the declarations of the members of a family, and, perhaps, of others living in habits of intimacy with them (46), are received in evidence as to pedigrees; but evidence of what a mere stranger has said has ever been rejected in such

cases.

The husband has been considered as a member of the wife's family within this exception; and, consequently, evidence of his declarations as to the illegitimacy of his wife is admissible.

In the case of the Banbury claim of peerage, D. P. 23d February, 1809, the counsel for the petitioner stated that he would offer in evidence certain depositions taken upon a bill (seeking relief), filed in the Court of Chancery on the 9th of February, 1640, by Edward, the eldest son of the first Earl of Banbury, an infant, by his next friend. This evidence having been objected to, and the point argued, the following questions were proposed to the judges:

Upon the trial of an ejectment brought by E. F. against G. H., to recover the possession of an estate, E. F., to prove that C. D., from whom E. F. was descended, was the legiti mate son of A. B., offered in evidence a bill in chancery, purporting to have been filed by C. D. 150 years before that time by his next friend, such next friend therein stiling himself the uncle of the infant for the purpose of perpetuating testimony of the fact that C. D. was the legitimate son of A. B., and which bill stated him to be such legitimate son (but no persons claiming to be heirs at law of A. B., if C. D. was illegitimate, were parties to the suit, the only defendant being a person alleged to have held lands under a lease from A. B., reserving rent to A. B. and his heirs): and also offered in evidence depositions taken in the said cause; some of them purporting to be made by persons stiling themselves relations of A. B.; others stiling themselves servants in his family; others stiling themselves to be medical persons attendant upon the family: and in their respective depositions stating facts, and declaring that C. D. was the legitimate son of A. B., and that he was in the family, of which they were a Per Lord Kenyon C. J. in R. v. Eris- b Vowles v. Young, 13 Ves. 140. Ld. well, 3 T. R. 723. Erskine C.

(46) In ejectment between the Duke of Athol and Ld. Ashburnham, E. 14 Geo. 2. Mr. Sharpe, who was attorney in the cause, was admitted to prove what Mr. Worthington (who happened to die before the trial) had told him he knew and had heard in regard to the pedigree of the family. Gilb. L. Ev. 112.

respectively relations, servants, and medical attendants, reputed so to be.

1st question. Are the bill in equity, and the depositions respectively, or any, and which of them, to be received in the courts below, upon the trial of such ejectment (G. H. not claiming or deriving, in any manner, under either the plaintiff or defendant in the said chancery suit), either as evidence of facts therein [alleged, denied, or] deposed to, or as declarations respecting pedigree; and are they, or any, and which of them, evidence to be received in the said cause, that the parties filing the bill, and making the depositions, respectively sustained the characters of uncle, relations, servants, and medical persons, which they describe themselves therein sustaining.

Answer (47). Neither the bill in equity, nor the depositions, are to be received in evidence in the courts below, on the trial of the ejectment, either as evidence of the facts therein [alleged, denied, or] deposed to, or as declarations. respecting pedigree; neither are any of them evidence that the parties filing the bill, or making the depositions respectively sustained the characters of uncle, relations, servants, and medical persons, which they describe themselves therein sustaining. The judges further added, that it would not make any difference in their opinion, if the bill, stated to have been filed by C. D., by his next friend, had been a bill seeking relief.

2nd question. Whether any bill in chancery can ever be received as evidence in a court of law, to prove any facts either alleged or denied in such bill?

Answer. Generally speaking, a bill in chancery cannot be received as evidence, in a court of law, to prove any fact either alleged or denied in such bill. But whether any possible case might be put which would form an exception to such general rule, the judges could not undertake to say.

3rd question. Whether depositions, taken in the Court of Chancery, in consequence of a bill to perpetuate the testimony of witnesses, or otherwise, would be received in evidence to prove the facts sworn to, in the same way and to the same extent as if the same were sworn to at the trial of an ejectment by witnesses then produced?

Answer. Such depositions would not be received in

(47) The C. J. of C. B. delivered the opinion of the judges on the 30th May, 1809.

evidence, in a court of law, in any cause in which the parties were not the same as in the cause in the Court of Chancery, or did not claim under some or one of such parties.

If the question be, whether a certain manor be ancient demesne or not, the trial shall be by Domesday Book, which will be inspected by the courts.

In ejectment for the manor of Artam', the defendant pleaded ancient demesne, and when Domesday Book was brought into court, would have proved, that it was anciently called Nettam, and that Nettam appears by the book to be ancient demesne; but he was not permitted to give such evidence; for if the name be varied, it ought to have been averred on the record.

An ancient writing found among the court rolls of a manor, stated to be ex assensu omnium tenentium, and proved to have been delivered down from steward to steward, is admissible evidence, although not signed by any person, to prove the course of descent within the manor.-_ And the same rule holds, with respect to an entry in the court rolls of a presentment made by the homage of the customary mode of descent within the manor, although no instances be proved of any person having taken according to the mode of descent pointed out in the presentment.

Custom is of the very essence of a copyhold; and if the custom be silent, the common law must regulate the course of descent.-Customs are to be taken strictly and cannot be extended by implication.-Hence where the custom is, that the eldest sister shall inherit, yet by that custom the eldest aunt or the eldest niece shall not inherit the land. So if the custom be that the youngest son shall inherit, and a man has issue two sons and dies, and the land descends to the younger son, who dies without issue, the eldest son of the eldest brother shall have the land; because the custom does not hold in the transversal line, but only in the lineal descenth.

Evidence of reputation of the custom of a manor1, that, in default of sous, the eldest daughter, and, in default also of daughters, the eldest sister, and in case of the death of all, the descendants of the eldest daughter or sister respectively of the person last seised should take, is proper to be

e Hob. 188.

d Gregory v. Withers, H. 23 Car. 2. Gilb. Ev. 44. 3 Keb. 588. S, C.

e Denn d. Goodwin v. Spray, 1 T. R. 466,

i

f Roe d. Beebee v. Parker, 5 T. R. 26.

g Ratcliff v. Chapman, 4 Leon. 242.

h 1 Rol Abr 624. pl. 2.

Doe d. Foster and another v. Șisson, 12 East, 62.

left to the jury of the existence of such a custom, as applied to a great nephew (the grandson of an eldest sister) of the person last seised; although the instances in which it was proved to have been put in use extended no farther than those of eldest daughter and eldest sister, and the son of an eldest sister. The existence of such extended custom in adjacent manors seems to be no evidence of the custom in the particular manor.

The premises were laid in the declaration to be in the parish of Farnham, and at the trial were proved to be in the parish of Farnham Royal; but it was not shewn by the defendant that there were two Farnhams. The variance was holden to be immaterial.

Evidence on the part of the Defendant.-If the defendant prove a title out of the lessor of the plaintiff, it is sufficient, though he have not any title himself; but he ought to prove a subsisting title out of the lessor, for producing an ancient lease for 1000 years will not be sufficient, unless he likewise prove possession, under such lease, within twenty years'. So if the defendant produce a mortgage deed, where the interest has not been paid, and the mortgagee never entered, it will not be sufficient to defeat the lessor, who claims under the mortgagor; because it will be presumed, that the money was paid at the day, and, consequently, that it is not a subsisting title; but if the defendant prove interest paid upon such mortgage after the time of redemption, and within twenty years, it will be sufficient to nonsuit the plaintiff.

The defendant produced a mortgage for years", by deed, from the plaintiff's ancestor, upon which was an endorsement in hæc verba, "Received of M. O. 5007. on the "within recited mortgage, and all interest due to this day; "and I do hereby release to the said M. O., and discharge "the mortgaged premises from the said term of 500 years." On a case reserved, the court held, 1st, that these words amounted to a surrender of the term; 2d, that such surrender might be by note in writing, without deed, by the statute of frauds (29 Car. 2. c. 3. s. 3.); Sd, that a note in writing was not required to be stamped (48).

k Doe d. Tollet v. Salter, 13 East, 9. 1. Bull. N. P. 110.

m Wilson v. Witherby, per Holt, C. J. Bull. N. P. 110.

n Farmer d. Earle v. Rogers and another, T. 1755. C. B. Bull. N. P. 110. 2 Wils. 26. S. C.

(48) So in Hodges v. Drakeford, 1 Bos. & Pul. N. R. 270. it was holden, that an assignment in writing, not under seat, endorsed

XII. Verdict-Judgment—Execution.

Verdict.-IN an ejectio firma of a messuage, if it be found that a small part of the house is built, by encroachment, upon the land of the plaintiff, and not the residue, yet plaintiff shall recover for that parcel by the name of a messuage.

Upon trial at bar in an ejectio firmæ, by a jury from Kent, the declaration was of a fourth part of a fifth part; and the title of the plaintiff was only to one-third of one-fourth of one-fifth, being only one-third of what was declared for. And it was said, that plaintiff could not have a verdict, because the verdict ought to agree with the declaration. But per cur. The verdict may be taken according to the title.

In ejectment, declaration was for a moiety of land of gavelkind tenure, in Kent; and the question was, whether the lessor of the plaintiff could recover a third part of the land described, having claimed a moiety in the declaration? Lord Mansfield C. J. "The lessor of the plaintiff shall recover according to his title, and it is not any objection to his recovering what he has really a title to, that he has demanded more." If an ejectment is brought for forty acres, plaintiff may recover twenty acres. Denison J. "In ejectment, plaintiff generally declares for more than he hopes to recover. If he claims a messuage in the declaration, he may recover a moiety."

66

Judgment. The form of the judgment, after verdict for the plaintiff in ejectment on a single demise, is, "that the plaintiff do recover his term aforesaid, yet to come and "unexpired, of and in the said tenements, with the appur"tenances above-mentioned, whereof it has been found by "the jurors aforesaid, that the defendant is guilty of the "trespass and ejectment aforesaid, and his damages afore"said, by the jurors aforesaid, in form aforesaid assessed;

o 2 Roll. Abr. 704.

p Ablett d. Glenham v. Skinner, 1 Sidf.

229.

q Denn d. Burgess v. Purvis, 1 Burr. 326. and MSS. Sce Comb. 101.

r See Guy v. Rand, Cro. Eliz. 13. and Meredith v. Rand, 43 Eliz. Dyer, 115. b. pl. 67. in marg. S. P.

on a lease, did not require a stamp duty before the stat. 44 Geo. 3. c. 98. But now, by that statute, a deed or other instrument of assignment is made subject to a stamp duty. The like provision has been made by the last stamp act, 48 Geo. 3. c. 149. See Schedule, part I. tit. Mortgage.