any tenant having so in fact taken under the custom. (a) The court rolls are kept in the custody of the lord or his steward, as well for the use of the lord as the common evidences of the manorial rights, to which evidence all the tenants of the manor, whether copyhold or freehold, have an undoubted right of access, as well in actions between tenants and the lord as between tenants themselves. (b) The privilege of inspection, however, is confined to the tenants of the manor, and does not extend to third persons, who have no concern or connexion with the manor court or court rolls. (c) The rolls are not matters of record, consequently no estoppel is worked by them; and therefore, if an erroneous entry be made, it may be amended; (d) but they are nevertheless prima facie evidence, and entitled to credit. (e) If a tenant have no copy, or lose it, the roll is still sufficient evidence of his estate; (f) and if the roll be lost, he can make it good by proof. (g) And in certain cases, a surrender may be presumed where it does not appear on the rolls. (h) (a) Roe d. Beebee v. Parker, 5 T. R. 26. Roe d. Bennett v. Jeffery, 2 Mau. & Sel. 92. Chapman v. Cowlan, 13 East, 10. (b) Roe v. Aylmer, Barnes, 236. Hobson v. Parker, ib. 237. Addington v. Clode, 2 Bl. Rep. 1030. Folkard v. Hemet, ib. 1061. Bateman v. Phillips, 4 Taunt. 162. (c) Talbot v. Villeboys, cited by Buller J. 3 T. R. 142. Smith v. Davies, 1 Wils. 194. Bp. of Hereford v. D. of Bridgewater, Bunb. 269; 1 Phill. Ev. 430. As to enforcing a or supplied view of court rolls, see ante, p. 88. 289. (e) Roe v. Parker, 5 T. R. 26. B. P. C. 306. (ƒ) Calth. 47. (g) Ib. Snow v. Cutler, 1 Keb. 567. (h) Lyford v. Coward, 1 Vern. 195. Knight v. Adamson, 2 Freem. 106; 1 Ld. Ray. 735. Doe v. Calloway, 6 B. & C. 484; and post, Chap. XXV. Copies of court rolls should properly be authenticated under the hand of the steward of the manor; (a) but although they be not made or authenticated by the steward, if they be sworn to be true copies on examination with the original, they will be admissible as evidence. (b) Court rolls of a manor taken by themselves are evidence only against the tenants of the manor and the lord of the manor; the record of itself is but ex parte evidence, and does not, of necessity, bind third persons. They are exceedingly material, if followed up by possession; but if there has been a long enjoyment and uninterrupted possession, in opposition to them, they lose that importance to which they would otherwise be entitled. (c) The court rolls, although the best evidence, are not the only evidence of title to copyhold lands, although the older authorities appear to hold otherwise. (d) But the rule is now clearly settled. Thus, if there be a mistake in court rolls, either as to the lands or uses declared in them, it may be averred; (e) and if there be a wrong entry on the rolls, it may be shown to be incorrect, for the entry is not matter of record, and the party may give in evidence the truth of the matter, and is not bound by the roll. (f) And this point was much discussed in a recent case before cited ; (g) and (a) Snow v. Carter, 1 Keb. 567. Lee v. Boothby, ib. 720; 1 T. R. 466. (b) Manor of Bray's case, 2 Stra. 1703. Tuckey v. Flower, Comb. 138. Rex v. Harris, ib. 337. (c) Per Lord Gifford, M. R. in Attorney General v. Hotham, 1 Turn. 209. (d) Litt. s. 75. Calth. on Cop. (e) Towers v. Moor, 2 Vern. 98. Doe d. Priestley v. Calloway, 6 B. & C. 484. (f) Burgess v. Foster, 1 Leon. 289. And see Co. Cop. s. 40. Kite and Queinton's case, 4 Co. 25. Brend v. Brend, Finch, 254. (g) Doe d. Priestley v. Calloway, 6 B. & C. 484; and ante, p. 84, and 364. it was held, that a surrender and presentment not entered on the rolls, might be proved by a draft of an entry produced from the muniments of a manor, and the parol testimony of the foreman of the homage jury who made the presentments. (a) A copy of a surrender and admittance, purporting to be signed by the steward, and coming out of the hands of the customary tenant, is admissible in evidence without producing the court roll; (b) and a copy examined by a witness, of a court roll, is evidence without the production ofthe original. (c) 4. Fines. The proper evidence of a fine is the chirograph, which is a copy of the record, and will be admissible in evidence without proof of its having been actually examined; for a proper officer, called the chirographer, is appointed to give out copies of the agreements between the parties which are entered of record. (d) And the evidence of a record is of so high a nature, that its authority is never permitted to be called in question; and therefore, when a chirograph of a fine is recorded, no averment can be made as to the caption or time of its acknowledgment, but it must be considered as a fine of that term in which it is recorded, and no averment will be admitted to the contrary. (e) However, where there is an ambiguites latens, an averment is permitted to explain it, though not to contradict the fine. (f) But the chirographer is not authorized to copy the proclamations of a fine, therefore the proclamations must be examined (a) And see Anon. Ld. Raym. 735. (b) Rowe v. Brenton, 3 Man. & Ry. 296. (c) Id. ib. (d) Gilb. Ev. 21. 94; 2 Stark. N. P. C. 13. (e) Lloyd v. Lord Say & Sele, 1 B. C. C. S79; 4 B. P. C. 73. (f) 5 Co. 68b; 8 Co. 155 a. Doe d. Bulkeley v. Walford, 1 Ry. & Moo. 88. with the roll, before they can be given in evidence. (a) The record of the fine which remains in the possession of the chirographer is the principale recordum; so that if there be any difference between it and the record, which remains with the custos brevium, that which continues with the chirographer is considered as the true record. (b) Where a testator being possessed of land at C., whereon nineteen messuages had been erected, devised all his lands, &c. to his wife, in fee, and afterwards levied a fine of twelve messuages, twelve gardens, twenty acres of meadow, &c. ; it was held on an ejectment brought by the testator's heir, that parol evidence as to the number of messuages, of which the cognizor was seised at C. at the time of levying the fine, was admissible, and that the fine could not pass more than the twelve messuages; and it was therefore competent to show by parol evidence which were intended. (c) An affidavit of the caption of a fine taken before a British consul abroad, is insufficient, notwithstanding the 6 Geo. IV. 87. s. 20. empowers every British consul abroad to administer oaths, or take affidavits, and perform all notarial acts which any notary public might perform, and enacts, that every such oath, &c., shall be as valid as if administered before any justice of the peace or notary public in the united kingdom of Great Britain and Ireland, or before any other legal authority of the like nature. (d) (a) Gilb. Ev. 21. Allen's case, Bull. N. P. 229; 3 Taunt. 166. Doe d. Hatch v. Black, 6 Taunt. 486. S. C: Marsh 170; 1 Phil. Ev. 398. (b) 2 Leon. 83; Godb. 103. Ry. 549; 2 Carr. & Pay. 173. (d) Riddell v. Nash and others, 8 Moo. 632. Ex parte Hutchinson, 4 Bing. 606. S. C.; 1 Moo. & Pay. 559. 5. Recoveries. A common recovery must be proved by an exemplification of the record thereof; and all recoveries suffered in Wales, before the courts of great sessions were abolished by the late act, (a) must be proved by an exemplification of the enrollment under the judicial seal of the shire, town, or county, where the recovery was suffered. (b) If the recovery was suffered of lands in a county palatine, the exemplification must be under the seal of the county palatine; and this seal need not be proved, as the exemplification will be evidence of itself. (c) But where a person has purchased an estate whereof a recovery was necessary to be suffered in order to complete the title, such person, and all claiming under him, having been in possession of the purchased estate from the time of the purchase, may, after the end of twenty years, produce in evidence the deed making a tenant to the writ of entry; and the deed so produced, the execution thereof being duly proved, shall in all courts be deemed good and sufficient evidence for the purchaser, and all claiming under him, that the recovery was duly suffered and perfected according to the purport of the deed, in case the record of the recovery cannot be found, or should not appear to be regularly entered. (d) And by the 5th sect. it is enacted, that every common recovery shall, after the expiration of twenty years from the time of suffering thereof, be deemed valid to all purposes, if it appear on the face of the recovery that there was a tenant to the writ, and if the persons (a) 1 Wm. IV. c. 70. (b) 27 Eliz. C. 9, S. 8. (c) Dy. 276; Olive v. Gwin, 2 Sid. 146; Tooker v. Duke of Beau fort, Say. 276; Hard. 118. (d) 14 Geo. II. c. 20. s. 4. And see ante, p. 223, 224. |