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

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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.] ”

“ 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. ”

“ 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 ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”