and to produce all books and court rolls relating to the title of the defendant at the trial; and on cause shown for the defendant, the court made the rule absolute for inspecting all books and rolls relating to the defendant's title, and producing them at the trial (t).

Formerly, if such a rule were moved in the Court of King's Bench, it was absolute in the first instance, and in the Common Pleas it was a rule nisi (u); but now by the rules for establishing a uniformity of practice in the Courts of B. R., C. B. and Exch. of Pleas, it is absolute in the first instance in all the courts, upon an affidavit that the copyhold tenant has applied for and been refused inspection (x). It was always the practice to require an affidavit to show that the applicant was tenant of the manor, and had been denied an inspection and copies of the court rolls by the lord or his steward (y).

All matters of record are said to prove themselves, and to admit of no averment against the truth of them; but as the court rolls of a manor, in strictness, are not records (z), the courts will admit an averment of any error in them (a).

In the case of Doe d. Bennington v. Hall (b), one objection to the plaintiff's recovering in the ejectment was, that no stamped copy of court roll was given in evidence, to prove the surrender and admittance, and that production of the original books containing the entries of them was not sufficient since the stamp act of 48 Geo. III. c. 149; for that if the evidence of the original entry on the court roll could be received, the stamp would be always evaded. But Lord Ellenborough, C. J., in delivering the opinion of the court, held, that the statute not having required a stamp upon the original court roll itself, but only on the copy, it could not be deemed an evasion, and that it is not necessary for the tenant to produce his copy, if he chooses to risk the evidence of his title in not taking a copy. And his lordship added, "how can a copy be evidence, unless the original be evidence?"

In practice it is more usual to rely upon the evidence of the court rolls than of copies (c); but it was long since held that a copy of a

(t) Folkard v. Hemet, C. B. 16 Geo. 3, 2 Sir W. Bl. 1061. And see Cox v. Copping, ubi sup. Inf. Chap. XVI.

(u) Tidd, 492, 648, 8th ed.

(x) Rule 31, Hil. T. 1853.

(y) Barn. 236; Wils. 399; Tidd, 648. But see per Heath, J., 4 Taunt. 163. But in a modern case the court granted a rule absolute in the first instance for the usual limited inspection of the court rolls, to enable the devisee of a rent charge out of copyholds to complete his title; Ex parte Barnes, 2 Dowl. (N. S.) 20.

(z) Ante, p. 348.

(a) Ante, p. 137.

(b) 16 East, 208. And see Fawkner v. Billingham, Hetl. 46.

(c) Adams on Ejectm. 265; Doe d. Garrod v. Olly, 4 Per. & Dav. 275; S. C. 12 Adol. & Ell. 481; ante, p. 339, n. (k).

It has been decided that a court roll is secondary evidence of a power of attorney to surrender copyholds, if the power cannot be found; Doe v. Caperton, 9 Car. & Pa. (N. P.) 115.

court roll under the steward's hand was good evidence of the copyholder's estate (d); and that an examined copy of the court roll is also evidence, if sworn to be a true one (e).

Not only the original court rolls, but also examined stamped copies of them are evidence of a surrender taken out of court, and of the admittance under it (f).

In the case of The Dean and Chapter of Ely v. Stewart (g) Lord Hardwicke ruled, that where the admittance of a copyhold was of thirty years' standing, a copy of such admittance might be read in evidence, and that it was not necessary that it should be signed by the steward of the court.

And in Wynne v. Tyrwhitt (h), which was an action by the lord for trespasses on the waste, it was contended that entries in the steward's books, though above thirty years old, could not be received in evidence without proof of his handwriting, and the fact that he was dead; but Richardson, J., overruled the objection; and a rule nisi obtained for a new trial was discharged, the court holding that the rule was not confined to deeds or wills, but extended to letters, and other written documents coming from the proper custody, and observing that it was founded on the antiquity of the instrument, and the great difficulty, nay, impossibility of proving the handwriting of the party after such a lapse of time.

Yet in the report in Fortescue (i) of the Duke of Somerset & France, there is a note, that an admission under the hand of the steward, though above forty years old, was rejected in evidence, because they could not prove the steward's hand.

And as the steward of a customary court does not stand in the situation of a public officer (j), it would certainly appear to be essential that his handwriting should be proved, to establish the authenticity of any copy of court roll, unless under circumstances similar to those in Wynne & Tyrwhitt.

A custumary of a manor of antiquity, and handed down from

(d) Snow v. Cutler & Stanley, 1 Keb. 567; Lee v. Boothby, ib. 720. [N.B. In this case the steward was counsel for the lord as plaintiff; Scroggs, 97.] And see 12 Vin. Abr. 101, pl. 35; Chance v. Dod, 2 Barnard. B. R. 406; Street v. Roper, ib.; 12 Vin. 214, 215; Rowe v. Brenton, 3 Mann. & Ry. 296; Breeze v. Hawker, 14 Sim. 350.

In Pilkington v. Bagshaw, Sty. 450, Rolle, C. J., said, "If copies of court rolls be showed to prove a customary estate, the enjoyment of such estate must also be proved, otherwise the proof is not good."

(e) 2 Bac. Abr. 632, cites Comb. 337; 12 Mod. 24. And see Doe & Cook, 5 Esp. Rep. 221; Mann. Dig. 94; 3 Man. & Ry. 297, in Rowe t. Brenton.

(f) Doe d. Cawthorn v. Mee, 4 Barn.
& Adol. 617; S. C. (Hawthorn v. Mee),
1 Nev. & Mann. 424. And see Doe v.
Olly, 4 Per. & Dav. 275; Carpenter v. Bul-
ler, 2 Mood. & R. 298.
(g) 2 Atk. 45.

(h) 4 Barn. & Ald. 376.
(i) P. 43.

(j) See 2 Bac. Abr. 611.

steward to steward, although not signed by any one, has been received as good evidence to prove the course of descent (k).

If the lord claim an ancient and accustomed payment from his tenants on certain events, the books of the steward or bailiff of the manor, whereby he charges himself with monies received, may be produced: unless, however, it appears that such a sum of money has been from time to time paid by the tenants, the mere entry by the steward is very weak evidence (1).

But in a modern case (m), a book received by the steward from his predecessor, in which were entered the fines assessed, whether paid or not paid, and which was accessible to all the copyholders, was held by the Court of Common Pleas to have been properly rejected as evidence, C. J. Tindal observing, "How are we to say whether the fines were ever paid or not? The evidence is purely conjectural. Nor can it be said that the book contains evidence of the steward's having charged himself; for it appears he made up a second book at the end of each year, in which he put down the fines which had been actually paid."

The case of Folkard v. Hemet (n) shows that the steward's minutes of the proceedings at the customary Court Baron are open to the inspection of the tenants of the manor, as well as the court books in which those proceedings are afterwards formally recorded; and as any error in the court rolls may be corrected (o), it follows that not only such minutes, but also the drafts of the rolls, should be carefully preserved, and handed down from steward to steward.

In a dispute between the lord and a devisee of a copyholder, Holt, C. J., held at N. P., that the recital of a will in the copy of admission was good evidence of the devise against the lord or any stranger; but that if the dispute had been between the heir and the devisee, the will itself ought to have been produced; and he ruled, that the rough draft of the steward of the manor of the admittance was admissible evidence (p).

(k) Denn d. Goodwin & Wragg et ux. v. Spray, 1 T. R. 466; Roe v. Parker, 5 T. R. 30.

(1) See 12 Vin. 105, pl. 3. Practice alone is admitted as sufficient evidence to a jury of the existence of a custom; Doe & Mellersh, 5 Adol. & Ell. 541; 1 Nev. & Per. 30; ante, pp. 24, 103. See the case of Doe d. Lord Ashburnham v. Michael, 15 Jur. 677, where the entries in a book of yearly accounts between the lord of a manor and his steward were held receivable in evidence on the same footing as entries by the

steward for the time being.

(m) Dean and Chapter of Ely v. Caldecot, 7 Bing. 433. And see Doe v. Beviss,

7 Man., Gr. & Sc. 456.

(n) 2 Sir W. Bl. 1062; ante, p. 350. (0) See Kite & Queinton, Brend v. Brend, Burgess v. Foster, and other authorities, ante, p. 137 et seq.

(p) 1 Ld. Raym. 735; 12 Vin. Abr. 214, respecting evidence in support of customs as between lord and tenant, see Price v. Woodhouse, Wels. H. & G. 617; 18 L. J. Exch. (N. S.) 271.

In the case of Doe d. Priestley and Wife v. Calloway (q), the Court of B. R. decided that the draft of an entry produced from the muniments of the manor, and the parol testimony of the foreman of the homage who made the presentment, were properly admitted at the trial by the learned judge (Mr. J. Holroyd) as evidence of such surrender and presentment, although no entry thereof appeared on the court rolls. Lord Tenterden in that case took notice of the above authority of C. J. Holt, and observed, "It does not appear whether, in that case, a fair roll had been engrossed and lost; but I cannot think that material. The draft may have been not a copy, but the original from which the roll was afterwards to be made out. The draft itself is more in the nature of an original than the copy, though the latter is more convenient for reference, and therefore is the document which is generally resorted to."

And in Rex v. The Inhabitants of Thruscross (r), where the record book of the manor of an admittance to a copyhold recited a surrender to the uses of the will, but the surrender could not be found, the originals being kept loose and irregularly, nor was the surrender recorded on the rolls, the book was held to be admissible evidence of such surrender.

In an action of ejectment by a devisee of copyhold property, the claimant must formerly have proved not only his own admittance, and the will itself under which he claimed (s), but the admittance of the testator (t); and likewise his surrender to will, (if the will had been made prior to the now repealed act of 55 Geo. III. c. 192) (u), and his death, and the determination of any prior estates (x).

And proof of the admission of a person of the name of the lessor of the plaintiff in ejectment, by production of the court rolls, is not alone sufficient, but evidence of the lessor's identity is requisite (y).

As the admittance of a tenant for life is the admittance of all in

(9) 6 Barn. & Cress. 484; S. C. 9 Dow. & Ry. 518.

(r) 1 Adol. & Ell. 126; 3 Nev. & Mann. 284; ante, p. 57, n. (k). The judgment of a manor court has been held to be sufficiently proved by the short minutes of the steward in the court book; Dawson v. Gregory, 7 Ad. & El. (N. S.) 756.

(s) Jenkins". Barker, 2 Bac. Abr. 632; Roe & Hicks, 2 Wils. 15, 16; Roscoe, 276; 2 Starkie, 417. The probate was not evidence of a devise of real property; Bull. N. P. 246; 2 Camp. 389; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 570; S.

1 Phill. on Evid. 264; Rosc. 57. Now see
sect. 64 of 20 & 21 Vict. c. 77, to amend
the law relating to probates and letters of
administration in England.

(t) Wilson v. Weddell, Yel. 145.
(u) Roscoe, 276.

(x) Roscoe, 274. The reader will bear in mind that an unadmitted devisee may now devise, and that the 55 Geo. 3, c. 192, is now repealed.

(y) Doe d. Hanson and others v. Smith and another, 1 Campb. 196; 2 Stark. 416; 2 Phill. 200.

A A

remainder (z), a person claiming under a remainder-man only need prove the admittance of the tenant for life (a).

Where the title does not come in question, it is not necessary to give evidence of the admittance or grant, and consequently not in replevin (b).

In ejectment by the customary heir, the seisin of the ancestor must be proved by showing actual possession, or that he received rent from the person in possession (c), or by showing the possession of his lessee for years (d).

Proof of possession and pernancy of the rents is primâ facie evidence of a seisin in fee (e), but it may be rebutted by stronger circumstantial evidence: so the proof of above forty years' subsequent possession by a daughter, whilst a son and heir lived near, was deemed sufficient presumptive evidence that the first possessor had only a particular estate (ƒ).

And in ejectment by the heir, the descent to the plaintiff is to be proved by a pedigree, authenticated by examined copies of the parish registers, or production of the registers themselves (g).

The possession of a guardian in socage is evidence of the seisin of the infant (h).

And the declarations of a deceased occupier of whom he held the land, is evidence of the seisin of that person (i).

Evidence of the customs in one manor is not allowed to prove a custom in another manor (k), except where there is a probable ground for similitude, as in the case of the border law, governing one entire district (4), or in the three northern counties, Cumberland, Westmoreland, and Northumberland, in the tenant right estates; and there the custom of neighbouring manors has been deemed admissible evidence (m).

And in the Dean and Chapter of Ely v. Warren (n) Lord Hard

(x) Ante, p. 202.

(a) 2 Phill. 201; Roscoe,276; 2 Stark. 417. (b) Adams v. Cross, 2 Vent. 181.

(c) Co. Lit. 15 a; Bull. N. P. 103; Rosc. 272.

(d) Co. Lit. 243 a.

(e) Rosc. 11, 272.

(f) Jayne v. Price, 5 Taunt. 326.

(g) Bull. N. P. 247; 1 Phill. 325, 328; Rosc. 50; Bridger v. Huett, 2 Fost. & Finl. 35.

(h) Goodtitle & Newman, 3 Wils. 518. As to possessio fratris, see ante, p. 38.

(i) Peaceable v. Watson, 4 Taunt. 16. (k) Duke of Somerset v. France et al., 1 Stra. 654; S. C. Fortesc. 41. And see Dean and Chapter of Ely v. Warren, post;

Cowp. 807; Roe v. Parker, 5 T. R. 30; Marquis of Anglesey v. Lord Hatherton, 10 Mees. & Wels. 218.

(1) Ruding v. Newell, 2 Stra. 957; Stanley v. White, 14 East, 338, 341; 4 Madd. 224, in White v. Lisle.

(m) Roe v. Parker, sup. ; Champian & Atkinson, 3 Keb. 90. And see per Lord Ellenborough in The King v. Ellis, 1 Mau. & Selw. 662, citing the Lord Barclay's case from Hale de Jur. Mar. 35; Rowe v. Brenton, 8 Barn. & Cress. 758; S. C. 3 Mann. & Ry. 144, 229; ante, p. 304. In the above case of Champian & Atkinson, it was held that the steward, though he had a fee for the admission, might be a witness. (n) 2 Atk. 189.