1806.

Roe dem.

BRUNE

versus

This therefore on all the principles on which such evidence is admitted, comes in a shape to be received. In many cases, ex necessitate, the evidence of old deeds and papers is received without proof in support of them, as RAWLINGS. deeds of 30 years old. In those cases it depends on the regularity of the custody in which they are kept and the circumstances under which they are preserved, whether they are evidence or not, and the finding them in the hands of the parties with whom, according to their tenor,they ought to be placed, is in such cases proof that they were fairly preserved. So here the then situation of the party out of whose hands this paper came, removed all objections to its competence; and, without recurring to other instances, the entry in the books stands on the same foundation as the letter, because the entries in the books equally fixed the rent adversely to the parties themselves. This evidence therefore was clearly admissible."

RULE ABSOLUTE.

STAMMERS against Dixon.-February 6.

Evidence.

of court-rolis

One claimed the first grass or prima tonsura by copy of court-roll Prima tousura. under a grunt of tres acras prati; but another had the after- Copyhold. grass, and lopped the trees, and cleansed the ditches, and re- Construction paired the fences, and exercised all other acts of ownership. And upon trespass quare clausum fregit, and an issue whether it was the plaintiff's close, soil, and freehold, or copyhold of a certain manor, held that the plaintiff, as owner of the after-grass and pasture, might establish his claim to the freehold by evidence of acts of ownership, notwithstanding the grant of tres acras prati by copy. For there may be a freehold right in the one thing (the soil) and a copyhold in the other (prima tonsura.) And pratum may mean only the first grass therein, if warranted by the possession,which guides the construction of old grants. And prima tonsura is not conclusive but merely prima facie evidence of the free hold; but the word close must mean, in pleading, the freehold. And this was so held; though he who has prima tonsura paid all the tares, for that was merely by his negligence.

1806.

STAMMERS

versus DIXON.

THIS was an action of trespass for breaking and entering the plaintiff's close called Bird's Mead, at Langford, in the county of Essex, and there taking the soil and throwing it into a ditch, whereby the plaintiff's lands were overflowed, and for removing a tunnel, &c. There were several counts. The defendant pleaded the general issue, and also that the locus in quo, was a copyhold tenement, and part of the manor of Acton Peverell, to which one S. S. was admitted, and justified under that admission. And issue was joined on the not guilty, and also on the issue, whether the close was a copyhold tenement, &c. At the trial before HEATH, J. at Esser, it appeared that it was low meadow land, containing S acres, bounded on one side by a brook, where the tunnel was placed. The plaintiff had cleansed the river, and laid part of the mud on the land to raise the banks and the defendant threw back the mud into the river. This was one of the trespasses, and the other was removing the tunnel out of the brook. Exclusive acts of ownership by cutting and repairing hedges, and cutting down two trees, were proved for 60 years back, on the part of the plaintiff. It was admitted that the plaintiff also had the pasturage from old Lammas to old May day, but the defendant had the first crop. The plaintiff's predecessor had repaired the grip or ditch bounding the close, and the foriner tenants had scoured the river. For the defendant, the old copies of court-roll of the manor of Acton Peverell were produced, granting" tres acrus prati vocat Monks' Hope, and the several admissions thereto up to the present time by the same title of three acres of meadow called Monks' Hope, &c. down from the reign of Elizabeth; and it was proved that one of the tenants so admitted had cleansed the grip or ditch twice. And that they had paid all the taxes, parish-rates, and high-way rates, for the three acres. The learned judge reported that he left it to the jury to say whether the evidence upon

1806.

versus

DIXON.

the acts of ownership and possession of the land were with the plaintiff; and upon the foreman of the jury ask. STAMMER ing whether they were to take into their consideration the entries and admissions of the copyhold, he told them by no means; as they had found that the evidence in respect of these acts of ownership was in favour of the plaintiff that was decisive, as, by reason of usage, the words of the grant may be restrained and only pass the forecrop instead of the soil. And the jury then found a general verdict for the plaintiff. But the learned judge permitted the counsel for the defendant to move for a new trial and to enter a verdict for the defendant. The rule, however, was obtained only for a new trial, the court thinking that the verdict could not be so entered, if it was set aside on account of the jury not having had the admissions left to them.

SHEPHERD and BAYLEY, Serjts. shewed cause. "The effect of the plea is, that the close is part of the manor, of Acton Peverell, and, although, if the defendant had justified under the grant which has been produced, that the forecrop was thereby granted to him, and he entered and took the forecrop that would be a defence to the action, yet upon the pleadings as they now stand, the question is, whether he is tenant of the close altogether and not merely of the forecrop? One may indeed hold the forecrop and the other the land; and the court-rolls of the admissions of the defendant and his predecessors, are no evidence as against the plaintiff, any more than the title-deeds of the defendant; without proof of possession going ac cording to those title deeds; and here it may happen that the one part, the prima tonsura, to which the defendant is entitled, may be copyhold and the other freehold. The right to the soil is then to be explained by other evidence, and every act of ownership, such

1806.

STAMMERS

versus

DIXON,

as cutting trees, putting up fences, &c. was exercised by the plaintiff and his predecessors, and on the other side it was only shewn that the defendant had once or twice cleansed the ditches."

GARROW and MARRYAT, contrà, cited Ward v. Petifer, as in point to shew, that "if a man hath the grant of the first grass or prima tonsura the freehold is in him, and the lord who hath the after-grass hath but the profits in nature of common."

LAWRENCE, J. "Newstead v. Keys,+ Lord Kenyon said, "that case was not quite accurate. It meant only that prima tonsura was evidence of having the freehold."

Lord ELLENBOROUGH, C. J. 66 They say there that ejectment will lie for prima tonsura, and unless other matter be shewn to the contrary, the freehold is in him who hath the prima tonsura. Here the plaintif lopped two trees."

MARRYAT, then argued that the grant and possession of the prima tonsura was better evidence of the freehold or soil than the other evidence on the part of the plaintiff, and that, at any rate, the jury should have had the grant and admissions to the tres acras prati referred to them.

Lord ELLENBOROUGH, C. J. "The learned judge reserved to himself the true legal question of the operation of the admissions; saying that it might mean either way, according to the acts of ownership; as if he had said to the jury. You tell me how the usage is as to the possession, and I will tell you what

* Cro. Car, 362.

The court adds, "unless other matter be shewn to the contrary;" but in the marginal abstract it is taken as decided that the freehold is in him who has the first grass. 34 Geo, III. M. S.

the effect of the admission is. When the question was begun to be discussed, I was of opinion that the verdict of the jury was right, though I doubted whether the direction of the learned judge was strictly correct in terms; but I now think that the direction of the learned judge, was right as well as the verdict. This is an action of trespass to a close called Bird's Mead, or Monks' Hope. The defendant pleads not guilty, and a justification under the lord and tenant considering it as a copyhold tenement held of the manor of Acton Peverell. The word close means the entire interest, and if the defendant fails in making out, that he has the close and the whole interest in it, he fails altogether. The evidence as to the right of the defendant is confined to the first crop, every other benefit after the grass was taken has belonged to those under whom the plaintiff claimed. And in favour of the possession, we must construe the rights of the parties such as may best consist with the possession. There may exist a right of copyhold in the prima tonsura, and a right of freehold in the soil. The admission as between the lord and tenant is conclusive, though that admission is not the most cogent evidence as between other parties. But giving all the full effect to the admissions, is not the word pratum capable of receiving a construction narrower than that which imports the whole interest in the soil? The learned judge saw that, and was of opinion that if the jury thought that there was a possession entitling the defendant to less than the whole interest, he might so construe it. If so, it was necessary to put only the question of fact,how has the enjoyment been? And he properly says, if you find that the usage was so as to establish all but the prima tonsura in the plaintiff, I will tell you that in law you may so find it for the plaintif Now prima tonsura does not necessarily imply the close and the interest in the whole soil to bein the possesion of him who has the right to the prima tonsura.

1806. STAMMERS

versus

DIXON.