Muggleton v. Barnett

by B. Martin, B. Bramwell, J. Wightman, J. Crompton, J. Williams, J. Erle, J. Cresswell, J. Coleridge, and C.J. Cockburn

Trinity Vacation

*TRINITY VACATION, 20 VICT. [*282

MUGGLETON v. JOSEPH BARNETT and Another. June 28.

In ejectment for copyhold premises, the plaintifl‘ claimed as customary heir in Borough English of E. M., who purchased the premises in 1772. Upon the death of E. M. in 1812, the premises descended to his two infant granddaughters, as coparceners. One of them died unmarried, and was succeeded in her moiety by her sister, who, in 1836, married the defendant. She died in 1838, leaving one son, to whom the premises descended, and who died in 1854, without issue, and was the person last seised. It was proved, that lands in the manor descended lineally to the youngest son of the person last seised ad inlinitum, and if no son to the daughters as coparceners ; if no lineal heirs to the youngest brother of the person last seised, and to the youngest son of such youngest brother, and if the youngest brother died without issue, to the next youngest brother; and if no brother then among the sisters as parceners. There was also an entry of descent, and admission of the youngest son of an uncle, and of the youngest sons respectively of two sisters, heirs of the person last seised. The plaintilf was the youngest son of the youngest brother of E. M. the purchaser.

Held, that the custom did not extend to so remote a collateral relation as the plaintifiz Per Pollock, C. B., and Martin, B. (Bramwell, B., disscntiente).

THIS was an action of ejectment brought by the plaintiff on the 23d January, 1855, to recover possession of certain copyhold premises, situate at Caldecott, and in the manor of Lyddington-cum-Caldecott, in the county of Rutland, which were in the possession of thedefendants, and which the plaintiff claimed to recover as heir-at-law, according to the custom of the said manor upon the death of Bryan Barnett, who died on the 4th March, 1854, and was the person last entitled to, and as the defendants contended, last seised of the said copyhold premises. The cause was tried at the last Summer Assizes for Rutland, by consent of the parties, before Willes, J ., without a jury, with power for the said Judge to raise any question for the consideration of the Court, and the learned Judge did accordingly direct that a verdict should be entered for the plaintilf, subject to the opinion of the Court on the following case :The premises in question are copyhold of inheritance within the manor of Lyddington-cum-Caldecott, and the *custom of descent was U283 proved to be, that the land descended to the youngest son of the person last seised, if he had more than one; and if such youngest son were dead without issue, to the next youngest son; or if no other son, to daughters as parceners; and if no issue, then to the youngest brother (if more than one) of the person last seised, and to the youngest son (if more than one) of such youngest brother; in case such youngest brother were dead without issue, to the next youngest brother, andif no brother then among the sisters as parceners.

There is no customary or formal record upon the rolls of the Court of the custom of the manor with respect to descents, but the custom was proved by numerous entries of admission upon the rolls of the manor from the year 1648 (the earliest of the existing rolls) down to the present time. In later times, indeed, there appear several entries of elder brothers as heirs, between the year 1825 and the present time; but the great preponderance of entries was in favour of the special mode of descent above mentioned; and the learned Judge expressly found the custom to the extent hereinafter stated, but subject to the question hereinafter mentioned with respect to the extension of the principle of descent to remote collateral relations.

It was proved at the trial that Bryan Barnett, the person last entitled to the said copyhold premises, died without issue, and his great-grandfather, Edward Muggleton, was purchaser of the said premises, having bought them in 1772, and having been duly admitted thereto. _Upon the death of the said Edward Muggleton in 1812, the premises descended to Elizabeth Jane Muggleton and Rebecca Muggleton, the two infant daughters of his only son Edward Muggleton, who died in his fat-her’s lifetime. The said Elizabeth Jane Muggleton and Rebecca Muggleton were duly admitted tenants in respect thereof, in the year Q84] 1827, as co-heiresses *to their grandfather; and the said Rebecca Muggleton dying in the year 1828, a minor, intestate and unmarried, was succeeded in her moiety as heir by her sister Elizabeth Jane, who in the year 1836 married the defendant, Joseph Barnett. Upon her death in 1838, the said Bryan Barnett succeeded to the said premises as heir to his mother, being the only child of the marriage, and died in possession of the premises in 1854, but without having been admitted and without issue. Upon his death all the lineal descendants of his great-grandfather, the said Edward Muggleton, became extinct.

The defendant did not prove the existence of any custom in the said manor of tenancy by curtesy.

The plaintiff was the youngest son of the youngest brother, Peter, who died in 1797, of the said great-grandfather, Edward Muggleton, who died seised in 1812. There were several other brothers of the great-grandfather, Edward Muggleton, and of the plaintifi"s father, one of whom at least left issue living at the date of writ; and there had been also an elder brother of the plaintiff, but he was dead before the date of the writ, leaving issue; but the plaintiif claimed as the youngest son of the youngest brother of the great-grandfather Edward Muggleton. In addition to the entries on the rolls, which established the custom of descent in the manor to the extent above stated, there was one entry of descent and admission in favour of the youngest of the uncles of the person last seised, and one entry of descent and admission showing the descent to the youngest sons respectively of two sisters who were heirs, parceners, to the person last seised; and the learned Judge was of opinion, and directed that these entries were sufficient to establish that the custom of the manor extended so far as is shown by the above last-men.285] tioned entries ; but there were no instances on the *rolls in which the custom had been extended to more remote collateral relations than those above specified. The plaintiff contended that the above instances were sufficient evidence to show that the custom extended to the plaintiff as the youngest son of the youngest brother of the said greatgrandfather of Bryan Barnett. The defendant contended that there was no evidence to authorize an extension of the custom of descent in favour of so remote a collateral relative of the said Bryan Barnett. The learned Judge decided the case in favour of the plaintiff upon the above question, subject to the opinion of the Court on this case. The question for the Court to decide is whether, under the circumstances above stated, the plaintiff is entitled to recover in the action. If the Court shall be of that opinion the verdict is to stand; but if not, a verdict for the defendant or nonsuit is to be entered.

Mundell argued for the plaintiff (June 6.)—The case involves two points—first, whether there is any evidence that the custom extends to so remote a collateral relation as the plaintiff; and secondly, whether the plaintiff is not entitled to recover as the customary heir of the purchaser, Edward Muggleton. First, a custom is found which excludes all those who would otherwise claim collaterally in the second degree, that is, in the descending line; and therefore, as regards the question of representation, there is no difficulty; because the case finds that the youngest son of the youngest brother may inherit. In considering this question, it is important to bear in mind that at the time of the Conquest all lands were of Gavelkind tenure, quoad inheritance; though Lord Coke seems to have been of a different opinion: Clements v. Scudamore, 1 P. Wms. 63; Blackborough v. Davis, 1 P. Wms. [*286 41. *Littleton says (s. 165):—“Some boroughs have such a custom, that if a man have issue many sons and dieth, the youngest son shall inherit all the tenements which were his father's within the same borough, as heir unto his father, by force of the custom, the which is called Burrough English.”. And Lord Coke, in his comment on that passage (Co. Lit. 110 b), says, – “And yet by some customs the youngest brother should inherit, for consuetudo loci est observanda.” The custom has altered the mode of descent, but the right of representation remains as at common law. There is no difference between the custom of Gavelkind and Borough English, except in the quantity of land which the heir takes: Clements v. Scudamore, 1 P. Wms. 63. It will be argued that there is a distinction as regards the right of collaterals, but that position is not warranted by the authorities. The earliest case is Ratcliffe and Chaplin's case, 4 Leon. 242, the report of which in Leonard does not show the precise point before the Court, but it is thus stated by Dancy in Chapman's case, 2 Roll. Rep. 366,-‘‘Fuit un custom in Coppihold que si home ad coppie in fee, et morust aiant issue 3 files, que le eigne avera tout: et le case fuit, purchasor de Coppihold morust sans issue aiant plusers soers, et ajudge que touts averont in coparcenary, car le custom solemént al files.” According to the H. & N., VOL. I.-13 report in Leonard, Rateliife and Chaplin's case was an ejectment, and upon not guilty pleaded the plaintifl' proved by witnesses “that the eldest heir, be it male or female, should inherit the land,” andaby entries on the Court rolls “that the eldest sister ought to inherit, and that the youngest sister should have nothing in the land :” the defendant gave in evidence divers entries on the Court rolls, and especially one “ that both sisters shall inherit as coparceners did by the common lawz” ‘Q87 *the jury found for the custom, in regard they, upon their own] knowledge, knew the usage of the country, and that in divers places it had been so used in the hundred within which this manor was. But it was agreed by the Court “ that if the custom had been that the eldest sister only should inherit, yet by that custom the eldest aunt, or the eldest niece, should not inherit the land: and so it is in the case of Borough English, where the custom is that the youngest son shall have the land, it doth not give it,_to the youngest uncle, for customs shall be taken strictly. And Foster, J., said that so it was adjudged in one Totnam’s Case. And in the course of the argument Lord Coke said, “that upon the evidence given to the jury, the Court enforced the parties which maintained the custom to show precedents in the Court rolls to prove the usage, and he said that without such proof, and that it had been put in ure, although it had been deemed and reputed to have been the-true custom, yet the Court could not give credit to the proof by witnesses.” But that case only decides that there must be evidence that the custom exists among collaterals, and that the custom being in derogation of Gavelkind and the feudal law must be construed strictly. Moreover, that case has not met with universal approbation. In Roe d. Beebee v. Parker, 5 T. R. 26, Grose, J., says, “ The dictum of Lord Coke in the case in Leonard has, however, been cited to show that this isnot evidence. It must be remembered that there are considerable inaccuracies in the report of that case ; and I think that Lord Coke meant to comment on the credit which was due to the evidence rather than to its admz'ss2'bz'lz'ty.” Here there is evidence that the custom extends to remote collateral relations. The right to inherit amongst males of an equal degree is invariably confined to the youngest, and when it is once shown that a youngest collateral male may take, the Q88] presumption arises that all, in any degree however_remote, *are . equally entitled. The evidence not only shows a right of representation in collaterals, but also a preference for the youngest of the male stock, when they come in by right of representation, to parceners; and when the common ancestor is the grandfather the custom is expressly found. Whether a custom of this kind should be extended was considered in Doe d. Foster v. Sisson, 12 East, 62, where it was held that evidence of reputation of the custom of a manor,—that in default of sons, the eldest daughter, and in default also of daughters, the eldest lister, and in case of the death of all, the descendants of the eldest daughter or sister respectively of the person last seised, should take,-1 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. There Lord Ellenborough, C. J., said,—“ Though this reputation in its generality went beyond the particular instances proved in which the custom had been put in use, (which however was established not only in the case of the eldest sister’s taking, but also of the eldest sister’s'son taking, upon the death of the tenant last seised); yet, how can we say that it was not evidence to go to the jury (which is the question we are now to decide), of the larger custom, of which the particular instances proved were only so many branches derived from the same root?” Reliance is placed on the authority of Com. Dig. tit. “ Burrough English,” where it is said, “ But these customs shall be taken strictly; and therefore the custom of Burrough English does not extend to the youngest brother, without a special custom, 2 Cro. 198, Cro. Car. 411, 1 R01. 623,1. 42. Nor a custom for the youngest brother, daughter, sister, &c., *extend to an aunt, U289 &c., 1 Rol. 623,1. 40, 4 Leo. 242, Godb. 166; or a niece, 4 Leo. 242. So, if there be a custom, that a descent shall be to the youngest son, and he dies in the life of his father; the descent shall not go to his issue without a. special custom. Court divided. Jon. 362 R. Contra, 1 Sal. 243, Mod. Ca. 120.” But that only applies to cases where there is no evidence that the custom extends to remote collaterals. In Reeve v. Malster, W. Jones, 351, Cro. Car. 410, 1 Roll. Abr. 624, pl. 1, a. tenant of a. manor being seised in fee of a copyhold, which by the custom of the manor descended to the youngest son of »the tenant dying seised, according to the nature of Borough English, surrendered this copyhold to the use of himself and his wife and his heirs. He afterwards died leaving issue three sons. The youngest son died in the lifetime of his mother without issue, and then the motherdied, and the question was, whether the eldest or middle son should inherit. Brampton, C. B., and Berkeley, J ., were of opinion that the middle son ought to have the land, as if the youngest son had never been; for he shall make title from his father. But Jones, J., and Croke, J., held that the eldest son had better title, for the youngest son being the heir in whom the copyhold vested at the death of his father, the custom had its operation and was at an end. Holt, J., in delivering the judgment of the Court in Clements v. Scudamore, 1 P.-Wms. 63, 6 Mod. 120, 1 Salk. 243, approves of the opinion of Brampton, J., and Berkeley, J., and he says, that “ this custom is not to be taken strictly and according to the letter, but shall receive such construction as may comprehend necessary consequences and incidents in course of descents.” In Locke n. Colman, 1 Myl. lit C. 423, the custom was, that, on the death of a. person seised of property within the manor, leaving no *widow, U290 child, or brother, the youngest sister shall inherit, and that was held not to exclude the issue of a deceased brother. Sir John Savage’s Case, 2 Leon. 109, 208,(a) which was considered an authority that customs of this kind must be construed strictly, has been overruled by Doe d. Milner v. Brightwen, 10 East, 583. The case of Doe d. Hamilton 'v. Clift, 12 A. 8: E. 566,“ has no bearing on this case, because there the entries on the roll supported the custom to the extent claimed. The rules of the common law may be called in aid. In Black. Com. vol. 2, p. ‘.223, the learned author, after stating the canons of descent, says,—“ This is the great and general principle upon which the law of collateral inheritance depends; that, upon failure of issue and lineal ancestors in the last proprietor, the estate shall descend to the blood of the purchaser; or that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally descended."

Secondly, the plaintiff is entitled to recover, as the customary heir of the purchaser, Edward Muggleton. This question depends on the construction of the Inheritance Act, 3 & 4 Wm. 4, e. 106. By the interpretation clause (sect. 1), “ the purchaser” shall mean the person who last acquired the land otherwise than by descent, or than by any escheat, partition, or enclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent. The 2d section enacts, “ That in every case descent shall be traced from the purchaser,” &c., “ and that the person last entitled to the land shall, for the purposes of that Act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited,” &c. ; therefore succession in stirpes is abolished, and the *291] “purchaser” is substituted for the person *1ast seised: Doe d. Blackburn v. Blackburn, 1 Moo. & R. 547; Sugden’s Vend. and Purch. p. 549, 11th ed. The custom equally applies to that mode of tracing the descent.—He also cited Byth. and Jar. Convey., by Sweet, vol. 1, p. 139, 3d ed., and Cooper v. France, 19 L. J. Chan. 313.

Hayes, Serjt., for the defendant.—As a general rule, where the customary descent is diflerent from that by the common law, it must be construed strictly: Cruise Dig. tit. xxix. c. 5, s. 32; Pain v. Herbert.(a) There are no entries on the Court rolls of the custom relied on, and it cannot be inferred from a custom for the youngest son or youngest brother to inherit, that the young~ est remote collateral relation may also inherit. [MAR'rIN, B.—In Les Termes de la Ley, tit. “ Borow English,” it is said “Borow English is a customary descent of lands or tenements in some places, whereby they come to the youngest son, or if the owner have no issue to his youngest brother, as in Edmunton, Kitchin. f. 102."^[1]] In Bayly v. Stevens, Cro. Jae. 198, it was resolved by the Court, “ that where land in Borough English descends to the youngest son and he dies without issue, it shall not go to the youngest brother; for the custom doth not hold place betwixt brothers without a particular custom, but the eldest brother shall have it.” Littleton also describes the custom of Borough English as limited to the youngest son: sect. 165. [BRAMwELL, B.“—The reason given by *Littleton for the custom (sect. 211), “because P29‘, that the younger son (if he lack father and mother) because of "' his younger age may least of all his brethren help himself,” will not apply to the youngest brother.] In Robinson on Gavelkind^[2] that is stated to be the true reason. Reeve v. Malster, Cro. Car. 410, W. Jones, 361, and Clements v. Scudamore, 1 P. Wms. 63, 1 Salk. 243, 6 Mod. 120, are authorities that the custom of Borough English applies only to lineal descendants, and that any special custom extending it to collaterals must be strictly proved. Lord Holt, in his judgment in Clements v. Scudamore, refers to a case of Hale 11. , where the custom of the manor was that the copyhold lands of every tenant dying seised descended to the younger son. A surrender was made to the use of B. and his heirs, who died before admittance. It was agreed, that if B. had been admitted, after his death the youngest son should have inherited;_ but dying before admittance, the question was between the eldest and the youngest son of B., who should have the land: and it was adjudged that the eldest son should in this case inherit, because of the straitness of the custom, there never having been any seisin in the ancestor. In Cruise's Dig. tit. xxix. c. 5, s. 34, it is said--“ If a custom be alleged that the eldest daughter shall solely inherit, the eldest sister shall not inherit by force of that custom. So if the custom be that the eldest daughter and the eldest sister shall inherit‘, the eldest aunt shall not inherit. So if the custom be that the youngest son shall inherit, the younger brother shall not inherit.” In Denn d. Goodwin v. Spray, 1 T. R. 466, the custom was that lands were descendible to the eldest sister when there was neither son nor daughter; and the Court said that as there was no proof on the Court rolls of the course of suc-[graphic]-cession in the collateral *line further than the case of a sister, it *293 followed that the copyhold U1 question did not go to the youngest [ niece. This case is not distinguishable from that. In Roe d. Beebee v. Parker, 5 T. R. 26, and Doe d. Foster v. Sisson, 12 East, 62, there was evidence of the mode of descent relied on.

Secondly; the only alteration made by the 3 & 4 Wm. 4, c. 106, is, that in tracing the descent, the “purchaser” is substituted for the person last seised, and title may be made through him, though he has not entered: Doe d. Hamilton v. Clift, 12 A. & E. 566.‘ The custom is limited in the same manner as before that Act.

Mundell, in reply.—This is not a feudal tenure, but a tenure in socage; and the custom is arbitrary, depending on the will of the lord. Clements v. Scndamore shows that such a custom is not to be construed strictly. In Denn d. Goodwin 'v. Spray, theycustom was that lands should descend to the elder sister where there was neither son, daughter, nor brother; therefore the custom was limited to the immediate heirs of the person last seised ; for a sister is immediate heir to her brother: Collingwood v. Pace, 1 Vent. 413. But it was sought to extend that custom to a person who was not immediate heir, but claimed through a. common ancestor, namely, a daughter of the eldest brother of the person last seised. By the 3 & 4 Wm. 4, c. 106, “ descent" shall mean the title to inherit land by reason of a consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue.” The heir must be traced from the purchaser, and throughout the youngest relations are to be preferred.

Cur. adv. vult. The Court now delivered judgment.

Martin, B.

Q94] *MARTIN, B.-This is an action of ejectment, which, by consent of the parties, was tried before my brother Willes at the last Rutland Assizes. The plaintiff claimed as heir in Borough English of some copyhold property in the manor of Lydington-cum-Caldecott, in the county of Rutland. The property had originally been purchased in 1772 by Edward Muggleton, the great-grandfather of the person who died last seised. He died in 1812, and the property descended to his two infant granddaughters as coparceners. One of them died unmarried, and her share went to her sister, who died in 1838, leaving one son, to whom the property descended, and who died in 1854 without issue, and was the person last seised. The plaintiff is the youngest son of the youngest brother of the first purchaser, Edward Muggleton ; his father therefore was, or would have been (had he been alive), the great-great~ uncle of the person last seised. It was proved that there were descendants of elder brothers of the first purchaser alive at the time of bringing the ejectment, who would therefore have a preferable title to the plaintifl', unless the custom prevailed.

To prove the custom, the plaintiff proved that the lands in the manor descended lineally to the youngest son of the person last seised in infinitum, and if no son to the daughters as parceners. He also proved instances, that if there were no lineal heirs the youngest brother took, and the youngest son of the youngest brother; and if the youngest brother died without issue, the next youngest brother took; and if no brother, then sisters as parceners. He also proved instances in which ‘the youngest son of an uncle took, and the youngest sons of two sisters, who were coparceners, respectively took. From this evidence the learned Judge drew the conclusion that the custom existed generally amongst all collaterals, and decided in favour of the *plaintifi', [W95 subject to the opinion of this Court, upon a case stating the above “ facts. If the case were new, I own that I should arrive at the same ‘conclusion as the learned Judge. I concur with what was said by Sir Samuel Romilly in his argument in Doe d. Denn v. Spray, 1 T. R. 466, that if such evidence does not prove the custom generally amongst collaterals, it amounts to an impossibility to prove it at all; but it seems to me that the authorities are too strong to be got over, at least by this Court.

The 165th section in Littleton states thus :—“ Some boroughs have such a custom, that if a man have issue many sons and dieth, the youngest son shall inherit all the tenements which were his father's within the same borough as heir unto his father by force of the custom which is called < Borough English.’ ” Lord Coke, in his Commentary on the section (110 b), says, “ by the same custom the youngest brother shall inherit ;" and in a note by Mr. Hargrave, it seems to be considered that the extension of Borough English to the collateral line is beyond the custom of Borough English properly so called. In section 211, Littleton again states the custom as being to sons, and gives a reason for it that “ the youngest son may least of all his brothers help himself, which reason certainly does not extend to collaterals.” In the “ Termes ide la Ley,” Borough English is defined to be “ a customary descent of lands or tenements in some places whereby they come to the youngest son, or if the owner have no issue to the youngest brother.” This would seem to extend the custom properly so called to a collateral; but Lord Chief Baron Comyns, in Dig. tit. “Borough-English,” lays it down that the custom does not extend to the youngest brother without a special custom; and he adds, that such customs are to be taken strictly, and that a custom for the youngest *brother or sister P296 does not extend to an aunt or niece; and if the custom for a sister does not extend to an aunt, it is difiicult to say that the custom for an uncle extends to a great-great-uncle. This view of the very strict nature of the custom was adopted by the Court of King’s Bench in Denn v. Spray, above cited. Several cases were cited on behalf of the plaintiff ; one of them, Locke v. Colman, 1 Myl. & C. 423, seems to confirm the strict view in which this custom was looked at in the law; the others do not seem to affect the question. It seems to me therefore that the case is settled by authorities which a court of error alone is competent to overrule, if they are to be overruled. As I have already said, if I were to decide upon the casein the absence of authority, I should coincide in the judgment of my brother Willes. I should observe that this is solely my judgment, and that the Lord Chief Baron goes further, and is of opinion that the custom is to be taken most strictly.

Bramwell, B.

BRAMWELL, B., said.—I am unable to concur in the opinion which has been expressed. I agree with my brother Martin, that if this matter is considered res integra, the plaintiff would be entitled to judgment, but I think that the authorities are not such as to prevent us from now giving judgment in his favour. I am bound, therefore, shortly to state my reasons for that opinion. ,

We are called on to ascertain what the custom is in the manor in question. Now I fully agree, that if it were proved that the custom prevailed to a certain extent, as upon a special verdict, we should have no right to extend the custom beyond the actual proof ; but the question we have to determine is, what is the custom? A variety -of 297] instances were proved in which the nearest youngest *ma-le relative of the person last seised took ; and may we not infer from thence, that there is within the manor this canon or principle of. descent, that ‘the nearest youngest male relative shall invariably be found out? It appears to me, that we must either look at the actual instances of succession proved, as arising from some original arbitrary rule of those who had the power of determining the right of succession in that manor; or we must refer them to some general rule depending on principle. It seems to me more natural and more logical to attribute them to a rule of general application depending on principle, than to a mere arbitrary rule; and to say that the founder of the rule of descent in the manor determined, not merely that the youngest son should take, and failing sons the youngest brother, and failing sons and brothers the youngest uncle, and failing sons, brothers, and uncles the youngest sons of the youngest uncles, but that also in all other cases the same rule of descent should prevail. I understand my brother Martin to be of that opinion ; but he thinks that the authorities are too strong to be got over. If there was a case in point, I should acquiesce in it, because I think it is extremely inconvenient that Courts of co-ordinate jurisdiction should differ, instead of referring the matter to a Court of appeal. The principal case relied on, is that of Denn v. Spray, 1 T. 11.466. With respect to that case, I cannot help observing in the first place, that though it came before the court, not upon a special verdict but on a special case, so that the Court might have drawn inferences (though, perhaps, not very extensive ones, according to the notion of those days), yet they decided the case on the authority of Ratclitfe v. Chapman, 4 Leon. 242, which was a special verdict where the jury had actually found the custom to a certain extent, and the question was, whether on Q98] that *special verdict the Court could extend the custom to something not within the terms of the exact finding ? They could not, on any principle, do that. In Denn v. Spray, the Court do not seem to have adverted to that distinction. However, it is not necessary to say that Denn v. Spray is not law, and for this reason :—-I have already stated that I think we are warranted in ascertaining a principle, and that by the process of induction, we may infer as the principle which governs the rule or canon of descent in this manor, that the nearest youngest male relative must always be sought for. Now in the case of Denn v. Spray, the evidence was, that the eldest daughter took to the exclusion of other daughters where there was no son; that the -eldest sister took to the exclusion of other sisters where there was no son, no daughter, and no brother; and it was sought to extend that custom to an eldest niece. Now let us see what is the rule or canon of descent which might in that case be legitimately inferred from those instances. You have no right to infer from ascertained effects a cause more than enough to produce them. Then it seems to me that all which could be inferred from those two instances would be, that the rule or canon of descent in that manor was, that where there was no immediate male heir to the person last seised, and there was an immediate female heir, she took to the exclusion of those who would otherwise have been parceners; because, it will be observed, as was mentioned in the able argument of Mr. Mundell, that a daughter is immediate heir to her father, and a sister is immediate heir to her brother. That will be found laid down in Collingwood v. Pace, 1 Vent. 413. In _Stewart’s Black. Com. vol. 2, p. 250, the learned editor, speaking of Lord Coke’s opinion that the sons of an alien, though natural born_*subjects, cannot inherit to *299 each other, says, “But this opinion has since been overruled, [and it is now held for law that the sons of an alien, born here, may inherit to each other, the descent from one brother to another being an immediate descent by the former law." Therefore the instances where the eldest female had taken to the exclusion of others, were instances of a daughter and sister who were immediate heirs to the person last seised, and not claiming through a common ancestor; but the attempt in the case of Denn v. Spray was to extend the custom to a female who was not immediate heir to the person last seised, but who claimed relationship to him through a common ancestor. Then, according to the principles which I have ventured to suggest, that decision is right, for the evidence being that the custom gave an exclusive right to one of several, who would otherwise have been parceners, where they were immediate heirs to the party last seised, you could not infer from that any principle which would extend the custom to the case of a female, who was one of several parceners not immediate heirs to the person last seised, but claiming through a common ancestor. It therefore appears to me, that we may hold the case of Denn 11. Spray to be rightly decided, and yet it is no authority for the decision which my brother Martin says that he has been compelled to come to. With respect to the authorities in Comyns' Digest, tit. “Borough English,” I have examined them with attention, and they appear to me consistent with what I am now stating. Upon these grounds I think that we may infer” from the instances proved in this manor, that there is a rule or canon cf descent which comprehends every case which comes within it; and that rule is, that the nearest youngest male heir instead of the nearest oldest male heir of the person last seised is entitled to take as customary heir. Therefore I think that the plaintiff is entitled to judgment.

Judgment for the defendant.

Notes

1. In the same book, tit. “ Burgh English," “it is said Burgh English or Borough English is a custom in some ancient borough, that if a man hath issue divers sons and dies, yet the youngest -Ion only shall inherit and have all the lands and tenements that were his father's, whereof he died seised within the same borough, by descent, as heir to his father by force of the custom of the said borough."
2. Appendix, p. 388, 3d ed.

In the Exchequer Chamber

270 MUGGLETON V. BARNETT 2 H. & N. 653.

[653] IN THE EXCHEQUER CHAMBER. (Error from the Court of Exchequer.)

MUGGLETON v. JOSEPH BARNETT AND ANOTHER. Nov. 26, 1857. In ejectment for copyhold premises, the plaintiff claimed as customary heir in borough English of E. M., who purchased the premises in 1772. Upon the death of E. M. in 1812, the premises descended to his two infant grand-daughters, as co-parceners. One of them died unmarried and was succeeded in her moiety by her sister who, in 1836, married the defendant. She died in 1838, leaving one son, to whom the premises descended, and who died in 1854, without issue, and was the person last seised. It was proved that lands in the manor descended lineally to the youngest son of the person last seised, ad infinitum, and if no son to the daughters as co-parceners ; if no lineal heirs, to the youngest brother of the person last seised, and to the youngest of such youngest brother : and if the youngest brother died without issue, to the next youngest brother ; and if no brother then among the sisters as parceners. There was also an entry of descent and admission of the youngest son of an uncle, and of the youngest sons respectively of two sisters, heirs of the person last seised. The plaintiff was the youngest son of the youngest brother of E. M. the purchaser. Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the custom did not extend to so remote a collateral relation as the plaintiff: Per Coleridge, J., Wightman, J., Cresswell, J., Crompton, J. (Cockburn, C. J., Erie, J., and Williams, J., dis- sentientibus). Also that the Inheritance Act, 3 & 4 Wm .4, c. 106, s. 2, did not affect the custom of descent in the manor.

[S. C. 27 L. J. Ex. 125 ; 4 Jur. (N. S.) 139. Referred to, Ee Smart; Smart v. Smart, 1881, 18 Ch. D. 170; In re Greemvood ; Goodhart v. Woodhead, [1902] 2 Ch. 198; In re Chenoweth ; Ward v. Dwelley, [1902] 2 Ch. 492.]

In this case (reported, 1 H. & N. 282), the Court of Exchequer having given judgment for the defendant, the plaintiff took proceedings in error thereon, and the case was argued^[1] in Hilary Vacation, 1857.

Mundell, for the plaintiff. There are three grounds upon which the plaintiff is entitled to retain the verdict entered for him. First, he is heir according to the custom to the purchaser, upon the death of the person last entitled, within the meaning of the Inheritance Act, 3 & 4 Wm. 4, c. 106, s. 2. Secondly, the plaintiff is entitled to recover as customary heir upon failure of issue in the person last entitled. Thirdly, there was evidence of the existence of a custom, whereby the youngest nearest male kinsman, ad infinitum, was entitled to inherit. The first point depends on the con- struction of the 2nd section of the Inheritance Act, [654] 3 & 4 Wm. 4, c. 106. Edward Muggleton, who died in 1812, intestate, was the purchaser for value of the land in question, and from him to Brian Barnett (the son of the defendant and the person upon whose death these proceedings originated) there was a series of descents or heirships : the question therefore arises, what effect, if any, has the statute in designating the propositus in the table of descent, upon failure of heirs in the descending line from the person last seized 1 ? The words of the second section are, "that in every case the descent shall be traced from the purchaser ; " and by the interpretation clause the words "descent " and " purchaser " have an artificial meaning: "descent" means the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be child or issue ; and " purchaser " means the person who last acquired the land otherwise than by descent or escheat, and certain other modes there specified, not material to this question. The latter part of the section points out who shall be deemed presumptively to be the purchaser, viz., that in every case the person last entitled shall be deemed such, until the contrary, or rather that he took as heir, is shewn ; and so toties quoties. Before the passing of this Act, descent was always traced from the person last seised. The maxim " seisina facit stipitem " (which seems to have been introduced into the English law as early

2H. &N. 655. MUGGLETON V. BARNETT 271

as the time of Bracton), had universal application in designating the propositus. Prima facie the heirs general of the person last seised were entitled to inherit, upon the assumption that all were of the blood of the purchaser ; but if it could be shewn affirmatively by evidence that any branch of ancestors, either in the male or female line, were not of the blood of the purchaser, then such line was for ever excluded from the succession. [655] There were difficulties in proving a seisin either in law or in fact ; and the object of the legislature was to establish one uniform rule, whereby the blood of the purchaser should in all cases be preferred, by ascertaining upon a definite principle who the purchaser was, and, in so doing, the maxim " seisina facit stipitem" has been virtually abolished : Sugden's Vend. & Purch. p. 555, llth edit. ; Shelford Real Prop. Stat. 408; Stephen's Comm. vol. 1. p. 397, 4th ed. Indeed, the' last named author enunciates the following as the first canon of descent : " In every case the descent shall be traced from the purchaser," and this by way of substitution for the first canon of Blackstone : Black. Com. vol. 2, p. 208. Is, then, the direction of the statute obligatory ? If so, supposing this was a descent at common law of lands in socage, there could be no doubt that the heir to be sought would be the heir of Edward Muggleton, the purchaser, who died in 1812: and if that be not so, and if under the fifth section of the Act, the heir of Bryan Barnett, the person last seized is to be sought for, then the defendant, being his father, is entitled as the heir of his son. [Hayes, Serjt., stated that he did not claim for the defendant as heir in any case, but that the descendants of the elder brother of the plaintiffs father were the heirs.] Assuming this to be so as regards lands in socage, is there any difference with respect to copyhold lands of Borough English tenure] By the Inheritance Act, "descent" means the title to inherit lands. "Title," in its largest sense, is thus defined by Lord Coke (Co. Litt. 345 b.), "Titulus est justa causa possidendi id quod nostrum est." Johnson, in his Dictionary, defines it as "a claim of right." "To inherit " is to take as heir ; and, by the interpretation clause of the Act, the term " land " extends to all hereditaments, whether corporeal or incorporeal, [656] and whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind or borough English, or any other custom. The rule, therefore, is equally applicable to copyhold lands, held either in borough English or under any other custom. Then, upon the custom as found, the plaintiff is the customary heir of the purchaser, being the youngest son of his youngest brother; the Act having substituted the purchaser, as the propositus, for the person last seised. But it will be argued that the custom is to be construed strictly ; and the custom says, " heir of the person last seized." The same objection was taken, arguendo, in Clements v. Scudamore (IP. Wms. 63), and disposed of by Holt, C. J. : moreover, seisin was never an integral part of the custom, but was introduced into copyholds by analogy to the general law : Reeve's Hist, of English Law, vol. 3, pp. 158, 312. The only cases on this section of the statute are nisi prius decisions. In Doe d. Blackburn v. Blackburn (1 Moo. & Rob. 547), which was tried at York, in 1836, before Parke, B., lands had been purchased by a bastard ; and his son, upon the father's death, entered as heir and died without issue : the question was whether the lessor of the plaintiff, who was his heir ex parte materna, was entitled to recover against the person in possession, or whether the descent, being traced from the purchaser, the father, who was illegitimate, there was an escheat. The learned Judge said, that there was no getting over the language of the 2nd section of the Inheritance Act, though the case could hardly have been contemplated by the framers of that Act. The reporter indeed says, in a note (p. 549), that there would have been an escheat at common law : that may be so, but this case if approved of by Lord St. Leonards, Sug. Vend. & Purch. p. 551, llth ed. The [657] difficulty which arises in this case, upon the construction and application of the 2nd section of the Inheritance Act, has its origin in an alteration of the bill in its passage through the legislature. As the bill originally stood, descent was to be traced in all cases from the person last entitled whether seised or not : Sug. Vend. & Purch. p. 555, llth ed. ; but the 2nd section was introduced by way of substitution, in the House of Lords. One of its consequences is to create a difficulty as to the rights of the descendants of heirs of parceners who succeeded as heirs to such parceners : did such heirs take the parcener's entire share or only an aliquot part of it with the other parceners as heirs of the purchaser ? Before the case of Cooper v. France (19 L. J. Chan. 313), the latter opinion prevailed among conveyancers: Bythw. and Jarm. Conv. by Sweet, vol. 1, pp. 139, 140; but in Cooper v. France, which was a suit for a partition between the sons of two parceners, who were heirs of their father, Shadwell, V. C., held that the sons took moieties, each taking their mother's shares respectively. This decision proceeded chiefly on the ground that in that case there was no necessity, as contemplated by the latter part of the section, to carry back the pedigree to the grandfather, the purchaser. This case has been since followed ; but, even if good law, it is distinguishable from the present and has no bearing upon the argument, since here the circumstances require the pedigree to be carried back to the purchaser, or rather to his father, as the nearest common ancestor. Cooper v. France relates to the rights of the descendants of those last entitled, the present case to the rights of collaterals of a given common ancestor. Paterson v. Mills (19 L. J. Chan. 310), may be relied on by the other side, but that case depended upon events happening before the 3 & 4 Wm. 4, c. 106, was in operation. That statute had for its object the establishing one uniform rule of descent, [658] and that can only be done by making the purchaser, when ascertained as directed by the latter part of the 2nd section, the propositus in every case without exception.

Secondly. The plaintiff is entitled to recover as customary heir upon failure of descendants of the persons last entitled ; because, whenever upon failure of issue in any given line it becomes necessary to resort to a common ancestor, however remote, the heir of the common ancestor must of necessity be also the next kinsman, and so heir to the person upon whose death the descent was cast. [Cockburn, C. J. And that is a convertible proposition.] The only exception is that of the half blood, which does not apply here. In this case, in order to find the nearest collateral kinsman, it is necessary to ascend to the father of Edward Muggleton, who died intestate in 1812. He is the first common ancestor, and in the descending line there is Peter Muggleton, the youngest brother of the intestate and father of the plaintiff, who is his youngest son. The truth or falsity of this general proposition depends upon the following passage in Blackstone's Comm. vol. 2, p. 223, and the authorities there cited : "This, then, is the great and general principle upon which the law of collateral inheritances depends ; that upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser ; or that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have originally descended ; according to the rule laid down in the Year Books (M. 12 Edw. 4, 14), Fitzherbert (Abr. tit. Descent, 2), Brook (Abr. tit. Descent, 38), and Hale (H. C. L. 243), ' that he who would have been heir to the father of the deceased ' (and of course to the mother or any other real or supposed purchasing ancestor), ' shall also be heir to the son ; ' a maxim that will hold universally, except in the [659] case of a brother or sister of the half blood, which exception (as we shall see hereafter) depends upon very special grounds." Now if this proposition, as applied to descents at common law, is universally true, the principle involved is applicable mutatis mutandis to descents in the nature of borough English. Clements v. Scudamore (IP. Wms. 63), is an authority in point. There, when it was ascertained that the youngest son took as heir, the right of the daughter by representation was held to attach by analogy. There is no doubt that if Edward Muggleton had died without issue, the plaintiff would have taken as heir to his grandfather, and also as heir to his uncle Edward Muggleton, because the custom is found to this extent, that the youngest son of the youngest brother inherits. Does it then make any difference that he left issue ? If he had left only a son, who died seised, upon his death the plaintiff would have been entitled as heir. If, then, because the heirship is carried two steps further in the descending line, upon resorting to the same common ancestor a different rule is to prevail, this anomaly will follow, that upon matter subsequent, and so resorting back, the elder house and not the younger prevails; and while the estate having either actually or by fiction of law been assumed to pass through the grandfather, in the one case the customary heir would take, and in the other the common law heir, which is an absurdity, and in contradiction of the principle applicable to the law of inheritances generally, and also by purity of reasoning to the principle applicable to inheritances in borough English. On this point he referred to Doe d. Parker v. Thomas (3 Man. & Gr. 815).

Thirdly. There was evidence of the existence of a custom whereby the youngest nearest male kinsman, ad infinitura, was entitled to inherit. On this point the argu-

2H. &N. 660. MUGGLETON V. BARNETT 273

meut was in [660] substance the same as that in the Court below. In addition to the authorities there cited, reference was made to Reeve's Hist. Eng. Law, vol. 3, pp. 158, 312 : Lambard's Archaionomia, fol. 167, s. 36 ; Godfrey v. Bullock (I Rol. Abr. 623, pi. 3).

Hayes, Serjt., for the defendant. First, the 2nd section of the Inheritance Act was never intended to alter the law in cases which were plain before it passed, but only to lay down rules for tracing the descent in cases where any doubt existed : Cooper v. France (19 L. J. Chan. 313). The rule "that in every case the descent shall be traced from the purchaser," is merely affirmative of the common law. No collateral heir could ever inherit unless he claimed through the common ancestor. In Co. Litt. 1 2 a. it is said : " And note it is an old and true maxim in law, that none shall inherit any lands as heir, but only the blood of the first purchaser, for refert a quo fiat perquisitum." With respect to the case of Doe d. Blackburn v. Blackburn (1 Moo. & Rob. 547), it is enough to say that the same consequence would have followed under the old law of inheritance. It results from the rule thus stated by Littleton, sect. 4, " And in case where the son purchaseth land in fee simple, and dies without issue, they of his blood on the father's side shall inherit as heirs to him before any of the blood on the mother's side : but if he hath no heir on the part of his father, then the land shall descend to the heirs on the part of the mother." ..." And, if he hath no heir on the part of the mother, then the lord of whom the land is holden, shall have the land by escheate. The Inheritance Act simply adopts the great and general principle upon which the law of collateral inheritances depends ; that, upon failure of issue in the last proprietor, the estate shall descend to the [661] blood of the first purchaser ; or that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have originally descended : " 2 Black. Com. 223. The plaintiff's construction of the Act would alter the tenure of the copyhold. But there is nothing in the Act to affect a custom that the youngest son or youngest brother of the person last seised shall inherit. If, in tracing the descent, a father is to be substituted for the person last seised, the brother of the latter would be passed over.

He then argued that the second point was involved in the first and third, and that there was no evidence of a custom that so remote a collateral relation as the plaintiff should inherit. The argument on the last point was in substance the same as in the Court below. The following additional authorities were cited : Littleton, sect. 211 ; Scriven on Copyholds, 29, 4th ed. ; Watkins on Copyholds, vol. 2, p. 60.

Mundell replied.

Cur. adv. vult.

The learned Judges having differed in opinion, now delivered their judgments seriatim.

Crompton, J.

CROMPTON, J. I entirely concur in the judgment of my brother Wightman, which I have just read.^[2] The authorities seem to me to establish the rule, that proof of a custom of descent, contrary to the course of the common law, prevailing in a nearer degree of consanguinity is no proof of such custom extending to a more remote degree. I am unwilling to disturb a rule of law which, as I understand the authorities, must, I think, be taken to have regulated the descent of copyhold property for more than half a century.

[662] I cannot think that the Inheritance Act, which gives a new mode of tracing a descent, is at all applicable to the question as to the extent of the custom of a manor. Assuming that the custom extended, before that Act, only to parties within a certain degree of consanguinity with the deceased ancestor, it seems to me that the question still is whether the parties are within the given degree of consanguinity. If the custom is found applicable by reason of the parties being within that degree, the customary mode of descent is to be applied, and the descent traced according to the directions of the Inheritance Act, tracing each step according to the custom. If the parties are not within the degree within which the custom is applicable, the directions of the Inheritance Act are to be followed in tracing the descent, and that descent is to be traced according to the rule of the common law. The Inheritance Act points out a new mode of tracing the descent, but does not seem to me to have the effect of extending the operation of a custom of descent in a manor, or of making any alteration

274 MUGGLETON V. BARNETT 2 H. & N. 663.

as to the cases in which such custom is to be applicable. I think, therefore, that the judgment of the Court below was correct and ought to be affirmed.

Williams, J.

WILLIAMS, J. In this case the Judge before whom, without a jury, the trial took place, came to the conclusion in point of fact, that there was a manorial custom of descent, in the nature of borough English, extending to all collateral heirs, and the only question is, whether there was any evidence of this. I am of opinion that there was some evidence. Whether my learned brother came to a right conclusion, on consideration of that evidence, it is not necessary to give an opinion. But I do not mean, by saying this, to intimate any doubt of it.

Unless there be some recognised rule of law, or some binding authority to the contrary, I can find no reason why [663] the instance on the court rolls of the prevail- ance of this custom of descents as far as cousins german should not furnish some evidence from which it may be inferred that the custom extended to all collaterals ; which, as it seems to me, might well be deemed a more reasonable, and therefore more probable, lex loci than that it should be extended to cousins german and no further.

It must be observed that in this case no customary was in evidence, nor any other direct proof of the custom given. Its existence and extent are only to be inferred from the entries on the court rolls. Consequently the rule of law, that customs are to be construed strictly, appears inapplicable : for the contention on the part of the plaintiff is not that the custom, which the learned Judge has found to exist, should be at all extended in its application, but that there was some evidence for his con- sideration of its existence to the requisite extent.

It was contended, however, on the part of the defendants, that a custom of this nature cannot be properly said to exist beyond the instances in which it can be shewn to have actually prevailed and been put in use. And certainly Lord Coke is reported to have so laid down the rule in Ratdiffe and Chaplin's case (4 Leon. 242), and this dictum was cited and relied on in the judgment of the Court of King's Bench in Denn v. Spray (1 T. R. 466, 474) ; but the more modern authorities are, I think, quite irreconcilable with it. Thus, it was held in the subsequent case of Roe v. Parker (5 T. R. 26), that an ancient presentment by a homage of the customs of a manor was sufficient evidence as to a descent, though no instance was adduced of any person having taken under it. And Lord Kenyon said, that if the decision of Denn v. Spray went as far as to determine that such a document is not admissible [664] in evidence, unless instances in fact be previously proved to warrant the introduction of it, he must beg leave to dissent from it. And Grose, J., observed, as to the dictum of Lord Coke in Leonard, that it must be remembered there are considerable inaccuracies in the report of that case, and he thought Lord Coke meant to comment on the credit which was due to the evidence rather than its admissibility. This was followed by Doe v. Sisson (12 East, 62). There the custom proved by particular instances was that the eldest sister, and if she were dead, the son of such eldest sister, succeeded. But there was no instance of any descent beyond that; and the question in the cause was between the grandson of an eldest sister and the sons of two younger sisters. But one witness stated the reputation to be, that the eldest sister should take, and, if all were dead, the descendants of the eldest sister. The Court of Queen's Bench held in that case, that upon this evidence it was properly left to the jury to determine whether the grandson of the eldest sister was entitled to the whole, although there was no proof of such extended custom having been put in use.

The present case in itself affords an example of the difficulty of applying the doctrine that the custom shall only prevail as to descents of which instances can be proved. For if the contest had been whether the custom extended to uncles, it must have been held that, by reason of the want of an instance, there was no evidence of the custom extending so far as them, notwithstanding the instance of its descending further in the case of their sons. To carry this illustration a step further, suppose that in the present case there had been on the rolls a further instance of this kind of descent in the case of the children of a first cousin, would it not be more reasonable to infer that the custom extended to collaterals generally, than to suppose [665] that any lex loci could have been instituted so whimsical as to extend to first cousins once removed, and yet exclude uncles and first and second cousins 1

It may be further observed that the case of Denn v. Spray was decided not only on the ground that the custom was not shewn to extend to collaterals, but also on the

2 H . & N. 666. MUGGLETON V. BARNETT 275

peculiar wording of the custom as contained in the customary of the manor, viz., "Si aliquis tenens hujus manerii obierit," &c., which necessarily excluded nephews and nieces, inasmuch as they must make out their claim or pedigree through their father or mother, who never was a tenant of the manor, and, consequently, could not have died seised, and on whom therefore the custom as to the course of descent never attached. For this reason, as well as those given by my brother Bramwell in his judgment in the Court of Exchequer, we may well hold that Denn v. Spray was rightly decided, without overruling the decision of the learned Judge at the trial of the present case.

For these reasons I am of opinion that the judgment of the Court of Exchequer should be reversed.

Erle, J.

ERLE, J. In this case the question, in substance, is, whether there was evidence from which a jury could infer that, by the custom of the manor, the youngest in each degree of collateral male heirs should take before the elder. The Judge, acting for a jury, did make that inference.

The plaintiff was the youngest son of the youngest brother of the great grandfather -of the person last seised, related therefore to him in the sixth degree, according to the civil law.

Among lineals the proof was clear, that the youngest male took before the elder universally ; among collaterals, as far as the entries extended, the same custom pre- vailed, that is, it was clearly proved in the degree of brother, and [666] beyond that degree there was no entry of an elder taking before a younger in the same degree ; and there was an entry shewing the custom to extend to the fourth degree, as the youngest son of an uncle took before the elder. This appears to me to be some evidence from which a jury might infer that the custom existed.

For the plaintiff it was contended, that a custom may be presumed to have originated in a purpose, and that a purpose comprising collaterals to the fourth degree would probably comprise those in the fifth and more remote degrees. That although the presumption is in favour of the common law, and the party relying on a custom has to bear the burthen of proof, still the effect of facts from which an inference of a custom is to be made is the same in reasoning as the effect of other facts offered as a ground from which another inference is to be made, and evidence shewing that a custom to prefer the younger prevailed universally, both among lineals and among collaterals, as far as the entries extended, would raise the question why the preference given to the youngest in so many degrees should be withheld from the small number of degrees that remain, and whether the absence of a specific entry was not the result of the accident, that so remote an heir bad not before taken.

The defendants relied on a rule, supposed to be laid down in Denn v. Spray (1 T. R. 466), that a custom can be proved only by instances of usage entered on the Court Rolls. For this rule the Court relied on the language of Lord Coke in Radclifle and Chaplin's case (4 Leon. 242), that the party maintaining the custom must shew precedents on the Court Rolls to prove the usage, and that it had been put in ure ; and that although it had been deemed and reputed to be the true custom, yet the Court could not give credit to the [667] proof by witnesses. But this rule is not supported by the decision cited for it. The point for decision in Radcliffe and Chaplin's case was, whether a new trial should be granted on the ground of the verdict being against the evidence, and as there were conflicting entries, the remarks which the Court adopted in Denn v. Spray were extra-judicial, pertinent only to an observation of the jury, that they knew the custom by reputation. Moreover, it is clear that the rule so adopted in Denn v. Spray was overruled in Doe v. Sisson (12 East, 62), where evidence of reputation was held sufficient to support a finding by the jury, that the custom extended to more distant degrees than could be found entered on the Court Rolls, and this decision in Doe v. Sisson was confirmed and acted on by Lord Cotti ogham in Locke v. Colman (1 Myl. & Cr. 423).

Upon this review, it seems to me that there was some evidence of the custom, and if so, the finding of the Judge is conclusive, and the judgment below ought to be reversed.

Cresswell, J.

CRESSWELL, J. In this case it appeared that there was no instance of a descent to the youngest son of the youngest great uncle, nor any reputation that such was the customary course of descent. Instances of entries short of that were proved, extending as far as the youngest son of the youngest uncle ; and the question to be

276 MUGGLETON V. BARNETT 2 H. & N. 668.

decided is whether such instances were evidence of the existence of the more extensive custom relied upon by the plaintiff in this case. I am of opinion that they were not.

I take the meaning of the word " custom " in this case to be " practice or course of acting," and, if that be so, then a custom can only be proved by evidence of such practice or course of acting pursued for a certain length of time ; and this agrees with what is said by Lord Coke, [668] Co. Litt. 110 b. "of every custom there are two essential parts, viz., "time and usage." If custom means as I have suggested, "course of acting," unless such acting be proved the custom cannot be established. And if it be admitted that there is no evidence of any instance in which an estate has descended to the youngest son of the youngest great uncle, in my opinion there is no evidence to sustain the alleged custom.

Then let us consider whether there is evidence of such descent. Are the facts proved, viz.. descent to youngest son of youngest brother, to youngest son of youngest uncle, and to youngest sons respectively of two co-parceners, facts from which we are at liberty to infer that estates have in this manor descended to the youngest son of the youngest great uncle 1 The fact is not proved by any direct evidence ; is it to be inferred or presumed from any one or more other facts which were directly proved 1 A presumption, as has been well said by Mr. Starkie (Evid. vol. 3, p. 927), "may be defined to be an inference as to the existence of one fact from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, a previous experience of the connexion between the known and inferred facts is essential, of such a nature that as soon as the evidence of the one is established, admitted, or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning on the subject." What inference is there in this case of any connexion between the facts proved and the fact to be inferred? But a distinction has been recognised between a presumption in the proper sense of the word, and presumptive or circumstantial evidence. Was there then in this case circumstantial evidence of lands having descended as contended for ; or, in other words, were there such facts proved as to descent, that the [669] existence of the other fact in controversy may be rationally assumed? In Doe v. Hilden (2 B. & Aid. 791) Lord Tenterden on this subject says: "One of the general grounds of a presumption is the existence of a state of things which may most reasonably be accounted for by supposing the matter presumed." Applying this dictum to the ordinary case of a charge of burglary and theft : evidence is given that a house was broken and certain goods stolen : the party accused is proved to have been near the place and to have been shortly afterwards in possession of the stolen property. That state of things is most reasonably accounted for by presuming that he committed the burglary and stole them. But how is the special course of descent proved between nearer collaterals most reasonably to be accounted for by presuming a similar custom between the more remote 1 ? The converse would fall within Lord Tenterden's rule. The descent of the youngest son of a youngest son may be most reasonably accounted for by presuming a course of descent to the youngest son. It seems to me then, that the facts directly proved in this case did not warrant the presumption, or, in other words, were not evidence of the existence of the other fact necessary to be established in order to make out the plaintiff's right to recover. This reasoning is supported by the decision of the Court of King's Bench in Denn v. Spray (1 T. R. 466), which, as far as I know, has never been overruled, and which must be overruled if judgment be given for the plaintiff in error.

It has been suggested that if Denn v. Spray be taken as a decision that a custom can only be proved by evidence of its being acted upon, it was overruled in Doe v. Sisson (12 East, 62). In that case an estate was claimed by the grandson of an eldest sister of the person last seised. Entries on the [670] court rolls proved that copyholds descended to an eldest sister to the exclusion of younger sisters, and the son of an eldest sister inherited to the exclusion of the children of younger sisters. And evidence was given that the reputation of the custom was, that the more remote descendants of the eldest sister took. This evidence was objected to ; but the Court held that it was rightly admitted. I quite agree in that opinion ; but what was the reputation? That a certain custom, or as I explain it, course of acting existed in the manor. The reputation was therefore evidence, perhaps not very cogent, but still evidence of the fact of lands having descended in that manner. It was therefore evidence of an act done, and in perfect accordance with Denn v. Spray. Having therefore a decision

2H. &N. 671. MUGGLETON V. BABNETT 277

pronounced nearly a century since, and never overruled, as a guide, and thinking it founded on sound reasoning as to the nature of the evidence necessary to prove a custom, I am contented to be now bound by it, and hold that the judgment of the Court below ought to be affirmed.

The statute 3 & 4 Win. 4, c. 106, s. 2, has no effect on this question. Bryan Barnett died in 1854 without issue : the question is, who is his customary heir. To ascertain that, you must trace his pedigree through the purchaser. Edward Muggleton, his great grandfather, was the purchaser. Edward Muggleton had a youngest brother, Peter ; and he had other brothers who had issue. The plaintiff claimed as youngest son of Peter.

Now the custom proved was, that the estate should go to the youngest son of the youngest brother of the person last seised. The plaintiff was not the youngest son of the youngest brother of the person last seised, but of the great grandfather of the person last seised ; and the statute prescribing the mode of tracing descent does not alter or vary the custom. The eldest son of the eldest son of [671] the great grand- father may be the common law heir of the person last seised, ascertained in the manner pointed out by the legislature, but that will not make the youngest son of the youngest son of the great grandfather customary heir, unless the existence of a custom to that extent is proved. If, indeed, it could be made out that by operation of the statute 3 & 4 Wm. 4, c. 106, the youngest son of the great grandfather was the youngest son of his great grandson, the person last seised, there might be something in the argument, but that is absurd.

Wightman, J.

WIGHTMAN, J. This was an ejectment to recover certain copyhold tenements in the manor of Lyddington, in the county of Rutland. The plaintiff was the youngest son of the youngest brother of the great grandfather of the person last seised, and claimed as heir according to the custom of the manor.

The custom of descent in the manor was proved to be, that the land descended to the youngest son of the person last seised, if he had more than one (in inh'nitum), and if such youngest son died without issue, then to the next youngest son ; and if none, then to daughters as parceners ; and if no issue, then to the youngest brother ; and if the youngest brother were dead, then to the youngest son of such youngest brother ; and if no issue of such youngest brother, then to the next youngest brother ; and if no brother, then to his sisters as parceners.

In addition to proof of the custom of descent as above, there was evidence to shew that it had been extended to the youngest son of the uncle of the person last seised, which would include the uncle himself ; and to the youngest son of a sister of the person last seised.

There was no evidence whatever, not even reputation, to shew that the custom extended further, unless, as was [672] contended for the plaintiff, proof that it extended to the collateral relatives before mentioned, would be evidence to shew that it extended to all collaterals however remote, and, at all events, to the plaintiffs degree of consanguinity, and that the jury might infer from the extent to which it was proved the custom had gone, that it extended further. I can find no authority whatever to warrant such a proposition ; but, on the contrary, there are express decisions against it.

The custom of descent in this manor differs from the course of descent by the common law, and must therefore be construed strictly and not extended beyond the usage ; and accordingly it was held in Ratdiffe and Chaplin's case (reported in 4 Leon. 242, and in Godbolt, 166), that a custom that eldest sisters should take, did not extend to eldest aunts or nieces ; nor a custom that the youngest son should take, to the youngest brother.

In the case of Doe v. Mason (3 Wils. 63), the question was whether the custom of a manor that copyholds descended to the youngest son, and if no son to the youngest brother, extended to the youngest nephew; and upon proof of one instance in 1657, of the youngest nephew being admitted as heir, the Court refused to disturb the verdict which was in favour of the extended custom, the evidence being conflicting. In that case, however, there was some direct evidence of the extended custom by the admission of the youngest nephew in 1657.

But the case of Denn v. Spray (I T. R. 466) is a direct authority against the plaintiff in the present case. It was there held by the Court of King's Bench, in a considered judgment, that proof that, by the custom of a manor, the copyhold lands descended

278 MUGGLETON V. BARNETT 2 H. & N. 673.

to the eldest daughter, and if no daughter then to the eldest sister, was not evidence [673] to extend the custom to the eldest niece or other collateral. It was said in the judgment, that custom being of the very essence of copyhold, if the custom be silent the common law must regulate the course of descent.

In Doe v. Sisson (12 East, 62) it was held that reputation was evidence to go to the jury of an extended custom of descent to collaterals, though no evidence was given of actual instances in which such extended custom had been acted upon ; and in the present case, if there had been evidence of reputation that the custom of descent in the manor of Lyddington extended to collateral relations in every degree or to the collateral relations of a great grandfather of the person last seised, the verdict for the plaintiff might have been supported ; but I do not think that evidence of the admission of collaterals in certain degrees of consanguinity is sufficient to warrant the finding of a custom of descent to collaterals in more remote degrees, without evidence of instances of admissions or of reputation in accordance with such extended custom.

The statute of 3 & 4 Wm. 4, c. 106, was referred to upon the argument, but it does not appear to me to have any bearing upon this case. The question here is, to> what degrees of consanguinity the custom of descent in the manor extends ; there is; no difficulty in tracing the descent, and the object of the statute was not to alter or extend the customs of manors as to descent to collateral relations, or to give a title by descent to persons standing in more remote degrees of consanguinity to the person last seised than the custom of the manor would warrant.

Upon the whole I am of opinion that the plaintiff is not entitled to recover.

Coleridge, J.

COLERIDGE, J. Having been allowed to read the judg-[674]-ments of my brother Wightman and my brother Cresswell, I might content myself with saying that I agree generally in the view which they have taken of both the questions raised in this case ; but having come to this conclusion after a good deal of hesitation, I am desirous of stating the principle of my agreement, and guarding myself against being supposed to go further than I really do.

Any rule of inheritance which is different from that prescribed by the common law, and stands on special custom only, must of course be limited by that custom. It has no presumption in its favour, but at the same time its proof rests on the same general principles of evidence which apply to the proof of any other right dependent on custom. It may be made out by reputation, accompanied by instances of its being put in ure, or by either of the two apart from the other. I speak, of course, of what would be receivable evidence to a jury in support of such a claim ; for although every custom presupposes a user and all reputation must be built upon it, yet it is possible that the evidence of user may be wanting by the death of witnesses, or the destruction of the manor rolls, or other circumstances, and yet the reputation built on them may survive ; and so, on the other hand, it is possible that instances may be producible in which the special mode of inheritance has been allowed, and yet there may be no customary, or presentment by the tenants, or other direct evidence of reputation,, before the jury. It is quite true that mere reputation will not make a course of descent, if the absence of evidence of any instances be taken to be equivalent to there' never having been any ; in such case, but only then, the custom, of course and self- evidently, must be taken never to have existed. It may be very probable also that a jury would not be advised to find in favour of a custom on evidence of reputation: alone, unless the absence of the other branch of evidence were satisfactorily accounted! for. In this sense, and to this [675] extent, I quite agree with what, according to the report in Leonard, Lord Coke is stated to have said in Ratdiffe atui Chaplin's case, and so I think it ought to be understood ; and I do not think that in Denn v. Sprcey (1 T. K. 466) the judgment of the Court is inconsistent with this.

Where, in support of a customary mode of inheritance, recourse is had both to reputation and instances in accordance, in the case of a custom, which, like that now before us, extends to many particulars, instances, I conceive, must be receivable in support of reputation, even though they cannot be adduced as to all the particulars j and the proof will be more or less cogent according as the particulars adduced do in reason conduce more or less to the belief of the whole custom. In such a case, it would be impossible to reject the evidence of such instance as tendered, or to strike the whole proof out of the case because it did not cover the one particular which was in question in the cause. It could not be denied that the reputation of a local law of descent was made more probable, as to the whole, by proof of its having been acted

2H. & N. 676. MUGGLETON V. BABNETT 279

on in the greater number of the particulars comprised in it, merely because there was no proof adduced of its having been acted on in one particular. The addition of that one would have made a difference in degree, not in kind or principle.

Where, as in the present case, instances alone are relied on, the custom in all its particulars is necessarily to be ascertained from them ; and so far as the existence of it in any one or more steps leads not merely to a conjecture, but to a reasonable belief, that it must exist in another, the proof of the former will be evidence of the latter, although the Court Rolls afford no instance of it. Thus, if it be shewn that the youngest nephew, born of the youngest [676] brother, inherits under certain circumstances in preference to his own elder brothers and to all the nephews by any elder brother of the person last entitled, it is reasonable to infer that the custom prevails as to the youngest brother himself under the same circumstances, though it may so happen that the instance may not appear in the rolls, or be capable of proof by other evidence. For if the youngest brother could not have inherited had he been alive, it is unreasonable to suppose that his youngest son should take, he being dead. Instances, therefore, in more remote degrees may well be evidence of the custom in nearer degrees. It would be mere caprice to depart from the common law in the remoter and adhere to it in the nearer, and there is a prescription against such caprice, because it is of the essence of a good custom to be reasonable. But the converse does not hold : from an instance in the nearer degree there is no ground to infer the custom in one more remote ; it is at least as reasonable to suppose that the departure from the common law by special custom has been limited to such nearer degree, and that the inheritance has thenceforward followed the general rule, as that it has gone further, and if so, it is reduced to conjecture, which is not a ground on which rights are to be determined. The same observation would apply as to lineals and collaterals. This principle has been recognised in many cases which have been cited, and to which I need only refer generally ; and the present case appears to me clearly to fall within it. I see no reason, from the instances specified, to infer the existence of the custom as to the much more remote collateral degree of relationship in which the plaintiff stands to the deceased, who was last entitled.

I think, therefore, that the judgment of the Court below should be affirmed, and I the more readily come' to this [677] conclusion because I believe it to be in agree- ment with the general understanding and practice of the profession, and the decision of Denn v. Spray.

Cockburn, C.J.

COCKBURN, C. J. I concur with those of my learned brothers who are of opinion that the judgment of the Court of Exchequer in this case ought to be reversed.

It appears to me that from the facts proved in this case the inference necessarily arises that the custom of this manor, that as amongst those related in equal degree to the person last seised the youngest should inherit in place of the eldest, extends to the case of the plaintiff, unless, indeed, there is some positive and inflexible rule of law which prohibits us from giving to the evidence all the effect to which it would other- wise be entitled. I am of opinion that there is no such positive or inflexible rule, and I therefore entirely concur in the view taken by the learned Judge who, by the consent of the parties, acted at the trial of this case as Judge of fact as well as of law, that upon the facts proved, it was sufficiently established that in the absence of lineal heirs, or of collateral heirs in a nearer degree, the customary descent in this manor extended to the case of the youngest son of the youngest grand uncle, and consequently that the plaintiff', who stood in that relationship to the person who died last seised, was entitled to this estate as heir according to the custom.

From the evidence of the court rolls of this manor, it appeared not only that in the course of lineal descent the youngest son of a deceased tenant inherited in preference to an elder ; but that where, in default of issue, it became necessary to resort to collateral heirs, the youngest brother succeeded in preference to the eldest brother, and, if the youngest brother were dead without issue, the next youngest [678] brother ; and that even if it became necessary to ascend a generation higher, the youngest son of a youngest uncle (and therefore by implication a youngest uncle) was entitled to inherit in preference to elder male relations in the same degree. From these numerous instances of preference given to the youngest of the male relations in the same degree, it appears to me, looking at it as a mere question of fact upon the evidence, that the inference legitimately arises that the customary rule of descent in the manor is that the inheritance shall always descend to the youngest male relative

280 MUGGLETON V. BARNETT 2 H. & N. 679.

in the nearest degree, where, by the common law course of descent, it would go to the eldest.

It is said, however, that there is a rule of law which prevents us from drawing any inference as to the custom of descent in a manor, whereby to extend it beyond the instances of admission actually proved to have taken place. It becomes necessary, therefore, to consider whether the authorities relied upon to preclude such inference as would otherwise legitimately arise from the facts are sufficient to make good the position contended for. The cases principally relied on are Bayly v. Stevens (Cro. Jac. 198), lieve v. Malster (Cro. Car. 410), Ratdiffe v. Chaplin (4 Leon. 242), and Demi v. Spray (1 T. R. 466). As regards the two cases in Croke, the custom had been specifically found to be that the youngest son of the person last seised should inherit in the place of the eldest, without any mention whatever of the case of collaterals ; and all that the Court can properly be taken to have held was that a custom found with reference to lineal descendants only could not by legal intendmerit, without further evidence, be extended to collaterals. In the case of Ratdiffe v. Chaplin there were conflicting entries on the court rolls of the manor as to whether [679] the eldest of several female heirs should alone inherit, or all should inherit as co-parceners ; not- withstanding which, the jury found in favour of the eldest sister upon their own knowledge of the usage of the country as existing in divers places within the same hundred. The Court very properly held that this species of vague and extrinsic reputation would not do : and they said, that without evidence of precedents on the Court Rolls to prove the custom and that it had been put in ure, credit could not be given to the mere statement of witnesses as to it. The whole effect then of the decision is, (so far as it relates to the point in question before the Court), that the custom of a manor is to be proved by the Court Rolls, and not by parol testimony or hearsay. It is however further incidentally stated in the case, that it was agreed by the Court that if the custom had been that the eldest sister should inherit, yet by that custom the eldest aunt or the eldest niece should not inherit j nor the youngest uncle where the custom was that the youngest son should have the land. It may be observed that these dicta are altogether extra-judicial, the only question in the case before the Court being whether extrinsic evidence as to the custom was admissible ; but taking them to be authority so far as they go, the eftect of them is only, like the decisions in Bayly v. Stevens and Reve v. Malster, to establish that a custom proved as to a single generation, and in the lineal descent, ought not, without more, to be extended to collateral branches in a more remote generation. The case of Denn v. Spray went, however, a step further. It was there held that where it was shewn that a custom that as among females the eldest only should inherit extended not only to daughters but to sisters, it could not thence be inferred that the custom extended to the case of an eldest niece (of which there was no actual instance) ; [680] although in a customary of the manor, which the Court recognized as legal evidence, it was expressly declared that no tenements within the manor were divisible, whether among heirs male or female. The Court admits the authority of Ratdiffe v. Ckaplin to the fullest extent, treats the customary of the manor as entitled to no weight, adopts the language of Lord Coke in its most general sense, without referring it to the subject- matter to which it was in fact addressed, and lays it down that a custom cannot be extended further than there are actual instances in Court Rolls to establish it. The judg- ment in this case appears to me, I am bound to say, unsatisfactory and inconclusive, and to have proceeded on a misapprehension of the scope and effect of the judgment in Ratdiffe v. Cliaplin. Its authority appears to have been very much shaken by the subse- quent case of Doe v. Sisson in 12 East, p. 62. There, in addition to the evidence of entries in the Court Rolls of the admission, in default of heirs male, both of the eldest of several daughters and of the eldest of several sisters, evidence of reputation was also given that in the absence of all the foregoing the descendants of such an eldest daughter or sister were entitled to inherit. And the Court held that such evidence of reputa- tion was rightly received to establish the claim of a great nephew, (an eldest sister's grandson), although no instance of such an admission appeared upon the Court Rolls. Upon a review of these authorities, it appears to me that there is no positive rule of law which prevents us from giving to the evidence the effect to which it is otherwise entitled. I readily concede that there is sufficient authority for saying that customs are to be construed strictly. But I think that this rule must itself receive a reasonable interpretation. It may be observed, that at the time this doctrine was laid down,

2H. &N. 681. MUGGLETON V. BARNETT 281

customs were looked upon with disfavour, as being [681] encroachments on the common law. Later historical researches have shewn, however, that instead of this being the case, these local customs are remnants of the older English tenure, which, though generally superseded by the feudal tenures introduced after the dominion of the Normans had become firmly established, yet remained in many places, probably in manors which instead of passing into the possession of Norman lords, remained in the hands of the English proprietors. These customs, therefore, are not merely the results of accident or caprice, but were originally founded on some general principle or rule of descent. I am, however, quite ready to admit that we ought not to extend a custom beyond what is shewn to have actually taken place, except where very clear and cogent evidence enables us to see that the custom is based on a more extended principle. Thus, if there are only instances of the custom in the lineal course of descent, I agree that it should not thence be inferred that the custom extends to collaterals ; or, vice versa, where the custom is only proved in the case of collaterals. But where, as in this case, the proof of a customary course of descent, not only among lineal descendants but also among collaterals for two generations, leads legitimately to the conclusion that such mode of descent is based on a principle of universal application within the manor as here, that the youngest shall in all cases inherit instead of the eldest, the evidence ought, as it seems to me, to be carried to its legitimate consequences.

It is said, indeed, that custom, being no more than user, must necessarily be limited to the extent to which the use has been carried. I think this is too narrow a view of the subject. I agree that where the usage is confined to a single and specific instance, it would be improper to assume that it has a larger application ; but where we find a variety [682] of instances, all referable to a common principle, I think it would be illogical and unreasonable that the custom should be stated, not as involving that general principle, but as confined to the particular instances shewn to have occurred. Thus, where, as in the present case, it is found that, not only among lineal descendants, but also among collaterals to the second and third generation, the youngest male is preferred to the eldest, I think the inference ought necessarily to be drawn that the customary rule of descent was that the youngest male in whatsoever degree should inherit in preference to the eldest. Nor am I at all embarrassed by the circumstance that in the records of this manor no instance of the youngest son of a youngest grand uncle (which is the present case) has ever been admitted. A long series of generations might pass away before such a case would arise. In the great majority of instances estates are transmitted in the lineal course of descent. When that line sometimes fails, they go to brothers or to brothers' children ; more rarely to an uncle or an uncle's children ; and in but a few rare instances to a grand uncle or the children of a grand uncle. One can easily understand, therefore, that in the generations which have passed since the records of this manor have been preserved, no instance of such a succession may have arisen ; but we must not forget that these ancient tenures, in all human probability, existed long before the period since which these manorial records have been preserved. They must have had some principle or rule as their origin and foundation ; and when, as in this case, the instances which are proved enable us to discover a plain and intelligible rule, I think we should not hesitate to apply it, although the particular instance with which we are dealing may not be shewn to have occurred. A very striking illustration is afforded by the case now before us of the inconvenience which would follow from the adop-[683]-tion of a different rule. The case states an instance of the admission of the youngest son of the youngest uncle of the person last seised ; but there is no instance of the admission of a youngest uncle. Now, if the rule contended for on the authority of Ratdiffe v. Chaplin and Denn v. Spray were to prevail, this extraordinary anomaly would arise, that while the son of the youngest uncle could inherit, the uncle himself, though nearer in degree, could not : a consequence so obviously absurd as forcibly to illustrate the unsoundness of the doctrine from which it would spring. Again, in this very case there is no instance of the admission of a youngest grandson ; yet surely no one, in the face of the several instances in which it is here admitted that the custom has extended to collaterals, could bring himself to doubt that upon this evidence the custom must be held to extend to a youngest son of a youngest son deceased, as it would have descended to the youngest son if living.

On a careful consideration of this case and on the grounds I have stated, I am of opinion that the judgment of the Court of Exchequer should be reversed, and judgment given for the plaintiff.

Judgment affirmed.

Notes

1. Feb. 6. Before Cockburn, C. J., Coleridge, J., Wightman, J., Cresswell, J., Erie, J.. Williams, J., and Crompton, J.
2. Wightman, J., being unavoidably absent, his judgment was read by Crompton, J.