E. F., to prove that C. D. from whom E. F. was descended, was the legitimate 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 styling 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 Ă. 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 styling themselves relations of A. B.; others styling themselves servants in his family; others styling 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 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 (44). 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

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

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 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.

In an ejectment brought to try the validity of a recovery suffered by the father of the lessor of plaintiff, tenants in tail; it was holden, that a party being a remainder-man in the entailed property after the tenant in tail, was not a competent witness for the plaintiff. But heir apparent is competent witness in support of claim of ancestor; for the heirship is a mere contingency.

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

q Doe D. Lord Teynham v. Tyler, 6 Bingh. 390.

r Per Treby, C. J. Salk. 283.

s Hob. 188.

t Gregory v. Withers, H. 28 Car. 2. Gilb. Ev, 44. 3 Keb. 588. S. C.

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 of the eldest niece shall not inherit the landy. 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 descent". Evidence of reputation of the custom of the manora, that in default of sons, 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 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 further 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 immaterialb. And where lands were described in the declaration to be in the parish of Westbury in the county of Gloucester, and it was proved at the trial that there were two parishes of Westbury in that county; viz. Westbury upon Trim and Westbury upon Severn; still it was holden not to be a variance; although if there had been any plea in abatement in ejectment, it might have been a good objection on such plea.

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

x Roe d. Bebee v. Parker, 5 T. R. 26.
y Ratcliff v. Chapman, 4 Leon. 242.
z 1 Rol. Abr. 624. pl. 2.

a Doe d. Foster and another v. Sisson, 12 East, 62.

b Doe d. Tollet v. Salter, 13 East, 9.

c Doe d. James and wife v. Harris, B. R. M. T. 57 Geo. 3. MS. & 5 M. and S. 326. S. C.

To an indenture of feoffment by the Bank of England, the seal of the bank was affixed by a paper, wafered to the indenture, on which was written, "sealed by order of the Court of Directors of the Governor and Co. of the Bank; J. K. Secretary;" it was holden, that J. K. was not an attesting witness, and that the execution of the feoffment might be proved by the seal without calling J. K.

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 a 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 mortgagorf; 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. No less time than twenty years will raise a presumption that a mortgaged term has been assigned or surrendered; although the defendant neither proves that interest continues to be paid, nor in any way accounts for his possession of the mortgage deed 8.

The defendant produced a mortgage for yearsh, by deed, from the plaintiff's ancestor, upon which was an indorsement in hæc verba, "Received of M. O. £500 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.); 3d, that a note in writing was not required to be stamped (45).

d Doe d. Bank of England v. Chambers, 4 Ad. & Ell. 410.

e Bull. N. P. 110.

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

g Doe v. Calvert, 5 Taunt. 170.

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

(45) So in Hodges v. Drakeford, 1 Bos. and Pul. N. R. 270, it was holden, that an assignment in writing, not under seal, indorsed

The mother of a defendant who claimed to retain possession as heir at law to his father, is a competent witnessi for defendant, although the effect of her testimony be to prove a seisin in law in her husband, which would give her a claim to dower.

In ejectment by one who claims as heir of B., the son of an elder brother of B., is a competent witness for the defendant.

XII. Verdict-Judgment-Execution.

Verdict.-IN an ejectio firma of a messuagel, 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 firmam, 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,

دو

i Doe d. Nightingale v. Maisey, 1 B. and Ad. 439, cited by Park, J. in Doe d. Bath v. Clarke, 3 Bingh. N. C. 432.

k Doe d. Bath v. Clarke, 3 Bingh. N. C.

429.

1 2 Roll. Abr. 704.

m Ablett d. Glenham v. Skinner, 1 Sidf. 229.

n Denn d. Burgess v. Purvis, 1 Burr. 326. and Mss. See Comb. 101.

o 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, 55 Geo. 3. c. 184. See Schedule, Part I. tit. Mortgage.