"ders nor his heirs nor affigns fhall not build any thing at the north-end, within the breadth of the houfe that Mr. Flanders "dwells in or rents of Mr. Halfted that may be a foreftalling "or prejudice to the fame, without the confent of Mr. Halfted or his heirs or affigns, and thus it may be done without pre"judice to the lord of the manor or the tenants of the fame, or "any of the Queen's liege fubjects paffing that way; and this " we judge to be a true return of this precept to us directed, bearing date the 11th day of February 1705, and in the fourth "year of the reign of our Sovereign Lady Anne by the grace "of God Queen of England, Scotland, France and Ireland, de"fender of the faith, &c. Jam. Hullon-Tho. Anden-Tho. King-Richard Town/end-Edm. Weft.-George Taylor [X] "his mark-Tho. Perkins [X] his mark.”

46

This is the whole of the tenant's right, title and evidence in fubstance and effect, and here Serjeant Davy refted his case.

Serjeant Hill for the demandant-The precept iffued by Sir Edward Northey in 1706, in the nature of a writ of ad quod damnum, clearly proves a title in the then lord of the manor to the inheritance of the wafte which is the fcite of the tenements in question, and no title has been fhewn to take the inheritance out of the lord of the manor above 60 years.

The ancestors of the demandant have been lords of the manor of Hackney for many generations; Francis his grandfather was lord thereof before the year 1700, and died feifed in fee in 1710, when the fame defcended to Francis Tyffen his eldest fon and heir [and father of the demandant] who entered and died seised in 1717, foon after whose death the manor defcended to the demandant, who was his pofthumous and only fon.

Ofbaldefton being in poffeffion and pretending to be feifed in fee in 1736 makes a mortgage to the tenant's father, and afterwards in 1742 conveys to him the equity of redemption in fee; Ofbaldefton was only a tenant for years to the demandant's anceftor, as we shall shew to you.

It has been the ufage and cuftom of this manor for the lords thereof to make leafes to their tenants of parcels of the wafte ground for the terms of 40, 50 or 60 years, and previous to the granting fuch leafes, it has been the ufage for the steward to iffue precepts, like that which hath been produced, to inquire in the nature of a writ of ad quod damnum whether it would be any damage to the lord, the tenants, or the subject, if such a parcel of waste fhould be inclofed for the lord to let a leafe

thereof

thereof to a tenant; and there never was an inftance of a grant of fuch wafte in fee.

Upon this ufage or cuffom the precept which has been proved was iffued by Sir Edward Northey the fteward; in confequence whereof a leafe was granted by the lord to Thomas Flanders for forty-one years, who entered and built upon the wafte (the premiles in queftion) and enjoyed the fame until 1720 or 1721, when he died; leaving a widow Catharine Flanders, and several brothers or nephews.

Catharine Flanders took adminiftration to her late husband, and thereupon became intitled to the leafehold premises, took poffeffion thereof and enjoyed the fame as perfonal eftate until her death; but if Thomas Flanders had died feised in fee of the tenements, the fame would have gone to his brother, and not to his widow.

Catharine Flanders made her will dated the 12th day of Novem ber 1726, and thereby directed the premifes to be fold by her executor Roger Ofbaldefton, and foon afterwards died; the rent of 10s. per annum appears to have been paid, by Thomas Flanders, by his widow, and by Ofbaldefton himself; fome of these payments were made while the demandant was an infant and a ward of the court of Chancery, particularly by Catharine the widow of Thomas Flanders whom Ofbaldeflon reprefents, fo that the fine had no operation at all, the parties thereto having no estate in the lands whereof a fine could be levied, it was a nullity and a deceit by Ofbaldefton.

There is no ground or reafon to fay that Flanders or Ofbaldefton ever purchafed the fee, if he had fhewn his title deed to Mr. John Clarke, it would have appeared that he was only poffeffed of a term for years under the lord of the manor; it feems to be a direct fraud between Ofbaldefton and Clarke the father of the tenant; it is not material whether John Clarke was a purchaser for a valuable confideration without notice or not, for we are now upon the mere right in a court of law, and not in a court of equity.The evidence for the demandant, was then gone into as follows.

Mary Tyffen fworn-I am the firft coufin of Francis John Tiffen the demandant who is the only fon of Francis Tyffen his father, late lord of the manor of Hackney, who died about the year 1717, whom I knew and well remember, he was the eldest son of the demandant's grand-father, who was lord of the manor of Hackney, and died about the year 1710 as I have heard; the demandant was born after the death of his father, and is his only fon.

[Evidence of

the Cuftom of a manor to grant

Mr. Wall fworn-I have been fteward and deputy-fteward of this manor about thirteen years, these are the court-books of the manor whereby it appears, that the demandant's grand-father, and himself have been lords of the manor of Hackney ever fince and before the beginning of this century.

Mr. Wall was about to prove the ufage of the manor (from entries in the court-books) for the fteward of the court for the time being to iffue fuch precepts as before mentioned, in order for the lord to grant leafes of parcels of the wafte for years, and that there is not one inftance to be found wherever the lord granted a fee; but Serjeant Davy objected.

That fuch evidence of ufage within the manor is not admiffible, and cannot affect the present queftion; for if the lord of the manor has thought fit to grant a fee, he fhall not take advantage of a cuftom or ufage against his own grant; for what I infift upon is, that we have given fome evidence in order to prove that the lord granted a fee to Flanders from the words hairs and affigns of Flanders in the precept iffued by Sir Edward Northey and the return thereof by the tenants which recites the precept.

Lord Chief Juftice-You have only produced the precept of the fteward to the tenants to inquire, &c. and their return thereof, you have not produced any grant of a fee to Thomas Flanders.

Serjeant Davy-What I humbly infift upon is, that we have given evidence in order for the GRAND ASSIZE to presume that the lord granted an eftate in fee to Thomas Flanders, and that the mere right is with the tenant to hold the premifes in queftion; but the lord fays, "Whatever grant I have made to Flanders yet I fay there is a cuftom to grant only leafes for years."

06

Serjeant Hill for the demandant-I do admit that if my Brother Davy had produced a grant in fee from the lord, we could not have encountered that by this cuftom or ufage, but the evidence produced, is only prefumptive evidence of a grant in fee: I will prove that thefe precepts never preceded a grant in fee, but only leafes for years.

Serjeant Davy-The objection is not answered; the lord had a right to grant what eftate he thought fit, and he has been out of poffeffion ever fince the year 1706.

Lord Chief Juftice-From the year 1706 to 1736, there is not any certain or conclufive evidence either way, only prefumptive

evidence;

evidence; I have no doubt but that this evidence to fhew the Leafes only, is

admiffible

ufage or custom is admiffible. In 1736 we find the lord out of against prepoffeffion, but how the poffeffion was from 1706 until 1736 fumptive evidoth not yet appear. In 1706 a precept is iffued, and the tenants dence of a return that they have fet out the metes and bounds of the waste grant in fee.] which Thomas Flanders may inclose for his own ufe, with leave of the lord and tenants, and which will not be prejudicial to the lord, the tenants or the Queen's fubjects, which is very properly faid to be like a writ of ad quod damnum; but this is not a grant in fee; I defire to be understood not to mean any thing against the weight of the evidence of the precept and return, wherein are the words Thomas Flanders his heirs and affigns, but the lord's permiffion and the tenants' confent that Flanders may inclofe, furely does not amount to a grant in fee; we must take it, that this precept iffued in confequence of fome cuftom, and this evidence now offered is to illuftrate that cuftom; if the custom be proved as opened it will not be conclusive evidence, but certainly it is admiffible.

Gould Justice-I am of a different opinion, and think this is not now competent admiffible evidence; the terms of the return of the precept are "that neither Thomas Flanders his heirs or "affigns fhould build fo and fo;" a freehold was intended to be granted to Flanders; there were houfes built upon the ground before the deed poll of attornment in 1742, which is evidence that from the year 1706 there has been an enjoyment by Thomas Flanders as being feifed in fee, efpecially when confidered together with the words heirs or affigns in the return of the precept. If we were in the cafe of an ejectment, twenty years poffeffion would be a fufficient title for the tenant; the poffeffion of the tenant and of those under whom he claims for fixty years is the fame thing in the prefent cafe; it is not pretended that the lord could not grant in fee, it is not any cuftom that gives this title, the lord of the manor might as well grant in fee as for years: here is evidence, in my opinion, that the lord granted to Flanders in fee.

Blackftone Juftice-I agree with my Lord Chief Juftice that this evidence to fhew the ufage or cuftom is admiffible; my Brother Gould lays here is evidence of a grant by the lord of the manor to Thomas Flanders in fee, if it had been fo there would have been an end of the matter, but this inftrument of the precept and the return is only prefumptive evidence of a grant: the reftriction that Flanders, his heirs and affigns, fhall not build fo and fo is only a prefumption of a grant in fee; on the other fide for the demandant, they want to fhew a prefumptive evidence, that the grant was of a term for years, there may be fuch prefump

NN3

tive evidence on the fide of the demandant, and it ought to be

admitted.

Nares Juftice-I am of opinion with my Lord and Brother Blackfone that the evidence now offered is very proper and admiffible; my Brother Gould objects that this is letting in evidence contrary to a grant made by the lord to Flanders in fee upwards of fixty years before the iffuing of the demandant's writ; let us confider what the evidence is that the tenant has given, it is nothing more than evidence that the lord had a power by the precept and the return thereof, to grant to Flanders and his heirs if he fo pleafed; it is executory, not an actual grant executed, here is nothing to fhew that such grant was ever made or compleated, the tenant has not pretended to fet up any fuch grant; here is only a faint prefumption of a grant, as it appears to me, and therefore the other fide may give evidence of a cuftom to the contrary, which is very proper to be admitted in my opinion.

Gould Juftice-I ground my opinion upon the long time of poffeffion; I think upwards of fixty years' poffeffion in this cafe implies a good title.

Then Mr. Wall the fteward was examined. He produced feveral court-books of the manor, wherein are many entries of precepts from time to time iffued by the stewards of the manor for the time being, commanding the tenants to fee, inquire and return how much of the waste the lord may inclofe, without prejudice to his tenants or the King's fubjects; and, being told by the court he might refer to the entries in the books, Mr. Wall read many entries of precepts and returns thereof, and produced fome leafes made in purfuance of fuch precepts and returns, particularly he read one of thefe precepts and returns of the 28th day of January 1703, and then produced a leafe granted upon that precept and return to Thomas Afkew for thirty-two years.He read another of the fame kind of the 21ft day of April 1715, and produced a leafe in confequence thereof, to one Gamage for years. He read another of September 1661, and a leafe for years made in confequence thereof to one Jeremiah French, of part of the wafte for him to inclofe, build upon, and make into garden ground for his own houfe.

Lord Chief Juftice-Are any of these leafes entered in the court books?

Mr. Wall the fteward-No my lord. He then read another precept and return of the 18th day of April 1707, and a leafe for

years