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or have been held by a freehold tenure other than common
socage.
It will be of use to notice that the tenure of
frankalmoigne or free alms was free from all temporal
service and is inconsistent with the rendering of fealty or
rent (f). Since the Reformation the uncertain spiritual
services due in frankalmoigne have in some cases been
changed to fixed religious and charitable services by au-
thority of Parliament, "but the tenure remains as it was
before" (g). Formerly most of the ancient monasteries
and religious houses held many of their lands by this
tenure, and at the present day many ecclesiastical and
charitable corporations hold by similar services, for the
tenure was not affected by the Statute 12 Car. II. c. 24.
But since the Statute Quia Emptores no one save the
Crown could grant lands in frankalmoigne (h).

This will be

ancient

A tenure in ancient demesne is proved by the mention Tenure in of the manor, of which the lands are held, in Domesday demesne. Book under the title of Terra Regis (i). shown by an office copy of the entry (j). The conversion of the tenure to "frank-fee" or common socage was formerly effected by a fine or recovery transacted in one of the superior courts, but the lord might at any time afterwards bring a writ of deceit and reverse such fine or recovery, upon which the old tenure revived. Until this took place the lands were unmarketable, unless the lord released his rights. It often happened that there was nothing on the abstract of title to show that the land was ancient demesne, and the result was that in many cases by no fault of the owner the land became nearly valueless (k).

(f) Co. Litt. 94 b, 95 a. (g) Co. Litt. 95 b.

(h) Litt. s. 140.

(i) See Yearb. Mich. 40 Edw. III. fo. 45 a, pl. 29; Griffin v. Palmer, 1 Brownl. 43; Holdage v. Hodges, 1 Lev. 106; Baker v. Wich, 1 Salk. 56; Saunders v. Welch, cited ibid. 57; Doe d. Rust v. Roe, 2 Burr. 1046.

(j) 1 & 2 Vict. c. 94, ss. 12, 13. The old method of consulting Domesday Book is described in a note to Hale's Common Law, c. 5.

(k) R. P. Comm. 1 Rep. 28, 29. The writ of deceit was abolished by 3 & 4 Will. IV. c. 27, s. 36, and 3 & 4 Will. IV. c. 74, s. 6.

Tenure in burgage.

Tenure in gavelkind.

The difficulty was removed by the Fines and Recoveries Act, 1833 (), which in this case had a retrospective effect: and by the same Act it was provided that the original tenure should be restored in all cases where the tenant should have acknowledged or recognised the tenure within the twenty years preceding January 1st, 1834 (m). If a title was stated to be of this tenure, and all fines and recoveries appeared to have been transacted in the manor court, it was never the practice to require the official proof of the tenure (n). It should perhaps be noticed that a doubt has been expressed whether lands of this tenure are within the Statute 1 & 2 Vict. c. 110, relating to judgment debts (0), but the words of the Statute appear to be wide enough to cover every tenure.

As to tenure in burgage, which it may be necessary to prove in cases concerned with a descent in borough-english, customary dower, or other customary incidents, it should be remembered that the customs of this tenure cannot be set up outside an ancient borough (p), even if the tenure is stated in letters-patent or elsewhere to be "in free burgage" (q).

With regard to gavelkind lands, the presumption is that land in Kent is of that local tenure until the contrary is proved (r). It may however be shown to have been disgavelled, or never to have been of the nature of gavelkind. The Acts for disgavelling lands in Kent affected the lands of nearly seventy of the principal land-owners, whose names are given in the Acts but without schedules of the lands affected (s). To prove that a particular estate was within one of these Acts it is necessary to show that the

(7) 3 & 4 Will. c. 74, ss. 4, 5.
(m) Ibid. s. 6.

(n) Coventry, Convey. Evid. 170;
Green v. Proude, 1 Mod. 117.

(0) Per Shadwell, V.-C., in Harris
v. Davison, 15 Sim. 128, 133.
(p) Co. Litt. 110 b.

(9) May v. Street, Cro. Eliz. 120.

(r) Burridge v. Sussex (Earl of), 2 Ld. Raym. 1292; Lushington v. Llandaff (Bishop of), 2. N. R.

491.

(s) As to the Disgavelling Acts, see Elton, Ten. of Kent, c. 16, and p. 9, ante.

land was in the particular ownership at the date of the Act (t). This is done by proving the Act, and by producing any records which bear upon the circumstances of the particular case, such as inquisitions post mortem or surrenders of monastery lands preserved among the records of the Court of Augmentations, grants of such lands by the Crown to private persons (of which the dates may be found in the Patent Rolls) licences of alienation, pardons for alienations without licence, and many other kinds of official records. The Act 31 Hen. VIII. c. 3 is printed among the general Statutes, but being of a private nature and not affecting the whole county it should be proved by a copy examined with the original on the Parliament Roll, as is necessary in the case of the other Disgavelling Acts which have never been printed (u).

manor.

The existence of a manor properly depends on the fact Existence of of there being at least two freeholders holding of the manor in fee and subject to escheat, and not upon the holding of courts (c). It is not however necessary in ordinary cases to prove the continuance of a manor, as the title to waste land and to the enjoyment of manorial rights and franchises may be supported by evidence that the manor had formerly a legal existence (y). Reputation is also prima facie proof of the existence of a manor (≈). In an action of ejectment against an encroacher upon the waste by a person who claimed to be devisee of the manor, it was held that parol evidence that the devisor of the manor had held a court many years previously, and that the devisee himself had on several occasions held courts, with proof of the appointments of gamekeepers by deputation

(t) Rob. Gav. 97; R. P. Comm. 1 Rep. App. 153, 228, 286, 350; Wiseman v. Cotton, 1 Sid. 135, 138; Elton, Ten. of Kent, 358-364.

(u) See Doe d. Bacon v. Brydges, 6 M. & Gr. 282; and see generally, as to proof of Acts of Parliament,

Taylor, Evidence, 8th ed. 1303, and
45 & 46 Vict. c. 9.

(x) Glover v. Lane, 3 T. R. 445,
447.

(y) Curzon v. Lomaz, 5 Esp. 60.
(z) Soane v. Ireland, 10 East, 259.

Proof of

boundaries of

was prima facie evidence both that the manor existed and that the devisee was lord (a). It has been said that where a documentary title can be made, very scanty exercise of the rights will support a claim to an allotment in lieu of the soil of the waste (b). In one case the existence of a manor was held to be proved by reputation "without the slightest vestige of the existence of any manorial right whatever" (c).

The boundaries of a manor may be proved in certain manor by act cases by acts of ownership, which show what has been the of ownership. meaning of ambiguous expressions in an ancient grant, for all ancient grants may be explained by modern usage to discover what was included in them; thus a series of acts of ownership upon the seashore may show that it was parcel of the manor as granted originally by the Crown (d), though in the absence of evidence to the contrary the Crown is presumed to own the shore up to the medium high-tide line between the spring and neap tides (e). Where the shore was shown to be parcel of a manor, it was held that the word "waste" was a sufficient description of the soil between high and low water mark (f). The right to take wreck upon the shore is accepted as evidence that the Crown granted the shore as parcel of the manor, though it is not conclusive (g). So the mines under freehold lands may be shown by acts of ownership to be part of the demesnes of the manor, in opposition to the common presumption in favour of the surface-owner (h). And on the same principle it has been seen that copyholders may show by evidence of user, if uncontradicted by evidence of

(a) Doe d. Beck v. Heakin, 6 A.
& E. 495.

(b) Cooke, Inclosures, 93.
(c) Steel v. Prickett, 2 Stark. 463.
(d) Calmady v. Rowe, 6 C. B.
861; Beaufort (Duke of) v. Swansea
(Mayor, &c. of), 3 Exch. 413; Att.-
Gen. v. Jones, 2 H. & C. 347.

(e) Att.-Gen. v. Chambers, 4 De G.

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the custom having been the other way, that they are entitled to the minerals or timber on their copyholds (i). Where usage, though it be not ancient, is admissible and is unopposed by other evidence, it is usually conclusive (k). A copyhold tenement described as "meadow" on the court-roll may by usage be shown to include no more than the "first crop" (7), and so with similar instances.

tion.

Boundaries may also be proved by evidence of reputa- By reputation where the question relates to matters of general or public interest (m). "The term 'interest' here does not mean that which is interesting from gratifying curiosity, or a love of information or amusement, but that in which a class of the community have a pecuniary interest or some interest by which their legal rights or liabilities are affected. The admissibility of the declarations of deceased persons in such cases is sanctioned because these rights and liabilities are generally of ancient and obscure origin, and may be acted upon only at distant intervals of time; because direct proof of their existence therefore ought not to be required; because in local matters in which the community are interested, all persons living in the neighbourhood are likely to be conversant; because, common rights and liabilities being naturally talked of in public, what is dropped in conversation respecting them may be presumed to be true; because conflicting statements would lead to contradiction from others if the statements were false; and thus a trustworthy reputation may arise from the concurrence of many parties unconnected with each other, who are all interested in investigating the subject. But the relaxation has not been and ought not to be extended to questions relating to matters of mere private interest, for respecting these direct proof may be given, and no trustworthy reputation is likely to arise. We must remark,

(i) Ante, p. 237.

(k) Rex v. Hoyte, 6 T. R. 430.
(1) Stammers v. Dixon, 7 East,

(m) Reg. v. Bedfordshire (Inhabts. of), 4 E. & B. 535; Doe d. Molesworth v. Sleeman, 9 Q. B. 298.

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