And in a later case, where freehold land was held by heriot and relief among other services, the lord's right to seize was upheld under the following circumstances. The last heriot had been seised 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 seised a heriot on the death of the tenant. No service of any kind had been rendered since 1804, but it was held that the lord's right of action was not barred, and that there was no presumption that the services had been released (a). But the quit-rent was held to be barred.

There does not appear to be any ground for supposing that the statute was intended to bar the right to claim each particular heriot after a lapse of twenty years; if the Act applies in any instance, it must apply to the title to the casual service whenever it recurs, and not to the right of action in trover or detinue which the lord might have against a person who took away or detained the heriot, of which the property vests in the lord at the death of the tenant.

It seems to be the most correct view, that the statute applies only to heriots and similar services which are liable to distress, and which form part of some rent of which the title is barred by lapse of time, as if it had been expressly provided, that when any rent is barred under the Act the person claiming shall not be allowed to set up a title to any heriot which formed part of that rent. And further that heriot-custom

(a) Chichester v. Hall, 17 L T. 121.

and customary reliefs for which there is no right of distress are not within the Act: and that fealty is not within it, as being a service which was not within the old Statute of Limitation. If this view is correct, it follows that the provisions of the Act as to barring the right to sue for arrears of rent by the lapse of six years do not apply to heriot-custom or customary reliefs.

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." (a). An interruption would cause it to cease, and its revival, being within time of memory, will be void. "But this must be understood with regard to an interruption of right; for an interruption of possession only will not destroy the custom, but only makes it more difficult to prove; but if the right be anyhow discontinued even for a day, the custom is quite at an end” (b)· And no doubt 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 (c).

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

(b) Co. Litt. 114, b.

(c) Per Lord Erskine, Hillary v. Waller, 12 Ves. 264.

And as

When the benefits of tenure are so slight, as in the case of trifling quit-rents, that it is often inconvenient to assert them, no presumption will arise in the case of freehold tenants that the services have been released or the tenure changed (a). And this will apply to copyholds when the courts have been held unfrequently, and when the lord has had no great 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. If, however, the copyhold has for a long time been treated as freehold, an enfranchisement will be presumed if it be in any way possible (b).

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 twenty years, the heir's right to be admitted will be barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27, (subject to the provisions for extending the time in case of disabilities) (c). The

to the length to which presumptions will be carried in favour of long enjoyment or liberty from demands, see Roe v. Ireland, 11 East. 279; and Shepherd v. Payne, 12 C.B. N.S. 433 and 16 C.B.

N.S. 132.

(a) Chichester v. Hall, 17 L.T. 121.

(b) Roe v. Ireland, suprà.

(c) Walters v. Webb, 5 L.R. Chy. 531.

lord neglecting to enter for a forfeiture will be barred of his entry after twenty years (a).

And 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 (b). But this seems to be doubtful, if it is a correct view that the fealty, suit of court, heriot-custom, customary reliefs, and other payments which are not in the nature of rent, are not within the Statute of Limitation.

(a) Wilton v. Peacock, 3 M. and K. 325; and see Doc. v. Hellier, 3 T.R. 172.

(b) Dart. V. and P. 4th. ed. 372.

CHAPTER VII.

INCIDENTS OF COPYHOLDS.

(Continued.)

Incidents of tenure-Escheat-Only of legal estateOnly of beneficial interests- May be waivedClaim lost by lapse of time-Forfeitures-Causes of forfeiture-General rules-Relief when afforded. Who may claim-May be waived-Forfeiture for felony -Attainder abolished Construction of Acts-Waste-Relief in cases of permissive waste. Various acts of waste-In houses-In lands-In mines-As to trees-Injunctions against wasteBoundaries-Forfeiture for alteration—Remedies for confusion-Forfeiture for alienation-When incurred-Legal interest must pass—Forfeiture for neglect of service—Copyholder's right of estovers— Of taking wood-Minerals—Property in trees and mines-Lord's rights to take by custom-Copyholders owners in certain cases-Evidence of

custom.