dence of payment could not reasonably be expected; but it was said by the Court that to give any weight to these licences it must be shown that in later times payments had been made under licences of a similar kind, or that the lords of the manor had exercised other acts of ownership over the fishery which had been acquiesced in (0).

leases.

tions.

Again, ancient leases have been held as properly receiv- Ancient able as evidence of reputation in a question of parish boundary (p). Perambulations are also evidence of the Perambulaextent or boundaries of a particular manor (2), and if entered on the court-rolls will be receivable as evidence; but an entry on the court-rolls that the perambulation had taken a particular line would not be admissible (r).

Maps are admissible as evidence of reputation, if coming Maps. from a proper custody, and therefore tending to show that they are likely to be authentic (s), and if appearing to have been made by or from the relation of persons with a proper knowledge of the locality and to have been generally accepted by such persons as accurate (t). But a private map is not usually receivable in evidence either for or against the parties making it; but in certain circumstances it may be received as a declaration against interest (u). A tithe-commutation map is not admissible in evidence on questions of ownership as showing the boundary of land in cases of disputed title (a); and it has been held that the ordnance map and maps found in the British Museum cannot be received in evidence to prove that a certain piece of waste land is within a certain parish and forms part and parcel of a common (y).

(0) Rogers v. Allan, 1 Campb. 309, 311.

(p) Plaxton v. Dare, 10 B. & C. 17.

(q) Phill. Evid. i. 249.

(r) Weeks v. Sparke, 1 M. & S. 679; Taylor v. Devey, 7 A. & E. 409. (8) Hammond v. Bradstreet, 10 Exch. 390.

(t) Rex v. Milton (Inhabts. of), 1 C. & K. 58.

(u) See Doe d. Hughes v. Lakin, 7 C. & P. 481.

(x) Wilberforce v. Hearfield, 5 Ch. Div. 709.

(y) Bidder v. Bridges, W. N. (1885) 183; S. C., W. N. (1886) 148 (C. A.).

Manorial franchises.

As to manorial franchises it should be remembered that they may be extinguished by forfeiture for a misuser, or even by disuse. Thus after a long interval it would appear that the franchise of holding a court-leet becomes extinct (s), though it is otherwise as to a court-baron, which is a necessary incident of a manor (a). To establish a right to free-warren or any similar franchise, it seems it is necessary to prove that of the right has been enjoyed down to the time of making the claim, as "the non-user creates a presumption that the franchise has been surrendered" (b), though formerly the doctrine was that franchises which were for the profit or pleasure of the grantee were not lost or forfeited by non-user, but that in the case of liberties wherein the public have an interest for their common profit, non-user was a cause of forfeiture (c). Reputation also is admissible evidence of a claim of free-warren by prescription over an entire manor. Thus in an action by the lord of a manor against a copyholder for trespassing on his free-warren, a private Act which was passed for the inclosure of common lands within the manor, and contained a recital relating to the interests of the copyholders, but expressly saved the rights of the lord to free-warren in as ample a manner as he had theretofore enjoyed it, taken with declarations of deceased copyholders as to the existence of the franchise over all the copyholds, was admitted in evidence to prove the right; and in the same action a judgment on a quo warranto information brought against a former owner of the manor by the Attorney-General, in which the former owner pleaded, and the Attorney-General confessed, a prescriptive title to the free-warren as appurtenant to the manor, was received as evidence in support of the right, as being the judgment of a competent Court upon

(z) See Darrell v. Bridge, 1 W. Bl. 46.

(a) Rex v. Havering-atte-Bower Manor (Steward of), 5 B. & Ald.

(b) Cru. Dig. tit. 27, s. 97. (c) Case of Leicester Forest, Cro. Jac. 155; cf. Bro. Abr. tit. Franchise, pl. 10, 22.

a matter of a public nature concerning the Crown and its subjects (d).

Upon the question whether a particular tenement con- Proof of tinues to be held of a manor, notwithstanding a great tenancy. lapse of time without render of services, it may be observed that the tenure will be presumed to continue, in the case of freeholds as well as copyholds, unless something is proved from which a release can be presumed. In the case of Chichester (Earl of) v. Hall (e) it appeared that the land was freehold held of the lord of a manor under render of a heriot, relief, quit-rent, &c., but that no service of any kind had been rendered to the lord for forty-five years, although there had been occasions when the services were due and might have been demanded; and it was held that the lapse of time was no ground for presuming that the tenure of the lands had been changed. Again, in a case where it was shown that copyhold property had upwards of a century previously been conveyed for the purpose of a workhouse, and that the lord had not since the date of the conveyance received a small acknowledgment for which he had then commuted the fines and other services due from the property, it was held that in the absence of evidence adverse to the right of the lord the Court would not presume an enfranchisement of the land from mere negligence on the lord's part in exacting the acknowledgment (f). But upon proper evidence the enfranchisement of a copyhold may be presumed, even against the Crown. Thus, where certain lands were admitted to have been originally copyhold and to have been subject to an ancient rent of 6s. 6d., but had been surrendered in 1636 to churchwardens and their successors without mention of any rent, and it was shown that the churchwardens were charged in a Parliamentary survey made in 1649 with the

Evidence of custom.

payment of a sum of 6d. under the head of "freehold rents," and that receipts had from time to time been given by the steward as for a freehold rent, these facts were held to be evidence on which the jury might presume an enfranchisement as against the Crown (g). It has also been said that where a person would have any advantage from making a claim, his long non-claim may be evidence of a release (h). In the case of Lydiard and Jackson's and Broadley's Contract (i) it appeared that land anciently copyhold had been for upwards of 100 years treated as freehold, without any claim being made on the part of the lord of the manor, and that the only intimation that the land was copyhold consisted of recitals contained in deeds of recent date, together with a covenant to surrender, to which the lord was neither party nor privy: and it was held, as between the vendor and the purchaser of the land, that under the circumstances an enfranchisement must be presumed.

There is no rule as to the extent of evidence which is required to establish a custom, or from which the presumption or inference of the fact of a custom may be rightly drawn (). Although one act, even if undisturbed, does not make a custom, it has been said that it will be evidence of the custom (7). One entry on the roll will be sufficient to prove a custom under some circumstances, as in questions as to the custom of descent, dower, or the like (m), and an entry of the custom of descent in a manor has been admitted as evidence, though no instance was given of the actual descent (n). Old leases also have been held to be

(g) Roe d. Johnson v. Ireland, 11 East, 280.

(h) Hillary v. Waller, 12 Ves. jun. 239, 265.

(i) 42 Ch. Div. 254.

(k) Per Lord Westbury, L. C., in Hanmer v. Chance, 4 De G. J. &

S. 626, 635.

(1) Roe d. Bennett v. Jeffery, 2 M. & S. 92.

(m) Doe d. Mason v. Mason, 3 Wils. 63.

(n) Roe d. Beebee v. Parker, 5 T. R. 26.

evidence of a custom to approve (o), and this would seem to be so, even if no enjoyment under them were proved (p).

A regular series of entries in a court-roll, or a statement of customs signed by the homage or the former tenants, and found in the proper custody, is the best evidence of a custom. In one case an ancient writing handed down with the court-rolls from steward to steward, and purporting to be the customary of the manor was received as evidence of a custom mentioned therein (g); and in another case, in order to prove a custom that the lord was entitled to take only one heriot from a tenant, no matter what the number of the tenements were, a paper purporting to be a copy of an old decree of the Court of Chancery in a suit between a copyholder and the lord, which was produced by a witness who had been lord of the manor and had found the document among the papers of a previous lord, was admitted as evidence of the custom on proof of search having been made for the original (†).

In the absence of better evidence, and if there is nothing to show that the custom did not exist at any given period within legal memory, evidence of reputation is admitted to prove the existence of a custom, as "tradition and the received opinion are evidence of the lex loci" (s). But though the general opinion may be evidence of the general right, the tradition of a particular fact said to have been done in the exercise of the right is not evidence (†). In the case, however, of a customary right which admits of acts of enjoyment, a foundation ought if possible to be laid, showing its exercise within living memory: "it is

(0) Lascelles v. Onslow (Lord), 2 Q. B. Div. 433.

(p) Clarkson v. Woodhouse, 3 Dougl. 189.

(9) Denn d. Goodwin v. Spray, 1 T. R. 466.

(r) Price v. Woodhouse, 3 Exch. 616.

(s) Per Lord Kenyon, C. J., in Roe d. Beebee v. Parker, 5 T. R. 26, 31; Doe d. Forster v. Sisson, 12 East, 62; Freeman v. Phillipps, 4 M. & S. 486.

(t) Phill. Evid. i. 250; Taylor, Evidence, 8th ed., 543.