years made in pursuance thereof to one John Clarke-And another of the fame in 1706, and a leafe to William Francis for 41 years at 20s. per annum.-Another of the like in the year 1740. And it appeared there were a great number of entries of other precepts and returns of the fame fort, and that leafes for years had been ufually granted in pursuance thereof-And Mr. Wall further depofed, that he could not find in the books of the manor one entry or cafe of a grant in fee by the lord.

Thomas Fofbrooke was called to fhew that the premifes in question were a chattel-intereft of Catharine Flanders the widow of Thomas Flanders.-He depofed that he knew the ground in question near 60 years ago, that when he first knew it, it was wafte-ground, he thought that Thomas Flanders first built fome little houses upon it, who died between 50 and 60 years ago, and left a widow whose name was Catharine, to whom, he believed, the houfes belonged, but did not remember that the lived in any of them-That he knew Roger Ofbaldefton who built fome of the houses, three or four of them; that there were no great houfes built before Ofbaldefton came into poffeffion, that there are three or four great houses, and three or four small ones, seven in all, and that the fon of Ofbaldefton told him the houses belonged to Mr. Tyfen the lord of the manor; that Thomas Flanders left a brother, and three or four nephews and nieces, and that Roger Ofbaldefton died about ten years ago.

Charles Gwilt, produced from the Ecclefiaftical Court a copy of the act of that court to prove that adminiftration of the perfonal eftate of Thomas Flanders was granted to his widow Catharine, which was read in evidence, and held to be good without producing the original letters of adminiftration, notice having been given to produce the letters of adminiftration.

The original will of Catharine Flanders dated 12th day of No. vember 1726 was produced from the Ecclefiaftical Court and read, whereby the directs the premises in queftion to be fold to make good the legacies, and makes Roger Ofbaldefton and A. Bayly joint-executors, but by a codicil [alfo produced] revokes A. Bayly's being executor, and makes Ofbaldefton fole executor and refiduary legatee; and by the ad of the Spiritual Court for the probate of the will it appeared that Obaldefton was the only acting

executor,

Samuel Hillier produced and proved fome original accounts taken before a mafter in Chancery between 1722 1726 in a cause of Tyffen verfus Tyffen depending there when the demandant was an infant and a ward of that court, in which account the re

[Where pre

dence only is given of a grant in fee, a draft of a leafe may be given

ceiver charges himself with four or five years rent received of Catharine Flanders, and two years rent after 1726 (when the died) at 10s. per annum for the premises in queftion for the use

of the demandant then an infant and lord of the manor of Hackney; and that after that time the yearly rent of 105. is returned in arrear.

It was alfo proved that Thomas Flanders had a real estate at Waltham, and that foon after his death his nephew entered and enjoyed the fame.

66

66

41

William Ofbaldefton, the fon of Alexander Hill Oftaldefton who fumptive evi was the fon of Roger Ofbaldefton, being called and fworn,-depofed that he had in his hand a paper writing indorfed " a copy of a draught of a leafe from Francis Tyffen formerly lord of the manor, to Thomas Flanders, of the ground in question for in evidence to years. Another draught of a leafe of the like tenor which induce a pre- was found amongft the writings of the demandant by his atfumption of the grant of a torney was alfo produced by Mr. Dann his late attorney.-But Serjeant Davy objected that these draughts could not be read in evidence; for that no proof had yet been given to the court that fuch leafe or leafes ever exifted, that a leafe might have been in contemplation but never carried into execution; that there is a great difference between a draught of a leafe and an examined copy thereof, the first doth not prove that any leafe ever existed, but the latter is fome proof that a leafe did once exift, and may be read, if the original is loft or deftroyed, or cannot be found; fo he infifted the draughts could not be read,

leafe.]

Serjeant Hill for the demandant-Anfwered that fome leafe to Flanders must have once exifted, because it hath been already proved that the premifes in queftion have gone from Flanders to his widow, and from her to Roger Ofbaldefton in a course as a perfonal eftate; that rent had been paid for it to the lord of the manor as for a leafehold; that one draught comes from, and is found amongst the papers of Roger Ofbaldefton; that the demandant being a pofthumous child, and his deeds and writings being in the court of Chancery, there is a prefumption that his counterpart of the leafe may be loft; that taking all thefe circumftances together, here is a reasonable ground for the court to permit thofe two draughts to be read.

Serjeant Glynn for the demandant alfo-Anfwered that there draughts were not offered as an evidence to eftablish a leafe, but to fhew that there was a leafe in contemplation, and that there is a great prefumption that the premifes in queftion are leafehold, and not freehold, that the tenant has only given prefumptive evidence

of a grant in fee by the lord of the manor, and that thefe draughts agreeing wtih other circumftances already proved ought to be read.

Mr. Gwilt clerk to Mr. Elderton the demandant's attorneyproved that he had fearched and looked over every deed of the demandant in his poffeffion, in the room where he keeps the fame, and could not find any leafe to Flanders.

Serjeant Grofe for the demandant-Anfwered that thefe draughts were not produced and offered as conclufive evidence of a leafe, but infifted they were admiffible evidence to induce a prefumption that a leafe once exifted; and properly encountered the title made by the tenant, which was no more than a title by prefumption; and whether the evidence is fleight or ftrong is for the confideration of the gentlemen of this GRAND ASSIZE, and therefore it ought to go to them,

Serjeant Davy in reply-Said that his objection was not answered; that unless thefe draughts go to prove that fuch a leafe was executed and once existed they are no evidence at all; that fearch having been made and no leafe to be found, was (if any thing) rather a proof than no leafe ever exifted; that when evidence is offered of a deed fuppofed to be deftroyed or loft, it is neceffary, 1ft, To prove that fuch deed once exifted. 2dly, That it is deftroyed or loft, and that diligent fearch hath been made in a proper place or places and it cannot be found; or 3dly, That it is in the hands of your adverfary, who refuses to produce it upon notice fo to do; after having done this, a reafonable proof may be given of a copy or the contents of fuch deed; a draught alone doth not prove that a deed did ever exist, without other circumftances, as letters between the parties, inftructions to counfel, &c. &c. fo he concluded thefe draughts ought not to be read,

Lord Chief Juftice-The tenant claims under a grant from the lord in fee, and has only produced prefumptive evidence thereof; the demandant infifts that the premises in question are only leafehold; he has proved that rent has been paid for the fame as upon other fimilar leafes which have been produced and read by the fteward of the court of the manor; he has also proved that the premises have been enjoyed as part of the perJonal eftate of Thomas Flanders, and that there is no inftance to be found in the court books of any grant of a fee by the lord in confequence of fuch precepts and returns thereof as have been read; and therefore I think thefe draughts ought to be read as a reasonable prefumptive evidence that there may have been fuch a leafe as this once exifting; efpecially as fearch has been pro

perly

perly made for a leafe among the lord's deeds, and none can be found. The reft of the judges were of the fame opinion, fo the draughts of leafes to Thomas Flanders for 41 years were read.

Blackstone Juftice-It-appears in evidence that Roger Ofbal defton was the fole executor of Catharine Flanders, and refiduary legatee of her perfonal eftate, and that two years rent was paid after her death; fo that rent must have been paid by Roger Ofbal-defton. Here both fides refted the evidence, which the Lord Chief Justice fummed up to the following effect.

Lord Chief Juftice De Grey-Gentlemen of this GRAND ASSIZE! you are to determine this question as to the mere right between the parties, without regarding the fefin of the tenant or those from whom he claims for any time lefs than fixty years. next before the day of iffuing the demandant's writ of right which was the 20th day of November in the twelfth year of his prefent Majefty's reign in the year of our Lord 1771, for if the tenant or thofe under whom he claims have been wrongfully fefed in poffeffion for lefs time than 60 years that is not to bar the demandant of his right.

The ancestor of Mr. Ten at the beginning of this century was lord of the manor of Hackney: the lord of a manor only may inclofe as much of the waste or common within his manor as he pleases, leaving fufficient for the tenants; but the grantee of a lord cannot inclofe any part of the wale or common without the confent of the tenants of the manor as well as the lord; and therefore, you fee that the lord of this manor has, in many inftances, procured the confent of the tenants for himself and thofe to whom be has made leafes of part of the wafe, to inclofe the fame and to build thereupon, as hath been proved to you from the many entries of precepts to inquire, &c. in the nature of writs of ad quod damnum and the returns thereof, and from leafes made in confequence thereof, which have been produced by the steward of the court of the manor and read to you.

It appears that this ufage has prevailed for about 100 years; that there is a return of one of these precepts in 1706, which fets out the dimenfions of the ground in queftion upon the wafte which Thomas Flanders might inclofe and enjoy for his own ufe, and fays that he fhould maintain a certain water-course, and that neither he, his heirs or affigns, fhould build fo and fo, as is expreffed in the return which has been read to you.

It appears that Thomas Flanders was in poffeffion above 60 years ago, but it does not appear that he had any grant in fee of the

premifes

premifes in question; that after his death his wife took adminiAration of his perfonal eftate, enjoyed the premises and paid 105. per annum rent for the fame to the lord of the manor until her death; that he made her will, and Ofbaldefton fole executor thereof and refiduary legatee, wherein the gives him power to fell the premises in queftion to make good the legacies in the. will it the perfonal eftate fhould not be fufficient; that Ofbal defton then got poffeffion of the premises and paid the rent for a year or two. At this time the manor had defcended two descents fince the year 1706, for the demandant was born in

1717.

-In

John Clarke (the father of the tenant) when he took the mortgage in 1730, could have no good title without having recourfe to the lord of the manor, from whom the fame must be derived, nor does it appear that he made any inquiry about it1742 Obaldefton released the equity of redemptton in fee, and a fine was levied by him and his wife to the ufe of John Clarke in fee, who feems to have taken the title upon the length of poffeffion, for there is not the leaft reference to any title of Obal defton, fo that there is a ground to fuppofe fome fraud in him.

George Clarke the heir of John Clarke is now in poffeffion, and the question for you to try is, whether you fee fufficient ground to prefume that in the year 1706, or thereabouts, there was a grant by the then lord of the manor to Thomas Flanders in fee referving a quit-rent? or whether there was only a leafe to him for 41 years which was expired in 1747, or thereabouts? One of these two facts you are to prefume, for there is nothing more than prefumptive evidence on either fide.

The counsel on the part of the tenant Mr. Clarke rely on thefe circumftances, viz. that the tenants of the manor made a return to the precept in 1706, fetting forth that they had viewed the wafte ground and the dimenfions thereof by the rod which might be inclofed by Thomas Flanders for his own ufe, without prejudice to the lord or the tenants of the manor of the Queen's fubjects, and that Flanders nor his heirs or affigns fhould build thereon fo and fo; but this doth not imply a grant in fee to Flanders.It is alfo obferved for the tenant, that Flanders, his heirs and affigns were to do fome things, as appears by the return of the precept; this is only a circumftance, and doth not imply a grant in fee; I obferve that moft of thefe inquiries by the tenants of the manor are, whether it would be prejudicial if the lord of the manor himself should inclose, but there is no fuch return as this for a tenant to inclofe reftraining him, his heirs and affigns, not to build fo and fo.

Another