 57, s. 5.

(c) Whitton v. Peacock, 3 Myl. & K. 325; Doe d. Tarrant v. Hellier, 3 T. R. 162, 172; and In re Lidiard and Jackson's and Broadley's Contract, 42 Ch. Div. 254, 258.

(d) See Dart's V. & P. 467.