CHAPTER X.

EVIDENCE.

Evidence in copyhold cases-Of copyhold tenure-How distinguished from freeholds-From other tenancies. Evidence of various freehold tenures-Free alms. Ancient demesne-Tenure in burgage-Gavelkind. Evidence of disgavelling-Of existence of a manor. Boundaries of manor-Of right to minerals-Evidence of reputation-Effect of old presentments. Maps and plans-Surveys-Evidence in support of franchises-That land is held of a manor-As copyhold—As freehold-Proof of custom—Customs of other manors-Entries on court-roll-Reputation-Proof of particular kinds of tenancy-Of right of renewal-Of certainty of fine-Of custom to entail Of disentailing assurances-Of copyhold assurances in general-Provisions as to stamps. Admittances-Licence to demise-Effect of entry on roll-Of drafts of entries-Court-rolls may be corrected-Proof of proceedings in manorial

courts.

of copy

hold

tenure.

Evidence In this chapter it is proposed to consider some of the rules of evidence relating to the matters discussed in the earlier chapters. As to what constitutes a copyhold tenure, it will be remembered that the proper criterion of a customary tenure is to ascertain whether its alienation is complete without any interference by the lord. The land is freehold if no such interference is necessary, even though there may be an obligation on the tenant to be admitted subsequently (a). If, (for a complete alienation) admittance, entry on a roll, or the like, be necessary, it will be copyhold, although conveyed by a lease and release or grant or other assurance proper to freeholds (b). In some cases it is difficult to distinguish copyholds of a certain kind from estates at will, or tenancies from year to year, as where the names of the tenants are entered in a book or roll, and the steward decides whether he shall admit the alienee or not. In some instances evidence as to the tenure will be afforded by decisions in parliamentary registration cases and similar proceedings, when the nature of the tenancy has come into dispute (c).

Free

Alms.

It is sometimes necessary to ascertain whether

(a) Passingham v. Pitty, 17 C.B. 299. But if the copyhold has been severed from the manor, it will pass by an ordinary assurance. Phillips v. Ball 6 C.B.N.S. 811.

(b) Doe v. Huntingdon, 4 East. 271. Thompson v. Harding, 1 C.B. 440. Other cases are cited in Ch. I. suprà. Bingham v. Woodgate, 1 Russ. & M. 32, is against the other authorities; see Portland (Duke) v. Hill, 2 L.R. Eq. 768.

(c) Garbutt v. Trevor, 15 C.B. N.S. 550.

lands are or have been held by a freehold tenure other than common socage. It will be of use to notice that the tenure of Francalmoigne or Free Alms was free from all temporal service, and is inconsistent with the rendering of fealty or rent (a).

A tenure in ancient demesne is proved by the mention of the manor, of which the lands are held, in Domesday Book, under the title of Terra Regis. This will be shown by an office copy of the entry (b). The conver- Ancient

sion 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 happened, 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 that by no fault of the owner the land became nearly valueless (c). The difficulty was removed by

(a) Co. Litt. 94 b. 95 a. Since the Reformation the uncertain spiritual services have in some cases been changed to fixed religious and charitable services by authority of Parliament, "but the tenure remains as it was before." Co. Litt. 95 b.

Griffin v. Palmer, 1 Brownl.

(b) See Yearbook 40 Edw. 3. 45. 43. Newton v. Shaftoe, 2 Keb. 158. Hodges v. Hodges, 1 Lev. 106. Baker v. Wich, 1 Salk. 56. Saunders v. Welsh, ibid. 57. Crowther v. Oldfield, ibid. 364. The old method of consulting Domesday Book is described in a note to Hale's Common Law,

c. 5.

(c) 1 Real Prop. Rep. 28, 29. The writ of deceit was abolished by 2 & 3 Will. 4, c. 27, s. 36; and 3 & 4 Will. 4, c. 74, S. 6.

demesne.

the Fines and Recoveries Act (a) which in this case has 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 preceeding the year 1834 (b). 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 (c). 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 (d), but the words of the Statute

(a) 3 & 4 Will. 4 c. 74, ss. 4, (b) Ibid. s. 6.

5.

(c) Coventry. Convey. Evid. 170. Green v. Proude, 1 Mod. 117. Bullen v. Michel, 2 Price. 399. "The surveys of the Church and Crown lands were taken by Commissioners in the time of the Commonwealth under the authority of Acts or Ordinances of the Parliament, and copies of these surveys were deposited in many of the Cathedrals (and others in the Lambeth Library). The originals would have been good evidence of the particulars of the surveyed estates; but as they were destroyed at the time of the great fire of London, the copies have been admitted as evidence in the place of the original surveys, provided they have been kept in unsuspected repositories." Phillips. Evid. i. 405. See also Freeman v. Reed, 4 B. & S. 174. 10 Jur. N.S. 149. As to admitting surveys of the possessions of religious houses when the original commissions can no longer be found, see Phill. Evid. ubi suprà. and Underhill v. Durham, 2 Gwill. 542; with other cases there cited.

(d) Per Shadwell V.C. in Harris v. Davison, 15 Sim. 128. Richards v. Bassett, 10 B. & C. 657. Irwin v. Simpson, 7 Bro. P.C. 317. Evans v. Rees, 10 A. & E. 151.

appear to be wide enough to cover every tenure. As Burgage. to tenure in burgage, which it may be necessary to prove in cases concerned with a descent in boroughenglish, customary dower, or other customary incidents it should be remembered that the customs of this tenure cannot be set up outside an ancient borough (a), even if the tenure is stated in letters-patent or elsewhere to be 'in free burgage' (b).

led lands.

As to gavelkind lands, the presumption is that all Gavelkind lands in Kent are of that local tenure until the contrary is proved. It may however be shown to have. been disgavelled (c), or never to have been of the nature of gavelkind. The Acts for disgavelling lands Disgavelin 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. To prove that a particular estate was within one of these Acts it is necessary to shew that the land was in the particular ownership at the date of the Act (d). This is done by proving the Act, and any record, such as inquisitions post mortem and the like, which bear upon the circumstances of the particular case (e); such, for

(a) Co. Litt. 110, b.

Hammond v. Broadstreet, 10 Exch. 390 (b) May v. Street, Cro. Elis. 120. Rex v. Milton, 1 C. & K. 58. (c) As to the Disgavelling Acts, see ante, p. 10, note

(d) Robins. Gav. i. c. 7. 1 Real Prop. Rep. Append. 113, 153, 205, 213, 228, 286, 350. Various cases bearing on this part of the subject are collected in the Tenures of Kent, c. 16.

(e) Burridge v. Sussex, 2 Ld. Raym. 1292. Lee's case, Palm. 163. Wiseman v. Cotton, 1 Sid. 135. Brown v. Brooks, ibid. 137. Doe v. Brydges, 6 M. & Gr. 282; see also Taylor. Evid.