1819. IRONS against SMALLPIECE. father might be considered as the possession of the son. Here, however, no hay is delivered during a long interval from the time of the contract, until within a few days of the father's death; and I cannot think that the hay so delivered is to be considered as delivered in execution of that contract made so long before, and consequently the son is not chargeable for the price of it. BEST J. concurred. ABBOTT C.J. The dictum of Lord Coke in the case cited must be understood to apply to a deed of gift; for a party cannot avoid his own voluntary deed, although he may his own voluntary promise. Rule refused. Tuesday, May 11th. Where, on tres TYRWHITT against WYNNE, Bart. and Another. pass for pulling TRESPASS for entering the plaintiff's close, and down a wall, the issue was, whether certain common land was the soil and freehold of the lord of the manor, on which the plaintiff was entitled to a right of common, or the soil and freehold of the plaintiff': Held that leases of minerals, &c. granted by the lord to other persons in other parts of the un breaking down a wall. Plea, that the place in which, &c. was the soil and freehold of the defendant, Sir W. W. Wynne, upon which issue was joined. At the trial at the last summer assizes for the county of Salop, before Garrow B., the question was, whether the plaintiff, who was the recent purchaser of a farm called Blaen Nantir, which consisted of about sixty acres of arable land, was also entitled to the soil of about 1000 acres of mountain land, part of which was the locus in quo, or only to a right of common thereon. The plain inclosed waste land were not receivable in evidence, unless it was first shewn that the locus in quo formed part of one entire waste, to which those leases were applicable. Held, also, that the effect of such leases, if received, would only be to prove that the lord was entitled to the minerals under the locus in quo, and not to the surface. tiff produced no documentary evidence or title deeds; but rested his case on the proof of various acts of ownership on the place in question by the owners of Blaen Nantir farm for sixty years, by feeding sheep exclusively thereon, cutting trees, turf, and fern, and granting leave to other persons to do so. The defendant, Sir W. W. Wynne, claimed the soil and freehold of this land as lord of the manor, and proved different acts of enjoyment by shooting repeatedly by himself and game-keeper, without interruption, on the premises in question, and also by collecting and taking estrays, and forbidding the burning of the gorse growing thereon; and then gave in evidence a grant dated 29th April, 9 Jac. 1., from the crown to Edward Lord Wootton, "of all the house and site of the late monastery of Valle Crucis, various closes of land, the manor of Langwest, in the lordship of Yale and the manor of Wrexham, and all the wastes, &c. thereto belonging." They then (having given due notice to the plaintiff) called on the plaintiff to produce a grant from Lord Wootton of the premises of Blaen Nantir: on which the plaintiff produced a parchment without signatures or seals. This the defendant proposed to read as a deed, or at least as evidence of one, which the learned Judge would not permit. He, however, upon the authority of Roe, d. Brune, v. Rawlins (a), received it in evidence as a document coming out of the hands of the opposite party. It was dated 29th November, 1614, and was from Lord Wootton to Edwards, of two tenements, one of which consisted of sixty-one and a half acres, or thereabouts, in various closes there named, together 1819. TYRWHITT against WYNNE. 1819. TYRWHITT against WYNNE. with all commons of pasture and of turbary on the mountain, and all other the waste lands belonging to the abbey of Valle Crucis, reserving to the grantor all mines and minerals and timber trees, together with a right to cut turves and a rent heriot and a relief heriot, and a fine on alienation, with a clause of distress if not paid: a fee-farm rent of 47. 13s. 4d. was also reserved jointly for the two tenements granted. They then gave in evidence a grant dated September 4. 1686, from Richard Edwards, John Ap Thomas, and William his son, to William Williams, Esq. of a messuage and land in Nantir in fee; and proved farther, that from the year 1712 down to the present time, two different fee-farm rents, of 21. 6s. 8d. each, appeared in the steward's accounts belonging to the family of Wynne, one as being received from the owner of Blaen Nantir farm, and the other from another farm called Blaen Cwm, both in the parish of Nantir. It appeared that Sir W. W. Wynne was the representative both of Lord Wootton and William Williams, Esq. They then proposed to read, in evidence, counterparts of leases granted to different persons not connected with the plaintiff, of minerals in other parts of the waste of the manor, but not in the place in question. The learned Judge rejected these, and told the jury that the parchment dated 1614, which had been read in evidence, was not entitled, under the circumstances of the case, to much weight, and was not to be considered by them as any evidence of a deed of that tenor; and the jury thereupon found a verdict for the plaintiff. Peake, in last Michaelmas term, obtained a rule nisi for a new trial on two grounds: first, that the Judge had not given full effect to the grant of 1614; and secondly, secondly, that he had improperly rejected the evidence of the leases of the minerals. And now Jervis and Campbell shewed cause. The document could not be considered as a deed, and the learned Judge did receive it in the only way in which it could be evidence, viz. as a document coming out of the plaintiff's hands. And all the weight which was proper to be given to it was given; for the acts of enjoyment proved were wholly inconsistent with that deed, and were quite sufficient to outweigh it altogether. As to the rejection of the leases, it is to be observed that the question was not, what rights the defendant had upon the wastes of this manor, but, whether the locus in quo was or was not parcel of those wastes. Now, how could acts of ownership on the other parts of those wastes prove that the locus in quo was part of them? Besides, if they had been received, they could have been of no importance to the verdict. Peake, W. E. Taunton, and Temple, in support of the rule. Sufficient weight was not given to the deed produced. The Judge told the jury that it was entitled to no weight; but as coming out of the hands of the opposite party, it ought to have been left to the jury ́ to decide upon its effects. Doe, d. Johnson, v. The Earl of Pembroke (a), is a strong case to shew the effect given to a paper found in the possession of a party interested. The quantity of land in that deed almost exactly tallies with the plaintiff's farm; and the payment of 21. 6s. 8d. by him to the defendant is a strong (a) 11 East, 504. 1819. TYRWHITT against WYNNE. cor 1819. TYRWHITT against WYNNE. corroborating circumstance; for the deed of 1686 shews that one of the two tenements mentioned in that of 1614 was transferred to William Williams, Esq., and of course the annual rent of 47. 13s. 4d. then became divided, which exactly accords with the evidence of the different stewards' accounts. Then, if it be admitted that this deed applies to the land, it appears to have been a grant only of a right of common, which explains the different acts of enjoyment on the part of the plaintiff. On the second point, they contended, on the authority of the cases of Barry v. Bebbington (a), and Stanley v. White (b), that the leases ought to have been received in evidence. The ground of rejection on the trial was, that the plaintiff was not party to them; but that is immaterial, Clarkson v. Woodhouse (c), Rogers v. Allen. (d) They relied, also, on the acts of ownership exercised by the defendant Wynne, as laying a foundation for the admission of the documentary evidence in question. ABBOTT C.J. The Court have listened attentively to the argument in support of this rule, because it is a question said to be of importance in that part of the country where it arises; but after the fullest consideration, I am of opinion that no new trial should, in this case, be granted. One ground on which this cause has been argued is, that the learned Judge rejected certain leases of minerals in other parts of the wastes of this manor. Now, even supposing that in strictness these were receivable in evidence, still that alone will not be sufficient; for it must be further shewn and sub (a) 4 T. R. 514. (b) 14 East, 332. stantiated, |