UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 "Mr. Robinson's book on Gavelkind is a very accurate and 
 excellent law treatise, and generally comprehends everything 
 relative to his subject." (Hargrave's Co. Litt. 10 a, note (3) ; 
 171 b, note (5) ; 175 b, note (4) ; Petersdorff's Abr. vol. 4, 
 p. 655, note.) 
 
 "Mr. Robinson's treatise on Gavelkind is an excellent book, 
 for it not only comprehends whatever is useful in Somner, 
 Taylor, and Lambarde, but contains a full account of both 
 tenure and Custumal ; besides which, it is a complete law 
 treatise on these heads, and is of such authority in the Courts, 
 that it is in general referred to by the Judges, as a direction 
 to them to proceed in the knotty and before unknown points 
 of this tenure and custom." (Hazted's Hist, of Kent, vol. 1, 
 p.p. 312, 313, 2nd edit.)
 
 X Xl/ j_ j JffAJ s/A j . /> 
 *" - i^-l^'L & r t-4> s [/ (-T/I 
 
 > / / 
 
 MM 1 1/ " - i^-^' r - s / - ^/' 
 
 COMMON LAW OF KENT: 
 
 OR, 
 
 THE 
 
 CUSTOMS OF GAYELKIND. 
 
 WITH THE DECISIONS CONCERNING 
 
 BOROUGH-ENGLISH. 
 
 BY THOMAS ROBINSON, ESQ., 
 
 OF LINCOLN'S INN. 
 
 A NEW EDITION, 
 
 WITH A SELECTION OF PRECEDENTS OF FEOFFMENTS 
 BY INFANT HEIRS IN GAVELKIND, ETC. 
 
 BY 
 
 J. D. NORWOOD, SOLICITOR. 
 
 ASHFORD : 
 HENRY IGGLESDEN, HIGH STREET. 
 
 1858.
 
 R5C7Se 
 1358 
 
 ASHFORD : PRINTED BT H. IGGLESDEN, HIGH STREET. 
 "337^03
 
 ! 
 
 THE 
 
 EDITOR'S PREFACE. 
 
 THE Editor trusts the present edition will be found 
 acceptable to the Profession. The work heretofore con- 
 tained much matter which the various alterations in the 
 law have rendered, of no practical utility; this portion 
 has been accordingly cancelled, which has considerably 
 reduced the size of the work. 
 
 The Editor's additions to the text are inserted within 
 brackets, and his notes are distinguished by being alpha- 
 betically numbered. He has added at the end of the 
 work, a selection of precedents of feoffments by infant 
 heirs in gavelkind, and an extract from the Third Real 
 Property Report made in 1832, proposing the total abo- 
 lition of the custom of gavelkind in Kent. 

 
 IV EDITOR S PREFACE. 
 
 In conclusion, he begs to state, that no labor has been 
 spared in collecting every decision to be found in the 
 reports and text books bearing on the subject of this 
 treatise, and he has also referred to most of the authorities 
 cited by the Author, which were found to be very cor- 
 rectly cited, and fully 'to justify the encomium his work 
 has received of being called " an excellent and accurate 
 treatise on Gavelkind."* 
 
 ASHFORD, JULY, 1858. 
 
 * See Hargrave's Co. Litt. 10 a, note (3) ; 171 b, note (5) ; 175 b, 
 note (4) ; Petersdorff's Abr. of the Common Law, tit. " Borough- 
 English," vol. 4, p. 655, note ; Hasted's Hist, of Kent, vol. 1, p.p. 312, 
 313, 2nd edit.
 
 THE 
 
 THERE being already extant three treatises, whose 
 titles bear a resemblance to the present, the Author 
 thinks it incumbent on him to say something in justifi- 
 cation of his troubling the public with one more. 
 
 Mr. Somner's Inquiry into Gavelkind is limited to 
 the etymology of the term, and the origin and antiquity 
 of the custom, with a few other speculative points. 
 
 Mr. Taylor is content with treating in general of the his- 
 tory and etymology of Gavelkind, without any particular 
 regard to the Kentish customs, to which he was an entire 
 
 stranger. 
 
 Nor can the Author better shew the main design 
 of these two writers to be different from his, than
 
 VI AUTHORS PREFACE. 
 
 by making use of their own words : " Many other things," 
 says Mr. Somner at the end of his book, "offer them- 
 " selves to my discourse, that would treat of gavelkind 
 "to the full; but they are, I take it, mostly points of 
 "common law, which, because they are not only out of 
 " my profession, but besides my intention too, which was, 
 "to handle it chiefly in the historical part, and that no 
 " further than might conduce to the discovery of the pri- 
 "mordia or beginnings of it, I shall not wade nor engage 
 " any further in the argument, lest I be justly censured 
 "of a mind to thrust 'my sickle into another man's harvest." 
 
 And, in like manner, Mr. Taylor informs the reader in 
 his preface, that "he presents to his view and examina- 
 "tion, not a law case on the tenure of gavelkind (for 
 " that would have proved beyond the abilities of one that 
 " confesses himself no lawyer, and professes himself ignorant 
 "in that practice and study), but only the history of it." 
 
 To the account of the Kentish customs at the end of 
 Mr. Lambard's Perambulation of that county, the Author 
 owns himself much obliged; and had that judicious 
 writer professed to have treated of them as fully, as the 
 nature of the subject would have permitted, he would 
 not have attempted it after him. But as Mr. Lambard 
 intended his only as a summary account, so it is, perhaps,
 
 AUTHORS PREFACE. VII 
 
 too closely confined to the points in the Custumal ; and 
 the Author having the advantage to come after him, has 
 had an opportunity of clearing up some matters left 
 doubtful by Mr. Lambard, and of rectifying others that 
 have the appearance of errors. * But to avoid misleading 
 the reader by any mistaken conclusion of his own, he 
 has given the cases distinct where there is any disagree- 
 ment; and if he has sometimes ventured to give his 
 own opinion where the direct authority of the books is 
 silent, he thinks he need not caution the reader to give 
 no further credit to it, than as it shall appear to him to 
 be reasonable. 
 
 He believes he has omitted no case relating to his 
 subject to be found in any book of authority, either an- 
 cient or modern. Nor has he confined himself to the 
 cases already in print, but traced the matter higher 
 than the books, and given the reader all that occurs 
 of use concerning these customs in the records of 
 the proceedings before the Justices in eyre for Kent, 
 in the reigns of Hen. 3, Edw. 1, and Edw. 2 ; and be- 
 fore the Justices of assize for the same county, in the 
 times of Hen. 3, Edw. 1, Edw. 2, Edw. 3, and Rich. 2. 
 
 * See post, p.p. 36, 104, 108, 133, 135.
 
 VIII AUTHORS PREFACE. 
 
 In those of the reigns of Hen. 4 and 5, he found nothing 
 worthy notice. There are likewise, most, if not all the 
 remarkable records of the same nature, to be found 
 amongst those of the King's Bench in the foregoing 
 reigns, and a few in the Common Pleas, which the 
 Author was directed to by the indexes and abstracts of 
 those records in the office; to which, as well as the 
 records themselves, he found easy access, by the indulgence 
 of the gentlemen employed in the custody of them. These 
 make about a fourth of the book, and, he believes, will be 
 thought the most valuable part of it, as they are of an 
 authentic nature, and a fund before unknown, and will be 
 found to furnish much uncommon matter, and to illustrate 
 many points left doubtful on the printed books, and the 
 modern practice of the country.
 
 CONTENTS. 
 
 BOOK I. 
 CHAPTER I. 
 
 PAGE. 
 OF THE ETYMOLOGY AND SEVERAL SIGNIFICATIONS OF THE WORD 
 
 GAVELKIND. 
 
 Of the etymology of the word gavelkind .... 1 
 Other significations of the word ..... 5 
 
 CHAPTER II. 
 
 OF THE ANTIQUITY AND UNIVERSALITY OF PARTIBLE DESCENTS 
 IN ENGLAND. 
 
 Of partible descents among the Saxons .... 9 
 
 Of the state of descents in England at the Conquest . . 11 
 The right of primogeniture, how and when first introduced 
 into England ......... ibid 
 
 The reason of the continuance of gavelkind in Kent . . 17 
 
 CHAPTER III. 
 
 IN WHAT PLACES OUT OF KENT THE CUSTOM OF GAVELKIND 
 MAY BE ALLEGED AND MAINTAINED. 
 
 Where the custom may be supported out of Kent . . .19
 
 X CONTENTS. 
 
 PAGE. 
 
 CHAPTER IV. 
 
 OF THE MANNER OF PLEADING THE CUSTOM OF GAVELK1ND ; 
 AND THE DIFFERENCE AS TO THIS BETWEEN KENT AND OTHER 
 COUNTIES, AND BETWEEN THE GENERAL AND SPECIAL CUSTOMS. 
 
 Manner of pleading the custom of gavelkind . . . 21 
 Need not be pleaded in a special manner if the lands be in 
 
 Kent .......... ibid 
 
 Customs of gavelkind and borough-english cannot be traversed 24 
 Of the customs of gavelkind, general and special . . . ibid 
 Courts of Law take notice only of the general, and not of the 
 
 special customs of gavelkind 25 
 
 CHAPTER V. 
 
 WHAT LANDS AND TENEMENTS IN KENT ARE OF THE NATURE 
 OF GAVELKIND : OF THE EFFECT OF THE ALTERATION OF THE 
 TENURE, AND OF THE DISGAVELLING STATUTES. 
 
 All lands in Kent presumed to be gavelkind ... 27 
 All ancient socage lands in Kent are gavelkind . . .28 
 Actual partition not necessary ...... ibid 
 
 All ancient knight-service lands in Kent not gavelkind . . 29 
 Of knight-service ........ ibid 
 
 No prescription against gavelkind in Kent . . . .30 
 
 No usage in any place in Kent against the general custom of 
 
 gavelkind 31 
 
 Of the effect of the alteration of the tenure from knight-service 
 
 to socage ......... 32 
 
 Or from socage to knight-service ..... 33 
 
 Of the King's power to change the descent of gavelkind lands ibid 
 Of the descent of gavelkind lands while in the hands of the 
 
 Crown 36 
 
 No act of the tenant can alter the descent of gavelkind or 
 
 borough-english lands ....... 38 
 
 Nothing can extinguish the custom of gavelkind but an Act of 
 
 Parliament , . . ibid
 
 CONTENTS. XI 
 
 PAGE. 
 
 The disgavelling statutes, and the effects of them . . .39 
 The names of the persons whose lands in Kent have been dis- 
 
 gavelled by Acts of Parliament . . . . 39 n. 
 
 Evidence of the disgavelling Acts ..... 43 
 
 Of a remainder or reversion of gavelkind land . . .46 
 
 Of a use and a trust ........ ibid 
 
 Of the profits of a fair or market holden on gavelkind land . 47 
 
 What rents out of gavelkind follow the nature of the land . 48 
 
 Authority of one co-heir to distrain for the whole rent . 50 n. 
 
 Of tithes out of gavelkind lands ..... 52 
 
 The generality of gavelkind throughout Kent . . .53 
 
 CHAPTER VI. 
 
 OF THE NATURE OF GAVELKIND IN POINT OF DESCENT AND 
 PARTITION J AND OF THE REMEDIES FOR AND AGAINST PAR- 
 CENERS BY THE CUSTOM. ' 
 
 The manner of descent of gavelkind lands in the right line . 55 
 Females may inherit with males by representation . . 56 
 The manner of descent in the collateral line . . . .57 
 
 Of gavelkind lands in tail 59 
 
 Whether gavelkind lands devised to a man and his wife for 
 their lives, remainder "to the next heir male of their bodies 
 for ever," be a devise in tail to the husband and wife . . ibid 
 Of the descent of estates pur auter vie of gavelkind lands . 60 
 Of copyholds descendible after the manner of gavelkind . . 61 
 Of the manner of partition by parceners in gavelkind . . ibid 
 Of suit service by parceners in gavelkind ... 63 
 
 Where the entry of one parcener is the seizin of all . . ibid 
 Of debt against heirs in gavelkind on the bond of their ancestor 64 
 Of extending the lands of the heirs in gavelkind on a judgment 
 of their ancestor ........ 67 
 
 To what purposes all the sons are not heirs . . . .68 
 
 Who shall be heirs to take gavelkind lands by purchase . ibid 
 
 *
 
 XII CONTENTS. 
 
 PAGE. 
 
 Who is heir to take advantage of a condition annexed to gavel- 
 kind lands ......... 70 
 
 When words of condition in a will of gavelkind lands shall be 
 construed a limitation ....... 73 
 
 Case where Equity refused to give relief .... 75 
 
 Whether the doctrine of cy-pres can be applied to lands of 
 gavelkind tenure ........ ibid 
 
 BOOK II. 
 
 OF THE SPECIAL CUSTOMS INCIDENT TO GAVELKIND LANDS 
 
 IN KENT. 
 
 CHAPTER I. 
 
 OF TENANCY BY THE CURTESY. 
 
 How this custom differs from the curtesy of England . . 78 
 Authorities to shew that the husband is entitled after issue 
 
 had, only to a moiety as long as he lives unmarried . . ibid 
 Authorities to shew that he is entitled to the same, though no 
 
 issue had 88 
 
 The origin of this custom ....... 93 
 
 Of waste by tenant by the curtesy . . . . .94 
 
 CHAPTER II. 
 
 OF DOWER. 
 
 Of what part the widow shall be endowed .... 95 
 On what conditions ..... .96
 
 CONTENTS. XIII 
 
 PAGE. 
 
 How her incontinency must be proved in order to a forfeiture 97 
 Who may take advantage of the forfeiture . . . .101 
 
 Who shall have the emblements upon forfeiture . . . ibid 
 When an action will lie for calling tenant in dower of gavel- 
 kind lands a whore . . . . . . 102 
 
 Of what things she shall be endowed of a moiety . . . 103 
 Whether of a bailiwick, or of the profits of a market or fair ibid 
 Whether of common in gross . . . . . .105 
 
 Or of rent ibid 
 
 Whether of tithes impropriate . . . . . ibid 
 
 What remedies lie for this dower . . . . .106 
 
 Of the manner of demanding dower of gavelkind lands . . 107 
 How dower of a moiety is to be assigned . . . .108 
 
 Whether the customary dower can be waived for dower at 
 common law . . . . . . . . .111 
 
 Of devising the crop on lands held in customary dower . .113 
 
 CHAPTER III. 
 
 OF THE CUSTOMARY WARDSHIP, AND OF ALIENATION BY AN IN- 
 FANT TENANT IN GAVELKTND. 
 
 Of wardship . . . . , . . . .115 
 
 Of alienation by an infant of fifteen 116 
 
 The restrictions attending this custom 118 
 
 Whether the custom extends to other conveyances . . ibid 
 Whether it extends to a release when the infant is not in actual 
 
 possession and seizin of the land . . . . .120 
 Whether a warranty on a feoffment within the custom be good 133 
 Whether the alienation be confined to a sale . . . ibid 
 Whether to lands coming by descent . . . . .134 
 Whether to lands of which the infant is seized in fee . .1 36 
 Whether a gift in tail, or for life by livery, be within the 
 
 custom 137
 
 XIV CONTENTS. 
 
 PAGE. 
 
 CHAPTER IV. 
 
 THE FATHER TO THE BOUGH, 
 AND THE SON TO THE PLOUGH. 
 
 The origin of this custom . . . . . .138 
 
 What the custom is ibid 
 
 How it is confined . . . . .140 
 Whether a brother shall inherit the gavelkind lands of his 
 
 brother executed for felony 141 
 
 The wife shall be endowed of gavelkind lands by the custom 
 
 notwithstanding the felony of the husband . . .142 
 
 This custom extends not to high treason .... ibid 
 
 THE CUSTUMAL OF KENT . 143 
 
 PRECEDENTS OF FEOFFMENTS BY INFANT HEIRS IN 
 
 GAVELKIND. 
 
 No. I. 
 
 Feoffment by an infant heir to a purchaser in fee, with power 
 of attorney to receive seisin. (Variation, where his mother 
 concurs to extinguish her dower.) . . . . .169 
 
 No. II. 
 
 Feoffment by an infant heir of his undivided moiety of pre- 
 mises to a purchaser in fee . . . . . .175
 
 CONTENTS. XV 
 
 PAGE. 
 
 No. III. 
 
 Feoffment by an infant heir of his undivided third part of pre- 
 mises to his two brothers who are of age, and who, by the 
 same deed, convey the entirety of the said premises to a 
 trustee, to such uses as they shall appoint ; the mother con- 
 curring to release her dower 179 
 
 APPENDIX. 
 
 EXTRACT FROM THE THIRD REAL PROPERTY REPORT 
 RELATING TO THE CUSTOM OF GAVELKIND 185
 
 INDEX OF CASES. 
 
 
 PAGE. 
 
 PAGE. 
 
 A. 
 
 
 Buckley v. Nightingale 64 n. 
 
 ALEYN (Henry) v. W] 
 de Echynghamme . 
 
 11. 
 
 . 129 
 
 Bulwer v. Bulwer 102 & n. 
 Burridge v. Sussex (Earl 
 
 A * /~<~.~'U^ / T>^l^^^y%\ 
 
 
 of) 27 
 
 At Uombe (ivooerge) 
 
 v. 
 
 
 Thomas At Combe 
 
 . 98 
 
 
 
 
 C. 
 
 B. 
 
 
 Calvin's case . . . 17 n. 
 
 Back v. Claver . 
 
 . 86 
 
 Chapman's case . . .141 
 
 Baker v. Dereham 
 
 . 61 
 
 Chester v. Chester . . 46 
 
 Ballard v. Ballard . 
 
 . 46 
 
 Clarendon v. Hornby . . 63 
 
 Banks v. Sutton 
 
 . 46 
 
 Clement w. Scudamore 9, 11, 
 
 Baxter v. Doudswell . 
 
 . 61 
 
 22, 26, 49, 56, 57, 61 
 
 Bear's case .... 
 
 70 n. 
 
 Cobham (Lady) v. Tom- 
 
 Beddyl v Crouthcr 
 
 82 n. 
 
 linson 96 
 
 
 
 
 Beviston v. Hussey 
 
 . 58 , 
 
 Combes's case . . . .118 
 
 Blackborougli v. Davis 
 
 10, 13 
 
 Cooper v. France . . 57 n. 
 
 Blunt v. Clarke . . 
 
 . 61 
 
 Crewe v. Dicken . . 171 n. 
 
 
 102 
 
 Croke v. Bolle . . . .131 
 
 Booth v. Lambert . 
 
 . 110 
 
 Crosby v. Hetherington . 22 
 
 Brocas v. Savage . . 
 
 . 140 
 
 Crump v. Norwood . . 58 
 
 Brooke v. Thomlinson 
 
 . 43 
 
 Culley v. Taylerson . 64 n. 
 
 Browne v. Brookes 
 
 25, 27 
 
 Culpeper's case . ... 75 
 
 
 43, 91 
 
 Curteis v. Wolverston . 74 
 
 Brown v. Dyer . 
 
 . 49 
 
 Curtis v. Curtis . . 106 n.
 
 XVI I 
 
 INDEX OF CASES. 
 
 D. 
 
 Dane v. Johnson . . .91 
 
 Davenport v. Tyrrel . . 63 
 
 Davies v. Selby . 6 n., 9G, 
 109, 113 
 
 Decharms v. Horwood 50 n. 
 
 Denn v. Purvois . . 56, 58 
 
 De Adehullegate's (Wil- 
 liam) case . . 6 n., 86 
 
 De Atteseld's (Salomon) 
 case 83 
 
 De Beggbrok's case . . 29 
 
 De Bending's (Burga) 
 
 case . . . . 35 n., 89 
 
 De Bevill (Gilbert) v. 
 William De Bevill . .15 
 
 De Bourne (Richard) v. 
 John De Hegham . .126 
 
 De Colby's (Ralph) case 7 n. 
 
 De Gatewyk (Richard and 
 William) v. Catherine 
 De Gatewyk . . .123 
 
 De Gravenel's (Isabella) 
 case 97 
 
 De Greenhethe's (Alex- 
 ander) case 6 n., 86, 117 
 
 De Hersing (William) v. 
 Simeon De Haliberg . 79 
 
 De Ilormesdesholl (Wil- 
 liam and Thomas) v. 
 Arnet 81 
 
 De Kancia (Thomas) v, 
 John De Ripariis . .Ill 
 
 De Merdale's (Peter and 
 William) case . 84, 122 
 
 De Tvvythara (John) v. 
 Feversham . 130 
 
 DC Valon (John) v. Wil- 
 liam De Valon . . . 16 
 De Wormesell (Thomas) 
 
 v. Kelsham . . . .131 
 Doe d. De Rut/eii v. 
 
 Lewis 51 n. 
 
 Holt v. Hoi-rocks 64 n. 
 
 Lushington r. The 
 
 Bishop of Llandaff 34 n., 
 52 n. 
 
 Doe v . Brydges 42 n,, 43 n.. 
 
 45 
 
 Clift . . . ... 22 
 
 Garrod .... 59 
 
 Harvey . . . .56 
 
 Jones 70 
 
 Redfern .... 30 
 
 Drake v. Robinson. . 66, 68 
 Dumpor's case . . . 51, 73 
 Dupays v. Shepherd . . 45 
 
 E. 
 
 Edwin v. Thomas ... 49 
 Estwicke's case ... 30 
 Ewer v. Astwike . .21 
 
 F. 
 
 Fawcet v. Lowther 46, 47 n. 
 Field re 47 n. 
 
 G. 
 
 Game v. Symms ... 64 
 
 Godefrey's case . . . .100 
 
 Gouge v. Wood win 27, 28, 
 
 29, 32, 33, 38, 57
 
 INDEX OF CASES. 
 
 XIX 
 
 PAGE. 
 
 
 PAGE. 
 
 
 Lee's (Kirby) case 
 
 28, 29 
 
 H. 
 
 Leigh v. Shepherd 
 
 50 n. 
 
 Ilanion's (Peter) case , 6 n. 
 
 
 30 
 
 
 
 Ilamon v. Warden . .132 
 
 Lowe v. Paramour 
 
 . 117 
 
 Harbert's case .... 68 
 
 
 
 llawtrie v. Auger . . 56, 67 
 
 M. 
 
 
 lleavle v. Greenbank . .117 
 
 
 
 Heddey v. Wellhouse . .47 
 
 May v. Milton . . . 
 
 . 60 
 
 Helles's (Joan) case 6 n., 96 
 
 Minet v. Leman 
 
 36 n. 
 
 Ilinton v. Hinton 46 & n. 
 
 Monypenny v. Bering 
 
 . 75 
 
 Hougham v. Sandys 29 n., 
 
 Mundy v. Mundy . 
 
 106 n. 
 
 47 n. 
 
 
 
 Humphry v. Bathurst 21, 22 
 
 N. 
 
 
 Hunt v. Gilburne . 96, 112 
 
 
 
 
 Newcomen v. Barkham 
 
 . 69 
 
 J. 
 
 North woode's case . 
 
 . 100 
 
 Jones v. Reusbie ... 46 
 
 
 
 
 O. 
 
 
 K. 
 
 
 
 
 Gland's case .... 
 
 . 102 
 
 Kent re . . .47 n., 188 n. 
 
 Gland v. Burdwick 
 
 102 n. 
 
 Kuolle's case .... 49 
 
 Osmer v. Sheafe 
 
 . 49 
 
 L. 
 
 
 
 
 P. 
 
 
 Launder v. Brooks . 22, 25, 
 
 
 
 108, 145 n. 
 
 Page v. Stedman . 
 
 . 50 
 
 Le Bonde's (Roger) case . 109 
 
 Parlebien's (Simon) case 6 n., 
 
 Le Chapelyn's (Robert) 
 
 
 125 
 
 case 24, 31 
 
 Paterson v. Mills . . 
 
 57 n. 
 
 Le Gulc (John) v. Mabilia 
 
 Pour's (Michael) case 
 
 117, 
 
 Le Gule 80 
 
 
 135 
 
 Le Linus (Roger) v. Cokin 89 
 
 Povvdrell v. Jones . 
 
 114 n. 
 
 Le Mosc (John) v. Pelte- 
 
 Preston v. Jervis . 
 
 . 27 
 
 beam 79 
 
 Priddle v. Napper . 
 
 . 52 
 
 Le Pede's (William) case 6 n., 
 
 
 
 92 
 Le Pykoc's (Robert) case 6 n., 
 
 Q. 
 
 
 86 
 
 Quadring v. Downs . 
 
 116n.
 
 XX 
 
 INDEX OF CASES. 
 
 R. 
 
 Randal v. Roberts ... 50 
 
 - Writtle . 23, 27, 28 
 
 Randall v. Jenkins . . 49 
 
 Richill ... 46 
 
 Rebow v. Bickerston . . 48 
 Re Field .... 47 n. 
 Kent , . 47 n., 188 n. 
 
 Rex v. Bell . . . 
 
 Bridger 
 
 Toddington 
 
 Rider v. Wood 
 
 Rigden v. Vallier . 
 
 Roberts v. Dixwell 
 
 Robinson v. Hofman 
 
 Roe v. Aistrop 
 
 d. Heale v. Rashleigh 173 
 
 Rushden's case , 51 
 
 48 n. 
 151 n. 
 116 n. 
 
 . 61 
 
 70 n. 
 
 47 n. 
 
 50 n. 
 38, 59. 
 
 S. 
 
 Sanders v. Deligne . . 75 
 
 Scerre's (John) case . .86 
 
 Shaw v. Thompson . .106 
 
 Smartle v. Penhallow . 137 
 
 Smith v. Adams . . 114 n. 
 
 Sparke v. Purnell . . 59 
 
 Sparrow v. Mattersock .111 
 
 Spicer v. Marchall . .128 
 
 PAGE. 
 
 Stanton v. Barnes . .137 
 Starkey v. Starkey . 47 n. 
 Stoc v. Robert De Thir- 
 ling 82 
 
 Stokes v. Verrier ... 49 
 Story v. Johnson ... 63 
 
 T. 
 
 Teynham v. Head . . 46 n. 
 Thorp v. Owen ... 69 
 Trash v. Wood ... 59 
 
 V. 
 
 Vaughan v. Holdes . .137 
 
 W. 
 
 Watson v. Watson . .106 
 
 Weeks v. Carvel ... 59 
 
 Wellock v. Hammond . 73 
 
 Wheeler's case .... 30 
 
 Willion v. Lord Berkley . 37 
 
 Willis v. Lucas ... 27 
 
 Wimbish v. Tailbois . .71 
 
 Wiseman v. Cotton 7 n., 8 n., 
 
 22, 25, 27, 29, 37, 38, 42 
 
 & n., 43, 44 n., 54, 77, 
 
 91, 108 
 
 Wood r. Jefferies . , 88
 
 ERRATA. 
 
 Page 4, note, line 3, dele (post bk. 2, ch. 3) 
 5, (post bk, 2, ch. 3) 
 
 5, ,, 1, (post bk. 1, ch. 5) 
 6, 17, (post bk. 2, ch. 3)
 
 THE CUSTOMS 
 
 OF 
 
 GAVELKIND 
 
 BOOK I. 
 CHAP. I. 
 
 OF THE ETYMOLOGY AND SEVERAL SIGNIFICATIONS 
 OF THE WORD GAVELKIND. 
 
 THE various opinions of the antiquaries con- CHAP. I. 
 cerning the etymology of the word Gavelkind, 
 may be comprehended under these two heads : 
 
 1st. Such as are founded on the nature of the 
 lands in point of descent ; 
 
 Or, 2dly, on the nature of the services yielded 
 by the land. 
 
 The conjectures of the first kind are three; 
 whereof the most common and vulgar, com- 
 pounds gavelkind of the words gife eal cyn, or
 
 OF THE ETYMOLOGY 
 
 BOOK I. give all kind; kynd in* Dutch signifying a male 
 child. (Lamb. Peramb. ff|; and his Glossary to 
 the Saxon Laws, verbo Terra ex scripto ; Co. Litt. 
 140 ; Dodderidge's English Lawyer, 73 ; Cowel 
 in voce; Nat. Bacon, of Government, quarto ed. 
 106 ; Verstegan's Restitution of decayed Intelli- 
 gence, 57 ; Daniel's Hist, of England, 38.) 
 
 o o ' 
 
 2. Sir H. Spelman, in his Glossary, under the 
 word gaveletum, expounds this term a little differ- 
 ently, as derived from gavel (tributum vel debi- 
 tum), of right belonging or given to, cyn or kynd 
 (soboli pueris vel generi). And in like manner it 
 is explained in Minshew's Dictionary, under the 
 word Gavelkind. 
 Powell's 3. Mr. Taylor in his History of Gavelkind, 
 
 TJ* 4- 
 
 8 ' deduces the first part of the name from the an- 
 
 22. cient British word gafael, or according to the 
 
 English pronunciation, gavel, which signifies a 
 tenure, pp. 26, 96, from the word gafaelu, to hold, 
 p. 92 ; but is something at a loss to account for 
 the termination, and offers, with some diffidence, 
 two derivations of it, one from the British word 
 kennedh, generatio or familia, and then the com- 
 pound will import the tenure of the family, pp. 
 132, 147, 150 ; the other from the Saxon word 
 gecynde, kind or sort ; and he supposes that " the 
 " Saxons meeting with the British gavel, and un- 
 derstanding it to be their common tenure, 
 
 * But Mr. Somner says that hind, in that language, sig- 
 nifies all children, whether male or female. [Treat, on 
 Gavelk. p. 6, 2nd ed.]
 
 OF THE NAME OF GAVELKIXD. < 
 
 "added something to express it to their own CHAP. I. 
 "apprehensions, which being set together would 
 "signify, and that properly enough, genus tenu- 
 "rce" so called by way of eminence, "because 
 "that tenure deserved a denomination of the 
 "highest remark, it being, if not the only, yet 
 " the most eminent tenure among them," p. 134. 
 But the most natural and easy account, doing 
 least violence to the words, and best supported 
 both by reason and authority, is that which is 
 drawn from the nature of the services. Ac- 
 cording to this exposition of the term, it is 
 derived from the Saxon word gafol, or, as it is 
 otherwise written, gavel, which signifies rent or a 
 customary performance of husbandry works; 
 and therefore they called the land which yields 
 this kind of service, gavelkind, that is, land of the 
 kind that yield* rent This derivation, first at- 
 tempted by Mr. Lambard in his Perambulation, 
 Oof;-, and followed by Philipot, in his Villare 
 Cantianum, p. 2, Mr. Somner warmly espouses, 
 and maintains with great learning; proving by 
 a number of ancient records, that gafol or gavel 
 was a word of frequent use among the Saxons, 
 and signified not only tribute, tax, or custom, 
 but also rent in general ; and that under this 
 term were comprehended all socage services 
 whatsoever, which lie in render or feasance ; the 
 word being compounded with, and applied to 
 the particulars wherein the payment, or perfor- 
 mance of the service consisted; as gavel-corn 
 signifying corn-rent, qaivl-erth tillage service, and 
 
 B 2
 
 OF THE ETYMOLOGY AND VARIOUS 
 
 49. 
 
 BOOK I. a multitude of others; and the tenant from 
 whom these services were due was called Gavel- 
 man. And gavelkind is a compound of this word 
 gavel and gecynde, which is nature, kind, quality, 
 or condition ; and therefore the proper signifi- 
 cation of the term is land of that kind or nature 
 that yields rent, censual or rent-service land, in 
 contradistinction to knight-service land, which 
 being holden per liberwn servitium armorum 
 yielded no cens, rent, or service in money, pro- 
 vision, or works. (Somn. c. 1, p. 12, et seq.) So 
 that those lands are in Kent called gavelkind) 
 which in other counties are distinguished by the 
 Somn. 35, name of socage. Mr. Sonmer's derivation of the 
 word is further supported by the opinions of 
 Mr. Just. Fortescue, in his remarks on his an- 
 cestor's Treatise of Monarchy, p. 72, and of 
 Mr. Just. Wright, in his Introduction to Tenures, 
 p. 209. [See Hargr. Co. Litt, 140 a, note (4).] 
 If this be the true etymology, it is evident 
 that gavelkind, taken in the strictest sense of the 
 word, denotes the tenure of the land only,* and 
 
 * It occurs in this sense, Litt. sect. 265 ; Fitz. Barre, 
 119, Prescription, 52 ; Rot. Claus. 16 H. 3. m. 14 ; 17 H. 
 3. m. 17; 37 H. 3. m. 19. in dorso. (post bk. 2, ch. 3); 
 3 Ed. 1. m. 2; 39 H. 3. Itin. Kane. rot. 1. in dorso; 43 
 H. 3. Itin. Kane. rot. 13. (post bk. 2, ch. 3) ; 55 H. 3. 
 Itin. Kane. rot. 20 ; ibid. rot. 28 ; ibid. rot. 5. in dorso ; 
 rot. 7. (post bk. 2, ch. 1); rot. 13; rot. 14; rot, 15. in 
 dorso; rot. 38. in dorso; rot. 47. in dorso; rot, 61. in dorso; 
 rot. 62; rot. 76; 7 Ed. 1. Itin. Kane, rot. 3. in dorso. (post 
 bk. 2, ch. 1); 21 Ed. 1. Itin. Kane. rot. 1. in dorso. (post 
 bk. 2, ch. 1); rot. 23; rot. 70. (post bk. 2, ch. 1); rot. 
 
 Gavelkind a 
 Tenure. 
 V. Somn. 
 144, 145.
 
 .SIGNIFICATIONS OF GAVELKIND. 5 
 
 that the portability and other customary qualities CHAP. I. 
 are rather extrinsic and accidental to gavelkind, 
 than necessarily comprehended under that term. 
 The ancient charters in Mr. Somner's Appendix, P. 177, 180, 
 whereby lands are granted tenendum in gavele- |^' 183> 
 kende, or ad gavelikendam reddendo, <fyc. (an ex- 
 pression frequent before the 18th Ed. 1. but not 
 to be met with in any grant since the statute 
 Quia eritytores termnuiij 18 Edw. 1, st. 1, cap. 1.) 
 are strong and unanswerable instances in support 
 of this opinion ; the tenendum being the proper 
 and usual place in all deeds for creating a new 
 or specifying the old tenure, and originally in- 
 serted for no other purpose. 
 
 Our writers of the law indeed have not always Other signi- 
 
 attended to the strict and original sense of the Rations of 
 
 , ,, , . the word, 
 
 word, but in the common language 01 their 
 
 books and records from the earliest times, have 
 spoken of gavelkind as a custom; and compre- 
 hended under that denomination, the several cus- 
 toms annexed to lands of this tenure in the 
 county of Kent.* 
 
 53. (post bk. 1, ch. 5) ; 6 Ed. 2. Itin. Kane, rot, 3 ; rot. 7. 
 in dorso; rot. 17. (post bk. 2, ch. 1); Mich. T. 13 Rich. 2. 
 C. B. rot. 645. (post bk. 2, ch. 1); Mich. T. 9. Ed. 2. C. 
 B. rot. 240. (post bk. 2, ch. 3); Trin. T. 17 Ed. 3. B. R, 
 rot. 32. (post bk. 2, ch. 2); Trin. T. 12 Ed. 1. C. B. 
 rot. 68. (post bk. 2, ch. 3). 
 
 * Not only the custom of partition, of which the 
 instances are so numerous that they need not be cited, 
 but the special customs also are constantly pleaded as cus- 
 toms of gavelkind: As 1st. Tenancy by the curlesy, in
 
 I OF THE VARIOUS SIGNIFICATIONS 
 
 BOOK I. And the term has by the modern use acquired 
 still a different signification, more confined as to 
 the properties contained under it, but more ex- 
 tensive in point of place, being generally at this 
 day made use of, to denote the partibility of the 
 land only, exclusive of all other customary quali- 
 ties; nor is gavelkind in ordinary speech re- 
 strained to Kentish lands, but equally and indifter- 
 
 55 H. 3. Itin. Kane. rot. 51. (post bk. 2, ch. 1); 7 Ed. 
 
 1. Itin. Kane. rot. 3. in dorso. (post bk. 2, ch. 1); 21 
 Ed. 1. Itin. Kane. rot. 41. (post bk. 2, ch. 1); 6 Ed. 
 
 2. Itin. Kane. rot. 17. (post bk. 2, ch. 1); Wm. le Pede's 
 case, Ass. in Com. Kane. 16 Ed. 2. (post bk. 2, ch. 1); 
 Robert le Pykoc's case, Ass. in Com. Kane. 17 Ed. 2. & 
 19 Ed. 2; Alex, de Greenhethe '* case, Ass. in Com. Kane. 
 15 Ed. 2 ; Wm. de Adehullegate 's case, Ass. in Com. 
 Kane. 19 Ed. 2 ; Mich. T. 13 Rich. 2. C. B. rot. 645. 
 (post bk. 2, ch. 1) ; Fitzh. Aid, 129, 144 ; Co. Litt. 30 a. 
 2dly, Dower, Pasc. 4 Ed. 1. C. B. rot. 21. (post bk. 2, ch. 
 2) ; Trin. T. 5 Ed. 2. B. R. rot. 4. (post bk. 2, ch. 2) ; 
 Joan Helles's case, Ass. in Com. Kane. 17 Ed. 2 ; Mayn. 
 Ed. 2. 284; Trin. T. 17 Ed. 3. B. R. rot. 32. (post bk. 2, 
 ch. 2); 21 Ed. 4. 54 a ; Davies v. Selby, Cro. Eliz. 125; 
 Co. Litt. 33 b. 3dly, Alienation by an infant of fifteen, 
 55 II. 3. Itin. Kane, rot, 90. in dorso. (post bk. 2, ch. 3) ; 
 Mich. T. 11 Ed. 3. B. R, rot. 133 ; Simon Parlebien's case, 
 Ass. in Com. Kane. 47 Ed. 3. (post bk. 2, ch. 3) ; 9 Ed. 
 
 3. 38 ; Peter Hainan's case, Ass. in Com. Kane. 13 Rich. 2. 
 (post bk. 2, ch. 3); 11 H. 4. 33 ; and Wardship of infants, 
 21 Ed. 1. Itin. Kane. rot. 35. in dorso; Mayn. Ed. 2. 610; 
 Ass. in Com. Kane. 7 Ed. 3. rot. 2. (post bk. 2, ch. 3). 
 ^thly, the Father to the bough, fyc. rot. claus. 8 Rich. 2. m. 
 2. (post bk. 2, ch. 4); Fitzh. Prescription, 40 ; Stath. Abr. 
 tit. Custom, pi. 2 ; Dyer, 310 b.
 
 OF GAVELKIND. ' 
 
 ently applied to all partible lands wheresoever CHAP. I. 
 they lie.* 
 
 * By the opinion of three judges against Wyndham, J. 
 in the case of Wiseman v. Cotton (1 Sid. 138 ; S. C. 1 Lev. 
 80), the special customs of Kent are no part of the custom 
 of gavelkind, for that the custom of gavelkind is in other 
 countries and towns, as Ireland, Wales, and many towns in 
 Sussex, scarce two of which places agree in any other cus- 
 tom but that of descent. But the authorities just above 
 cited sufficiently show, that the special customs have always 
 been reputed part of the custom of gavelkind. And with 
 regard to the latter part of this position, that gavelkind is 
 in other countries, it is remarkable, that although the name 
 of Gavelkind has been constantly applied to Kentish lands, 
 from the time of King John to the present, no book or 
 record before the time of the disgavelling statute 31 Hen. 8, 
 c. 3. (on which the question in this case of Wiseman v. Cot- 
 ton depended) has given that denomination to partible lands 
 in any other country, though many cases occur concerning 
 such lands ; but their uniform language with regard to these 
 is only, that they are partible and have been parted. (Vide 
 stat. Walliae, 12 Ed. 1 ; Stat. 27 Hen. 8, c. 26. concerning 
 Wales, sect. 35 ; Stat. 32 Hen. 8, c. 29 ; Itin. Rotel. 14 Ed. 
 1. rot. 2. in dorso ; Rex. Hil. T. 20 Ed. 3 R. R. rot. 160; 
 Fitzh. Prescription, 53 ; 2 Ed. 3. 12 ; 3 Ed. 3. 38 ; 5 Ed. 3. 
 64; 8 Ed. 3. 42 b ; 9 Ed. 3. 14 b; ibid. 27 ; ibid. 40 b; 
 23 Ass. pi. 12 ; 38 Ed. 3. 22 b.) Which universal con- 
 formity of the books and records in applying the term to V. Somn. 
 Kentish lands, but never to make use of it as to any others, 10, 53. 
 could hardly have arisen from chance, were the name equally 
 proper to both. Some of the cases go still farther, and make 
 a plain distinction between such partible lands in other 
 counties and gavelkind : As Bracton, lib. 3, 374 a. sicut in 
 gavelkynde vel alibi ubi terra est partibilis ratione terra. 
 And the same expression in Fleta, lib. 6, c. 17. And in 
 Ralph de Colby's case (2 Ed. 3. 12), concerning lands of the 
 fee of the Marshall in Norfolk alleged to be partible, it is
 
 8 OF THE VARIOUS SIGNIFICATIONS, ETC. 
 
 BOOK I. The word may possibly occur in the following 
 parts of this treatise, in each of these several 
 senses, according as the tenure, the custom of 
 Kent, or the partibility of lands in other coun- 
 ties, are the subject of the discourse, but still 
 with due care to avoid all confusion or mistakes 
 of the meaning. 
 
 said, that in gavelkind it is not necessary to show an actual 
 partition of the lands, because in gavelkind the tenements 
 are partible by usage of the country, but the fee of the 
 Marshall is only in certain towns, where the greater part of 
 the country is at the common law, and therefore necessary 
 to show that the lands had been actually parted. So in 5 
 Ed. 3. 64 a. it is said concerning lands of the fee of Gelfy, 
 pleaded to be partible among the males, that it is not of 
 these tenements as of tenements in gavelkind, for in gavel- 
 kind of common right the tenements are partible. And in 
 8 Ed. 3. 42 b. concerning lands of the like nature in Sax- 
 ham in Suffolk, it is held necessary to show between whom 
 they had been parted, for that you cannot draw the tene- 
 ments out of the common course of law, if you cannot show 
 between whom it was so used, unless you can allege the 
 usage of the whole county, as in gavelkind. These obser- 
 vations impeach not the authority of the case of Wiseman 
 v. Cotton (supra) in the point adjudged, for the whole 
 Court agreed, that if the special customs of Kent are part 
 
 V. post bk. of gavelkind, yet they are not affected by the disgavelling 
 
 1, ch. 5. statutes.
 
 CHAP. II. 
 
 OF THE ANTIQUITY AND UNIVERSALITY OF 
 PARTIBLE DESCENTS IN ENGLAND. 
 
 BEFORE entering into a particular consideration CHAP. II. 
 of the Kentish Customs, I shall treat of the 
 antiquity of the partible descent in England, 
 and shew the several alterations that in process 
 of tune it has received. 
 
 The laws of the Saxons and Danes, col- Ofpartible 
 
 lected by Brompton and Lambard * speak not descents 
 
 J P , among the 
 
 much concerning the manner ot descents among s ax0 ns. 
 
 them ; yet it seems that commonly their ordinary 
 lands at least, descended to all the children. 
 (Hale's Hist. Com. Law, 219; Parker Ant. Eel. 
 Brit. 108 ; Holt, C. J. in Clement v. Scudamore, 
 6 Mod. 121; S. C. 1 P. W. 63; [Turner's Hist. 
 of the Anglo-Saxons, vol. 2, p. 181, 2nd edit.; 
 
 * Haereditatem temporibus illis non (quemadmodum apud 
 nos) solus aetate maximus adibat, verum ad filios omnes 
 asqualiter fundus lege veniebat, quod illi Landesciftan 
 dixerunt, et Cantii hac nostra memoria eodem vocabulo 
 to shift land, id est, herciscere ct fundum partiri, appellant. 
 (Lamb. Gloss, to the Saxon Laws, verbo, terra ex scripto ; 
 see Somn. 77; Spelm. of Feuds, 12, 40, 43.) 
 
 C
 
 10 OF THE ANTIQUITY AND UNIVERSALITY 
 
 BOOK I. Haydn's Diet, of Dates, tit. " Gavelkind."]) For 
 amongst the laws of Canute is this law, No. 68 : 
 " Sive quis incuria sive morte repentina fuerit intestate 
 "mortuus, Dominus tamen nullam* rerum suarum partem 
 " (praeter earn quag jure debetur Hasreoti nomine) sibi as- 
 "sumito ; verum eas judicio suo uxori, liberis et cognatione 
 "proximis juste, pro suo cuiq. jure, distribuito" 
 
 The same inference may be made from the 
 75th law of the same king, whereby it was 
 enacted, that if a man died fighting in the army, 
 in the presence of his lord, his heriot should be 
 forgiven, and his heirs should succeed in his 
 goods and his paternal lands, and they should 
 be shifted or divided according to right. (Tayl. on 
 Gavelk. 143; Lamb. Sax. Laws, 125; Seld. 
 Orig. of the Eccl. Jurisd. of Testaments.) 
 
 And it was the opinion of Lord Holt, in 
 the case of Blackborough v. Davis (Salk. 251 ; 
 S. C. 1 Peere Wil. 50), that by the common law 
 both before and at the conquest, all the children 
 both male and female inherited as well the 
 
 * The Saxon word (ehte comprehends both lands and 
 goods. (Somn. 84.) For at that time, as appears by the 
 75th law of Canute here cited, the heirs took both ; our 
 present distinction between the real and personal estate 
 in point of descent not being then known, nor indeed any 
 where (as it seems) till after the introduction of feudal 
 tenures. Mr. Selden collects from the laws of Hen. 1, and 
 the assize of Clarendon, that in this kingdom the heirs 
 inherited chattels as well as lands, as late as the times of 
 Hen. 1, and 2, and that the law was changed about the 
 time of King John by some act of parliament, though no 
 such is now to be found. (Titles of Honour, part 2, chap. 5, 
 sect. 21.)
 
 OF PARTIBLE DESCENTS IN ENGLAND. 11 
 
 real as the personal estate of the ancestor equally CHAP. II. 
 and in like proportion. 
 
 Which authorities may be sufficient to guard 
 us against the mistake of Brooke Ch. Just, in 
 Plow. 129 b, that among the Saxons the law 
 was, that the eldest alone should inherit, and 
 that this manner of descent is continued from 
 them to us. 
 
 As the laws of Normandy divided socage Of the state 
 
 lands among; the sons, the conquest introduced fdesce n ts 
 
 ' . . i ,, at the Con- 
 
 no considerable alteration in the general law ol quest. 
 
 the land, with regard to inheritances of this 
 nature ; but on the contrary, this course of des- 
 cent stands confirmed by a law of the Conqueror : 
 Si quis intestatus obierit, liberi ejus Jicereditatem 
 cequaliter dividant (Leg. 36 ; Lamb. Sax. Laws, 
 fol. 167; Seld. in Eadmerum, 184; Somn. 83; 
 Hale's Hist, of the Common Law, 220.) 
 
 The right of primogeniture first gained footing Right of pri- 
 in this nation by the introduction of military mogeniture, 
 
 , . , . f , r how first in- 
 
 tenures ; it being convenient lor the service 01 tr oduced in- 
 the kingdom, to preserve the fee entire, to the to England, 
 intent that the tenant by knight-service, who by 
 his tenure was to attend the king in his wars, 
 might do it with more dignity and grandeur; 
 and the choice fell on the eldest son, as he was 
 soonest able to perform the duties of the fee. 
 (Hale's Hist. Com. Law, 221, 222, 223; Clem- 
 ent v. Scudamore, 6 Mod. 120; S. C. 1 P. W. 
 63; 2 Inst. 595; Wright's Tenures, 175.) 
 
 It will be impossible to settle the period of 
 this change with regard to knight-service lands, 
 
 c 2
 
 12 OF THE ANTIQUITY AND UNIVERSALITY 
 
 BOOK I. till the antiquaries are agreed, whether our 
 military tenures were in use with the Saxons, or 
 were first introduced amongst us by the Con- 
 queror. 
 
 But however this be, it seems certain that 
 socage lands remained partible long after the 
 conquest; though indeed we have no exact ac- 
 count of the precise time of the general alter- 
 ation of descents, with regard to these lands 
 throughout the kingdom; but from the silence 
 of historians it may be concluded, that it was 
 not effected at once, nor by any written law; 
 but seems to have crept in insensibly, and by 
 degrees, in imitation of the descents of knight- 
 service lands; the owners of socage tenements 
 choosing rather to deprive then 1 younger sons, 
 of their customary share of the inheritance, than 
 that their elder son, should not be in a condition 
 to emulate the state and grandeur of the military 
 tenants. 
 
 And some inconveniences, suggested to have 
 arisen from the equal division of inheritances 
 among the sons, are supposed to have assisted 
 this change. 
 
 "1st. It weakened the strength of the king- 
 " dom ; for by the frequent parcelling and sub- 
 " dividing of inheritances, in process of time 
 "they became so divided and crumbled, that 
 " there were few persons of able estates left to 
 "undergo public offices and charges." 
 
 " 2dly. It did by degrees bring the in- 
 " habitants to a low kind of country -living, and
 
 OF PARTIBLE DESCENTS IN ENGLAND. 13 
 
 "families were broken; and the younger sons, CHAP. II. 
 "who, had they not had these little parcels of 
 "land to apply themselves to, would have be- 
 " taken themselves to trades, or to civil, military, 
 " or ecclesiastical employments, neglecting those 
 "opportunities, wholly applied themselves to 
 "those small divisions of lands, whereby they 
 "neglected the opportunity of greater advan- 
 " tages of enriching themselves and the king- 
 dom." (Hales Hist, of the Com. Law, 221.) 
 
 In the reign of Henry I., according to the Hen. 1. 
 opinion of Lord Holt (Blackborough v. Davis, 
 Salk. 251; S. C. 1 P. Wil. 50), the females, in 
 case there were males, began to be excluded 
 from the real estate; but the males still in- 
 herited equally the socage land. Indeed Lord 
 Hale collects from the 70th law of that king, 
 primum patris feodum primogenitus filim habeat, 
 that though the whole land did not then descend 
 to the eldest son, yet it began to look a little 
 that way. (Hist, of Com. Law, 224.) But Mr. 
 Somner in his comment on this law of Hen. 1., 
 printed in Wilkins's Saxon Laws, page 226, in- 
 terprets the primum feodum to be only the capital 
 messuage according to Glanville, lib. 7, c. 3, 
 (infra) or what is called in the Grand Custumier 
 de Normandy, c. 26, Le Chief de Heritage, for 
 which the younger sons were to have an equi- 
 valent out of the rest of the inheritance. 
 
 But the alteration began to appear more Hen. 2. 
 plainly in the time of Hen. 2, for according 
 to Glanville, who wrote in that reign, in order
 
 14 OF THE ANTIQUITY AND UNIVERSALITY 
 
 BOOK I. to entitle the sons to take equally, it was neces- 
 sary not only that the land should be holden 
 in free socage, but further quod sit antiquitus 
 division. The whole passage is this: 
 
 " !Si plures reliquerit filios, tune distinguitur utrum ille 
 " fuerit miles seu per feodum militare tenens, an liber sock- 
 "mannus. Quia si miles fuerit vel per militiam tenens, 
 " tune secundum jus regni Angliae primogenitus filius patri 
 "succedit in totum, ita quod nullus fratrum suorum par- 
 "tem inde do jure petere potest. Si vero fuerit liber sock- 
 " mannus, tune quidem dividetur haareditas inter omncs 
 " filios, quotquot sunt, per partes aequales, si fuerit socag- 
 "ium et id antiquitus divisum; salvo tamen capitali mes- 
 "suagio primogenito filio pro dignitate aesnecije suae, ita 
 " tamen quod in aliis rebus satisfaciat aliis ad valentiam. 
 " Si vero non fuerit antiquitus divisum, tune primogenitus 
 "secundum quorundam consuetudinem totam liaereditatem 
 " obtinebit ; secundum autem quorundam consuetudinem 
 "postnatus filius haeres est." (Glanv. lib. 7, c. 3.) 
 
 So that according to this account, it is diffi- 
 cult to say, what was then the common law 
 with regard to descents of socage lands, or 
 whether every person entitling himself to them 
 by inheritance, was not obliged to set out the 
 special custom of the place. The same author 
 indeed, in other parts of his book, speaks of 
 the partibility of these lands more generally, 
 and in such a manner as may induce a belief 
 that it remained the common law at that time : 
 Plurimum item hceredum conjunctio, muliemm 
 scilicet in feodo military vel mascidorum vel 
 foeminarum in libero socagio. (Lib. 13, c. 11.) 
 And in another very remarkable passage, where- 
 in he shews that the law so greatly respected
 
 OF PARTIBLE DESCENTS IN ENGLAND. 15 
 
 this equal division among the sons, as not to CHAP. II. 
 permit the father, even in his lifetime, to prefer 
 a favourite child to any of the rest, by ad- 
 vancing him beyond his proportionable part: 
 
 " Sciendum autem, quod siquis liberum habens socagium 
 "plures reliquerit filios, qui omnes ad hcereditatem cequal- 
 "iter pro cequalibus proportionibus sunt admittendi, tune 
 " indistincte verum est quod pater eorum nihil de hgeredi- 
 " tate, vel de quaestu, si nullam habuerit haereditatem, 
 " alicui filiorum, quod excedat rationabilem partem suam, 
 "quaa ei contingit de tota haereditate paterna, donare 
 " poterit. Sed tantum donare poterit de hsereditate sua 
 "pater cuilibet filiorum suorum de libero socagio in vita 
 "sua, quantum jure successionis post mortem patris idem 
 " consecutus esset de eadem haereditate.' ' (Lib. 7, c. 1 .) 
 
 Nothing can be affirmed with any tolerable Rich. 1. 
 certainty concerning the manner of descents in 
 the reign of Richard L, there remaining little 
 of the judicial records, or other memorials of 
 the law in his time. But it is plain that the 
 right of primogeniture made every day a greater 
 progress, insomuch that in the following reign 
 of King John, it had fairly got the upper hand King John, 
 of the partible descent ; which, though not then 
 so entirely discontinued in most parts of the 
 kingdom as at present, yet did not remain the 
 general law of the land as it had formerly been, 
 but the presumption of law then was, as now, 
 that even socage lands (except in Kent), were 
 descendible to the eldest son only, unless it were 
 proved that they had always been departible; 
 for in Mich. T. 2 John (rot. 7, in dorso), Gilbert 
 de Bevill brought a writ of right de rationabili
 
 16 
 
 OF THE ANTIQUITY AND UNIVEKSALITY 
 
 BOOK I. parte* against William his elder brother for 
 lands in Gunthorpe in Rutlandshire, quce eum con- 
 tingunt de socagio quod fuit patris eorum in eadem 
 villa, William pleaded, quod socagium illud nun- 
 quam partitum fuit nee debet partiri, et hoc offert 
 defendere. And because Gilbert the demandant 
 produced no proof of the partibility, consideratum 
 est quod Will'us eat sine die, $'c. 
 
 And the partible lands in Kent stand dis- 
 tinguished from those at the common law, by 
 their present name of gavelkind in Pasch. 9, 
 Joh. rot. 7, Kane., where in assize William de 
 Valon the tenant pleads in abatement, quod 
 dimidia ilia carucata terra? est partibilis et gavely- 
 kinde, et unde Johannes (the plaintiff) fratrem 
 habet nomine Thomam qui tale et idem jus habet, 
 $c.\ and the like pleading occurs in Pasch. 
 4 Joh. rot. 6, in dorso, Kane. 
 
 Hen. 3. And this change of the law is further ap- 
 
 parent by Bracton, who wrote in the latter end 
 of the reign of Hen. 3 : 
 
 " Si liber sockmannus moriatur pluribus relictis haeredibus 
 * et particibus, si htsredita* partibilis sit et ab antique divisa, 
 1 quotquot erunt, habeant partes suas aequales ; et si uni- 
 'cum fuerit messuagium, illud integre remaneat primo- 
 'genito, ita tamen quod alii habeant ad valentiam de com- 
 'muni. Si autem hcereditas non fuerit divisa ab antiquo, 
 1 tune tota remaneat primogenito. Si autem socagium 
 ' fuerit villanum, tune consuetude loci est observanda ; est 
 'enim consuetude in quibusdam partibus quod postnatus 
 'praeferatur primogenito, et e contrario." (Bract, lib. 2, 
 fol. 76.) 
 
 * This case is misprinted in Hale's Hist, of Com. Law, 
 153; the words Demandant and Defendant being transposed.
 
 OF PARTIBLE DESCENTS IN ENGLAND. 17 
 
 And Fleta (lib. 5, c. 9, fol. 313), copies as CHAP. II. 
 usual, almost the very words of Bracton. 
 
 And it appears by the statute of Wales,* 
 (printed in the old Magna Charta, rot. parl. 12 
 Ed. 1.), that the common law of descents was 
 in this particular the same in 12 Ed. 1, as it is 
 at present : 
 
 "Aliter usitatum est in Wallia quam in Anglia quoad 
 " successionem haereditatis, eo quod haereditas partibilis est 
 " inter haeredes masculos, &c." 
 
 Having thus pursued the partition of the in- The reason 
 
 heritance from the time of the Saxons, to the f the con ; 
 
 7 tmuance 01 
 
 discontinuance of it in most parts of England, gavelkindin 
 my next inquiry shall be, how it came to pass, Kent - 
 that, notwithstanding this general alteration of 
 the course of descents, the county of Kent 
 disregarding the example of her neighbours, 
 still adheres to the old common law, by re- 
 taining the partible descent. 
 
 And it is much more easy to lay down nega- 
 tively what was not the cause of this, than 
 affirmatively what is; it being plain, that the 
 continuance of this custom in Kent stands not 
 in need of a confirmation from the Conqueror, 
 since it was in his time the common law of the 
 kingdom, as appears by his 36th law above men- Ante p. 11. 
 tioned. But it is more difficult to assign the true 
 cause; Mr. Somner finding it easier to refute 
 the fabulous story of the Kentish men's compo- 
 
 * It is noticed as an Act of Parliament in 2 Inst. 195 ; 
 Vaugh. 400, 414; Plow. 126 b; Calvin's Case, 7 Rep. 
 21 b; Hale's Hist. Com. Law, 218. 
 
 D 

 
 18 UNIVERSALITY OF PAETIBLE DESCENTS. 
 
 BOOK I. sition for their privileges with the Conqueror, by 
 means of the surprise of the moving wood of 
 Swanscombe, than to give another account in lieu 
 of that which he has destroyed ; confessing that 
 his answer must be but conjectural, neither his- 
 torians nor records giving light into this matter ; 
 but, however, as his supposition seems to be the 
 most probable, I shall insert it here. 
 
 "The Kentish men, more careful in those 
 "days to maintain their issue for the present, 
 "than their houses for the future, were more 
 " tenacious, tender, and retentive of the present 
 "custom, and more careful to continue it, than 
 Litt. sect. " generally those of most other shires were ; not 
 "because, as some give the reason, the younger 
 "be as good gentlemen as the elder brethren, 
 "but because it was land which by the nature 
 "of it appertained not to the gentry, but to the 
 "yeomanry, whose name or house they cared 
 " not much to uphold by keeping the inheritance 
 "to the elder brother." (Somn. 89, 90.) 
 
 This, I think, may suffice concerning the an- 
 tiquity of our custom; and the notion that it 
 is the remains of the old common law, is further 
 supported by this, that several of the special 
 Post lib. 2, customs of Kent evidently spring from the same 
 c. i, 3, 4. source, as shall be observed hereafter under their 
 several heads.
 
 19 
 
 CHAP. III. 
 
 IN WHAT PLACES OUT OF KENT THE CUSTOM 
 OF GAVELKIND MAY BE ALLEGED AND MAIN- 
 TAINED. 
 
 CHAP. III. 
 
 IN discussing the matter of this chapter, it 
 will be necessary to use the word gavelkind in y }de ch j 
 the modern signification, as a synonymous term 
 for the custom of partition; and taking it for 
 granted that gavelkind may properly exist out 
 of the county of Kent, let us see where the law 
 will suffer it to be set up. Where the 
 
 And first, a personal prescription to have custom may 
 lands descend according to the manner of gavel- 
 kind is not good. (Somn. 44, 46.) For sons are 
 parceners in respect of the custom of the fee or 
 inheritance, and not in respect of their persons 
 (Co. Litt. 176 a; Bract, fo. 374 a); and therefore 
 it must be alleged as the custom of the place, or 
 it cannot be supported. 
 
 Neither can this custom be laid in every place; 
 for, "in an upland town which is neither city nor 
 "borough, the custom of gavelkind or borough- 
 -english^ cannot be alleged. But these are 
 " customs which may be in cities or boroughs ; 
 "also, if land.s be within a manor, fee, or seig- 
 
 D 2
 
 20 IN WHAT PLACES THE CUSTOM, ETC. 
 
 BOOK I. "niory, the same by the custom of the manor, 
 "fee, or seigniory, may be of the nature of 
 "gavelkind, or borough-english." (Co. Litt. 
 110 b.) (a) 
 
 The custom of gavelkind may likewise be 
 alleged within a soke (Gouldsb. 105), which ac- 
 cording to that case, is a precinct to which 
 divers manors come to do suit, and (as a great 
 leet) comprehending divers other courts. Ac- 
 cording to Fleta (lib. 1, c. 47), soke signiftcat 
 libertatem, cur tenentium ; or, as Mr. Somner 
 more accurately expounds it, the Saxon word 
 soc, soke, socne, signifies a liberty, privilege, fran- 
 chise, &c., or the precinct or territory wherein 
 such liberty, &c. is exercised. (Fol. 133, 137.) 
 
 The reason of putting this restriction on the 
 custom in point of place, is the inconvenience 
 and uncertainty that might arise, if the usage of 
 every little village were suffered to change the 
 law. [See Hargr. Co. Litt. 110 b, note (2).] 
 
 (a) The Copyhold Enfranchisement Act (15 & 16 Viet, 
 c. 51), enacts, that lands enfranchised under that Act, or 
 the Acts therein recited, shall thenceforth cease to be sub- 
 ject to the customs of Borough-English, or Gavelkind, or 
 to any other customary mode of descent, (sec. 34.) But 
 the same section declares, that nothing in the Act shall 
 affect the custom of Gavelkind in the County of Kent.
 
 21 
 
 CHAP. IV. 
 
 OF THE MANNER OF PLEADING THE CUSTOM OF 
 GAVELKIND ; AND THE DIFFERENCE AS TO THIS 
 BETWEEN KENT AND OTHER COUNTIES, AND 
 BETWEEN THE GENERAL AND SPECIAL CUSTOMS. 
 
 As the custom of gavelkind is but local, and CHAP. IV. 
 not universal, he that would entitle himself by 
 it, must in his declaration, or if he be a de- Manner of 
 
 fendant, in his plea, make mention of the custom P le * din S tho 
 1 ' custom ot 
 
 whereon he founds his right to the land ; as to gavelkind. 
 say, that the land is of the custom of gavelkind, 
 or, as is the more usual way of pleading, that 
 it is of ike nature and tenure of gavelkind. (5 Ed. 
 4, 8 b; Fitzh. Custom, 4; 21 Ed. 4, 57 b; 22 
 Ed. 4, 32 b; Ewer v. Astwike, 1 And. 192; Co. 
 Litt. 175b; [Litt. sec. 265.]) Accordingly, it 
 was determined in Humphry v. Bathurst (1 Lutw. 
 754), that the Court could not take notice that 
 lands in Kent were of the nature of gavelkind, 
 without something pleaded, or found in the 
 record concerning it. 
 
 But, if the lands be in Kent, it is not required Need not be 
 that this custom be pleaded in a special and P lea< ? ed in a 
 
 r * special man- 
 
 prescnptive manner ; for the judges of the com- ner, if the
 
 22 OF THE MANNER OF PLEADING 
 
 BOOK I. mon law pay a particular respect to the customs 
 
 of eravelkind and borough-english above all 
 lands be in .. l , . , f -, 
 
 Kent. others, by taking notice of the nature ot them 
 
 when they are generally alleged, for they are 
 as a general law. (5 Ed. 4, 8 b* ; Fitzh. Custom, 
 4; 21 Ed. 4, 56 b; Co. Litt. 175 b; Launder v. 
 Brooks, Cro. Car. 562 ; Wiseman v. Cotton, 1 Sid. 
 138; Humphry v. Baihurst, 1 Lutw. 754; Clem- 
 ents v. Scudamore, Salk. 243 ; S. C. 6 Mod. 120 ; 
 2 Ld. Raym. 1024 ; 1 P. W. 63 ; [Per Tindal, 
 C. J. in Crosby v. Hetlierington, 4 Man. and Gr. 
 946 ; Per Denman, C. J. in Doe v. Clift, 12 Ad. 
 and Ell. 578.]) And, therefore, in demanding 
 gavelkind land, a man need not prescribe in 
 certain, and shew that the town, borough, or 
 city in Kent, where the lands be, is an ancient 
 town, borough, or city, and that the custom has 
 been there time out of mind, that lands within 
 the same town, borough, or city, should descend 
 to all the heirs males ; but it is sufficient to shew 
 the custom at large, and to say that the lands 
 lie in Kent, and are of the nature of gavelkind. 
 (Lamb. Peramb. |~-f .) 
 
 Such therefore is the diversity between a 
 general mention of the custom, and no mention 
 at all ; nor is there any book to the contrary of 
 this, but Godb. 55. where it is said, that in the 
 prescription of gavelkind, the party ought to 
 
 * Where the book is misprinted, nemi being left out 
 before the word prescribe, as is agreed in Wiseman v. 
 Cotton. (1 Sid. 138; S. C. Raym. 77.)
 
 THE CUSTOM OF GAVELKIND. 23 
 
 shew that the land is partible, and has been CHAP. IV. 
 parted. 
 
 But this is certainly not law, unless it be con- 
 fined merely to such lands of this nature, as lie 
 out of the county of Kent ; in which places in- 
 deed the plea ought to run, that the land within 
 the fee, &c., a toto tempore, fyc. partibilia fuerunt 
 et partita, $c. as being against common right ; 
 and the customary and actual partition is neces- 
 sary to be pleaded as well as proved (Somn. 
 48,* 53 ; Randal v. Writtle, 3 Keb. 216, per Hale, 
 Ch. J.) ; and 2 Ed. 3, 12, concerning the lands 
 of the fee of the Marshal in Norfolk; 5 Ed. 
 3, 64, concerning lands within the fee of Gelfy ; 
 8 Ed. 3, 42 b, concerning lands lying in Sax- 
 ham (near Bury) in Suffolk of the fee of Per- 
 ting ; and 9 Ed. 3, 40 b, of lands within the fee 
 of Richmond are accordingly ; in all which cases, 
 the parties were compelled to shew between 
 whom the tenements had been parted, for that 
 otherwise they could not draw them out of the 
 course of the common law, except in gavelkind, 
 where it is the usage of the whole county, and 
 the tenements are departible of common right. 
 Indeed in 9 Ed. 3, 27, it is holden not to be 
 necessary to aver the actual partition ; because 
 having said that the lands are partible, it is the 
 same tiling, the partibility being a consequence 
 of their having been actually parted. And it 
 seems the actual partition need not be pleaded 
 in the very lands in question, though out of the 
 county of Kent, but it may be sufficient if shewn
 
 24 
 
 BOOK I. in other lands of the same nature within the fee, 
 &c. (Vide Fitzh. Prescription, 53 ; Bro. Custom, 
 66; 2 Ed. 3, 12; 3 Ed. 3, 38 ; 5 Ed. 3, 64; 
 Robert le Chapeleyris case, Itin. Rotel. 14 Ed. 
 1, rot. 2, in dorso, rex.) 
 
 Customs of From the judicial knowledge of our custom it 
 gavelkind follows, that if heirs in gavelkind bring an action 
 
 and borough ' n n . , - 
 
 can- ancestral, and declare on the custom, it cannot be 
 
 not be tra- traversed that there is no such custom as gavel- 
 kind, for it is the common law where it is used ; 
 and it is of record, and known at the common 
 law, and therefore twelve men shall not make 
 trial of it. So, borough-english is in divers 
 towns ; and, therefore, a man shall not traverse 
 that there is no such custom as borough-english, 
 for it is a custom by the common law. (Long 
 Quinto, Ed. 4, 31 a; 22 Ed. 4, 32 b.) 
 
 But this general doctrine, that the courts of 
 law will take notice of the customs of gavelkind, 
 though not specially pleaded, must be taken 
 with a distinction ; for the better understanding 
 of which, as well as for the order of the fol- 
 lowing parts of this treatise, it will be necessary 
 to divide the customs incident to Kentish gavel- 
 kind lands into, 
 
 1. The general, 
 
 Customs of 2. The special customs of gavelkind. 
 
 gavelkind, Or, according to the more prevailing notion at 
 general and ^ d ^ 
 special. J 
 
 1. Such as are parcel of and comprehended 
 
 under the name of Gavelkind. 
 
 2. Such as are collateral to Gavelkind.
 
 THE CUSTOM OF GAVELKIND. 25 
 
 The first are such as, according to the opinion CHAP. IV. 
 of the judges in the case of Wiseman v. Cotton 
 (1 Sid. 138; S. C. 1 Lev. 80), are absolutely Ante, p. 7. 
 requisite and essential to the nature of these 
 lands, as is partibility among the males ; which 
 of itself, say they, will constitute gavelkind, and 
 without which it cannot exist. The special or 
 collateral customs, are such as are not necessary 
 to the essence of gavelkind, nor, as they think, 
 properly included under that term, and without 
 which it obtains in many places ; but are certain 
 customary privileges annexed to all lands of 
 this nature within the county of Kent, and are 
 now as follow: 1. That the husband shall 
 be tenant by the curtesy of a moiety, whether 
 he has issue or no. 2. That the wife shall be 
 endowed of a moiety. 3. The customary ward- 
 ship of the infant, and that he shall have power 
 to alien his lands as soon as he is out of that 
 custody. 4. The father to the bough, and the 
 son to the plough. 
 
 The propriety of this division, and the use Courts of 
 now intended to be made of the distinction, ti( ^ onl O f 
 viz. That the courts of law take judicial no- the general, 
 tice only of the general, and not of the special a " d no * , of 
 
 . J the special 
 
 qualities, may be collected from the cases of customs of 
 Launder v. Brooks (Cro. Car. 562); and Wise- gavelkind. 
 man v. Cotton. (1 Lev. 79; S. C. 1 Sid. 137, ]>ost ' ch - 5 * 
 138; Raym. 76.) 
 
 In both which, as also in the case of Browne 
 v. Brookes (2 Sid. 153), it is holden, that though 
 it be sufficient for him, that would entitle him- 
 
 E
 
 26 OF THE MANNER OF PLEADING, ETC. 
 
 BOOK I. self to lands by descent, according to the custom 
 of gavelkind, to say, that the land is in Kent, 
 and of the nature of gavelkind, because the 
 common law takes notice what the custom is; 
 yet the courts of law cannot take cognizance 
 of the particular customs incident to Kentish 
 gavelkind, (as the custom to have dower of a 
 moiety, or to be tenant by the curtesy without 
 issue, &c.) unless they are specially pleaded, as 
 from time whereof, &c. 
 
 And Holt, Ch. J. in Clements v. Scudamore 
 (Salk. 243), says the same of special customs in 
 borough-english lands, that they must be pleaded 
 by those that would take advantage of them, 
 and must be taken by the court to be as they 
 are set forth by the pleading, and not otherwise.
 
 27 
 
 CHAP. V. 
 
 WHAT LANDS AND TENEMENTS IN KENT ARE OF 
 THE NATURE OF GAVELKIND : OF THE EFFECT 
 OF THE ALTERATION OF THE TENURE, AND OF 
 THE DISGA YELLING STATUTES. 
 
 As the special usages and laws of particular CHAP. V. 
 places, tend in the instances wherein they pre- 
 
 j c c x-u i A11 lands m 
 
 vail, to defeat the course 01 the common law, K ent pre . 
 the general rule is, that the proof of a custom is sumed to be 
 turned upon him that would take advantage of gave m ' 
 it ; but it is a peculiar favour allowed by the 
 courts of law to this custom, that all lands what- 
 soever, lying in the county of Kent, shall be 
 presumed to be of the nature of gavelkind, till 
 the contrary be made to appear. (2 Ed. 3, 12; 
 3 Ed. 3, 38 ; 8 Ed. 3, 42 ; 5 Ed. 3, 64 ; Gouge 
 v. Woodwin, Mich. T. 8 Geo. 2, 1734. B. E., at 
 a trial at bar upon an issue whether lands parcel 
 of the manor of Dartford in Kent, were of the 
 nature of gavelkind; Wiseman v. Cotton, 1 Sid. 
 138 ; Browne v. Brookes, 2 Sid. 153 ; Randal v. 
 Writtle, 3 Keb. 216; [Willis v. Lucas, I P. W. 
 475 ; Burridge v. Sussex (Earl of), 2 Ld. Raym. 
 1292; Preston v. Jervis, 1 Vern. 325.]) (b) 
 
 (b) But see ante, p. 21. 
 
 E 2
 
 28 WHAT LANDS IN KENT ARE 
 
 BOOK I. And this is the reason, why the books call 
 gavelkind by a higher appellation than is given 
 to any other custom, the COMMON LAW OF KENT. 
 (Gouge v. Woodwin, Mich. T. 8 Geo. 2; Lamb. 
 Iff; 5 Ed. 4, 8; Somn. 44.) 
 
 V.ante,p.23. But the same favour is not allowed to gavel- 
 kind in any other county, but it lies upon the 
 party to prove a customary partition in the 
 place. (Somn. 53; Randal v. Writtle, 3 Keb. 
 216, per Hale, Ch. J.) For in no county of 
 England, lands at this day be partible among 
 the males of common right, saving in Kent only. 
 (3 Ed. 3, 38 ; Co. Litt. 140 a.) 
 
 The presumption therefore being thus, it is 
 natural to enquire how the contrary may be 
 proved ; and that will appear by shewing what 
 lands really are of the nature of gavelkind, and 
 what not. 
 
 All ancient As to this, it is certain that all lands in the 
 socage lands county of Kent, which were anciently and origi- 
 na ^H holden in socage tenure, are of the nature 
 of gavelkind. (Lamb. Peramb. |-fy; Somn. 50, 
 90; 9 H. 3, Fitzh. Prescription, 63 ; Kirby Lees 
 Case, Palm. 163.) 
 
 Actual par- Mr. Somner, p.p. 49, 50, and Mr. Lanibard in 
 tition not n i s Peramb. p. ff f , are both of opinion, that 
 gavelkind in this county is to be tried by the 
 manner of the socage services, and not by the 
 touch of some former partition; and that though 
 the land has never been parted in deed, yet if it 
 remains partible in its nature, it may be parted 
 whenever there shall be occasion. (And see Bro. 
 Custom, 66; Fitzh. Prescription, 53.)
 
 OF THE NATURE OF GAVELKIND. 29 
 
 But all lands, tenements, and fees in Kent, CHAP. V. 
 originally hoi den by ancient tenure of knight- ~ 
 service, are descendible to the eldest son only, knight-ser- 
 according to the ordinary course of the common vice lands in 
 law, and are not of the nature of gavelkind, nor 
 partible by order of this custom, (c) (Lamb. 
 Peramb. |f|, fff; Somn. 90; Mich. T. 3 Joh. 
 rot. 13, in dorso; 9 H. 3, Fitzh. Prescription, 
 63; 55 H. 3, Itin. Kane. rot. 20; Hil. T. 10 Ed. 
 1, C. B. rot. 27; Zte Beggbrotis Case, 26 H. 8, 4 
 b; Stat. 31 Hen. 8, c. 3; 2 Inst. 595; Kirby 
 Lees case, Palm. 163; Wiseman v. Cotton, 1 Sid. 
 138; Hale's Hist, of Com. Law, 223; Gouge v. 
 Woodwin, Mich. T. 8 Geo. 2. B. R.) The rea- 
 son whereof was, that lands and tenements hoi- 
 den by knight-service, which anciently belonged 
 to the nobility and gentry, should not be carried 
 by descent into many hands, whereby the service 
 for defence of the realm should be lost or di- 
 minished, and the owners (the lands being thus 
 
 (c) On this passage Mr. Sandys remarks, "I am inclined 
 to think that the term, 'ancient knight-service,' imports Of knight- 
 such lands only as were held by military tenure, or knight- service, 
 service, before the year 1189, (the first year of K. Rich. 1.) 
 the date of legal memory; and that ' ancient socage tenure, ' 
 implies all the lands in Kent, which had not been converted 
 into military tenure prior to A.D. 1189." (Consuet. Kan. 
 241.) But in Hougham v. Sandys (2 Sim. 154), V. C. 
 Shadwell observed, " In order to make that which is a 
 freehold of inheritance, descend according to the law of 
 Kent, it must have been freehold of inheritance, which 
 could be presumed to have been such at the time of the 
 Conquest." And see per Mansfield, Ch. Just, post, note (e).
 
 30 WHAT LANDS IN KENT ARE 
 
 BOOK I. divided), become not able to maintain the coun- 
 tenance of their order and degree. (2 Inst. 595.) 
 As therefore, the right understanding of what 
 is knight-service, cannot but be of use towards 
 discerning what lands in this county, are exempt 
 from the custom of gavelkind, it may not be an 
 improper digression to observe, that a tenure in 
 chivalry was created, not only by an express re- 
 servation of some military service, but also if the 
 king had before the stat. 12 Car. 2, c. 24, [which 
 abolished the tenure of knight-service, and con- 
 verted it into free and common socage], granted 
 lands in fee without reserving any tenure; or, if 
 he had granted the land by express words absque 
 aliquo inde reddendo, they had in both cases by 
 operation of law been holden by knight-service 
 in capite, for that is best for the king. ( Wheelers 
 case, 6 Rep. 6 b; Lowe's case, 9 Rep. 123.) 
 
 So, if before the stat. 2 & 3 Ed. 6, c. 8, it 
 had been found by office, or since that time, and 
 before the stat. 12 Car. 2, c. 24, on a melius in- 
 quirendum, that de quo vel quibus, vel per quce ser- 
 vitia, the lands were holden juratore signorant, this 
 shall be taken to be a tenure (by knight-service) 
 in capite, for the best shall be taken for the king. 
 (Estwicke's case, 12 Rep. 135; 2 Inst. 692; [see 
 Doe v. Red/em, 12 East, 96.]) 
 
 So, if upon a melius inquirendum, it were found 
 to be a tenure of the king, ut de manerio, fyc., sect 
 Noprescrip- per quce servitia ignorant, this is a tenure by 
 tion against k m ght-service, as of a manor. (2 Inst. 692.) 
 
 gavelkind ' 
 
 in Kent. But if the king on his grant reserve a rose
 
 OF THE NATURE OF GAVELKIND. 31 
 
 pro omnibus servitiis, this is a tenure in socage. CHAP. V. 
 (Wheelers case, 6 Rep. 6 b.) 
 
 Seeing therefore that an actual partition of the 
 lands is not necessary to be proved, let us con- 
 sider what will be the effect of a contrary usage 
 shewn on the other side; and first, whether any 
 particular person can prescribe in a contrary 
 course of descent. And I take it, that a personal 
 prescription, that a man and his ancestors, &c., V.ante,p.l9. 
 have time out of mind, inherited socage lands in 
 Kent, by descent to the eldest son, can no more 
 prevail against the common law of the county, 
 than in other shires a contrary prescription by 
 the younger sons, will make the lands descendible 
 according to gavelkind. V. Robert le 
 
 If lands in gavelkind descend, and the eldest CAapelyn't 
 son has always entered claiming the whole, RotT'l^Ed. 
 so that they never were parted, for that the l, rot. 2, in 
 younger brothers never put in their claim, but dorso ' Rex - 
 they now come to claim; it shall be no plea to 
 say, that the eldest son has always had the whole, 
 absque hoc, that the younger brothers never had N O U sae in 
 anything;, against the usages which are so general, Kentagainst 
 
 4-1* 1 
 
 that lands of the nature of gavelkind are parti- CU g t o^of a 
 ble. (Mich. T. 16 Ed. 2, Fitzh. Prescription, gavelkind. 
 52; Lamb. Peramb. fff.) 
 
 If a personal prescription cannot overthrow 
 the custom, what then will be the force of a con- 
 trary usage in any whole town or village within 
 this county (especially if it be not an upland 
 town but a borough), whose socage lands may 
 have always been inherited by the eldest son,
 
 32 WHAT LANDS IN KENT ARE 
 
 BOOK I. and the descent in gavelkind nevei practised 
 
 there? Mr. Lambard ff-f, holds, that a city, 
 
 town, or borough, can no more be exempted for 
 
 the only default of putting this custom in use, 
 
 Of the effect than the eldest son in the case before may pres- 
 
 of the alter- cribe against his younger brethren; and this, he 
 
 p . O / 
 
 tenure* from savs j was m his time the resolute and settled 
 knight-ser- opinion, not only of the best professors and prac- 
 vice to so- tisers, but of the justices and judges of the law. (d) 
 I have confined the description of gavelkind 
 lands in this county, to lands originally of socage 
 Fitzh. Pre- tenure, for a tenure of this kind newly or lately 
 scription,64. created, cannot entitle to the benefit of the cus- 
 tom, which in the nature of it must have con- 
 tinued time out of mind; and, therefore, if lands 
 originally holden by military services come into 
 the hands of the crown, and are afterwards 
 granted out again to be holden in socage, this 
 will not reduce them to the nature of gavelkind, 
 but they will remain as before descendible to the 
 eldest son only. (Lamb. Peramb. |-f^; Gouge v. 
 Woodwin, Mich. T. 8 Geo. 2, B. B.) 
 
 And for the same reason, the statute 12 Car. 
 2, c. 24, which reduced all military tenures to 
 free and common socage, being made within time 
 of [legal] memory, cannot be said to make all the 
 lands in Kent, holden originally by knight-service, 
 to be now divisible among the males generally, 
 
 (d) The custom of Borough-English h5s from time imme- 
 morial, prevailed in the manor of Westerham in this county. 
 But see ante, note (a).
 
 OF THE NATURE OF GAVELKIND. 33 
 
 if the custom of gavelkind never before attached CHAP. V. 
 upon them. (Gouge v. Woodwin, supra.) 
 
 Nor can gavelkind be created, or lands made 
 partible at this day, after the manner of this cus- 
 tom, in derogation of the common law, even by 
 the King's express grant for that purpose; and 
 accordingly it is laid down (37 H. 6, 27 a, and 
 per Coke, 1 Rolle's Rep. 46), that the King can- 
 not by his letters patent, grant that lands shall 
 be of the nature of borough-english, and de- 
 scendible to the youngest son. For customs re- 
 ceiving their perfection from the continuance of 
 time, come not within the compass of the King's 
 prerogative. (Coke's Copyholder, sect. 31.) 
 
 Nor, on the other hand, will every alteration Or from 
 
 of the socage tenure within tune of memory, soc . a s e **> 
 
 JJ kmght- 
 take away or abrogate the custom ; and there- service. 
 
 fore, it has been adjudged in the King's Bench, 
 that if a man seized of land of the nature of 
 gavelkind, makes a gift in tail to hold of him 
 by knight-service, this land shall be partible not- 
 withstanding. (26 Hen. 8, 4 b.) And by Mon- 
 tague, Ch. J., where land in Kent was holden 
 in socage in gavelkind in the beginning, and now 
 much of it is holden in knight-service, yet the 
 custom of gavelkind remains ; for it runs with 
 the land, and is by reason of the land. (Dalis. 
 12, 23.) 
 
 Mr. Lambard says, that if lands of ancient Ofthe ^ng'3 
 
 power to 
 socage-service come to the crown, and be de- change the 
 
 livered out again to be holden either of the descent of 
 Prince in capite, or by knight-service of any f a ^ s> l 
 
 F
 
 34 WHAT LANDS IN KENT ABE 
 
 BOOK I. manor, they ought to descend according to the 
 custom, notwithstanding the tenure be altered. 
 (Peramb. |~f^ ; and see Dalis. 23.) 
 
 3 Keb. 216, And the same is the opinion of Hale, Ch. J. 
 by the same ^ Hg Higt f ^ Com< L 223 ._ Even in 
 J udge. 
 
 Kent, if gavelkind lands escheat, or come to the 
 
 crown by attainder, or dissolution of monasteries, 
 and be granted to be holden by knight-service, 
 or per baroniam, the customary descent is not 
 changed (#), neither can it be but by act of par- 
 
 (e) The case of Doe d. Lushington v. The Bishop of 
 Llandaff (2 Bos. & P. New Rep. 491 ; S. C. 2 Eag. & 
 You. 557), was decided in conformity with this opinion. 
 It was there determined, that the original tenure of the 
 glebe lands (if there were any), of the Rectory of Rod- 
 mersham in Kent, which Rectory had formerly been part 
 of the possessions of the Priory of St. John of Jerusalem 
 in England,* and upon its dissolution, had been granted by 
 King Hen. 8, to one John Pordage, his heirs and assigns 
 in capite, by knight-service, had not been altered by their 
 appropriation to the religious house ; but that when granted 
 by the Crown, the lands became descendible according to 
 the custom of gavelkind. Ch. Just. Mansfield, in delivering 
 the judgment of the Court, observed, " With respect to any 
 land which may belong to the Rectory, it will fall under a 
 different consideration from the tithe. It is said, that the 
 land is not to be considered as descendible according to the 
 custom, because it had been long in the hands of an eccle- 
 siastical corporation; and that in ancient times, the land 
 might not have been gavelkind when it first came to this 
 body. But I think that it is impossible to distinguish the 
 lands belonging to this Rectory, from other lands in Kent. 
 The law of gavelkind is unlike all other customs, it is not 
 
 * Hasted says, that this Eectory was given to the Priory by King 
 Henry 2. (Hist, of Kent, vol. 6, p. 120, 2nd edit.)
 
 OF THE NATURE OF GAVELKIND. 35 
 
 liarnent, for it is a custom fixed to the land (f). CHAP. V. 
 And accordingly we see, that those who have 
 
 good if it begins only just before the reign of Richard tho 
 First. This custom existed long before any such customs, 
 and almost before any History. In some places it is called 
 the Common Law of Kent. * * * The appropriation 
 in subsequent times (after the Conquest), of any portion of 
 land to a religious house will not alter its tenure. While in 
 possession of the House, it could go to no children, but as 
 soon as it was given up by the religious house, and granted 
 by the Crown, it must have been holden according to its 
 ancient tenure. The custom of gavelkind then attached, 
 and, amongst other things, the descent to all the sons equally." 
 
 There is, however, in the appendix to Somner on Gavel- 
 kind, No. 5, p. 178, 2nd. edit, a record of a suit instituted 
 in 25 Hen. 3, by one Burga, late wife of Peter de Bendings, 
 against the Prior of the Holy Trinity in Canterbury, which 
 was decided before the Justices itinerant that year (1241), 
 at Canterbury in favor of the Prior; the finding of the 
 Jury in which suit, appears to be at variance with the de- 
 cision of the Court of Common Pleas in Doe v. The Bishop 
 of Llandajf. 
 
 The suit was intituted by the plaintiff, to recover a moiety 
 of the Manor of Wells, which she demanded as her free- 
 bench, whereof her husband had endowed her. The Prior The Prior 
 pleads, " quod habet manerium illud ex dono praedecessorum pleads, that 
 "Domini Regis, qui illud manerium aliquando tenuerunt. tll g 
 
 "Et quod illud manerium dederunt Deo et ecclesise S. his church, &c. 
 " Trinitatis, adeo libere sicut manerium illud tenuerunt in neve^afte^ 8 
 " puram ac perpetuam eleemosynam ; ita quod, illud mane- wards parted, 
 " rium nunquam postea partitum fuit, nee est partibile. Et " or P art ible, 
 " dicit, quod Dominus Rex qui manerium illud dedit praede- 
 " cessoribus suis, non tenuit illud nomine Gavelkinde." To The Deman- 
 thia plea the Demandant (Burga) replies, " quod proedictum dant replies, 
 " manerium est Gavelkinde, et partibile, &c.," and tenders r 
 
 issue thereon, which the Prior denies and joins issue. The and partible. 
 Jury find "quod prasdictum manerium fuit quondam mane- The Jury find 
 
 F 2
 
 36 
 
 BOOK I. been inclined to disgavel their lands, have ap- 
 plied to the legislature for that purpose. 
 Of gavel- But though the change of the tenure be not 
 
 "I J I 1 
 
 in^h Ib 1 iids a total extinguishment of the custom, yet it is 
 of the crown, still another question, whether if lands of this 
 nature fall into the hands of the King, who is 
 the sovereign lord of all lands, and who can 
 himself hold by no tenure, this may not cause a 
 temporary suspension of the custom, during the 
 continuance of such unity of possession. 
 
 As to this, Mr. Lambard in his Peramb. ---, 
 makes a distinction, " That if lands of the nature 
 "of gavelkind come into the King's hands by 
 " purchase, or by escheat as holden of the manor 
 "of A. which he purchased, after his death all 
 "his sons shall inherit and divide them. But if 
 " they come to him by forfeiture for treason, or 
 "by gift in parliament, so that he is seized of 
 " them in jure coronce, then his eldest son only, 
 
 thatthemanor "rium Domini Regis. Et quod datum fuit Deo et Ecclesiae 
 
 veUtindTnof*" " ^' Trinitatis, in liberam, puram, et perpetuam eleemosynam. 
 
 partible, &c. " Ita quod, manerium illud nunquam fuit Gavelkinde, nee 
 
 Judgment. " partitum, nee est partibile, &c." " Ideo consideratum est, 
 
 " &c. quod Prior teneat, &c. et eat sine die, et praedicta Bur- 
 
 "ga in misericordia, &c." (See Hasted's Hist, of Kent, tit. 
 
 " Westwell," vol. 7, p. 412, et seq: 2nd edit.) 
 
 (f) In Minet v. Leman (20 Beav. 269), it was held by 
 the M. E., that where gavelkind lands in Kent, are ex- 
 changed for common socage lands in another County, under 
 the provisions of the General Inclosure Act (8 & 9 Viet, 
 c. 118), the tenures of the exchanged lands are not altered. 
 But the Lords Justices on appeal, thought the point 
 doubtful.
 
 OF THE NATURE OF GAVELKIND. 37 
 
 "which shall be King after him, shall enjoy CHAP. V. 
 "them." 
 
 But there is no foundation in law for this dis- 
 tinction; for, whatever way the King attain the 
 possession of lands, as if he purchase lands to 
 him and his heirs, he is seized in jure coronce, 
 and if he purchase lands of the custom of gavel- 
 kind, and dies having divers sons, the eldest 
 only shall inherit these lands. (Co. Litt. 15 b; 
 per Twisden, Just, in Wiseman v. Cotton, I Sid. 
 138; S. C. Raym. 77; Willion v. Lord Berkley, 
 Plow. 247.) 
 
 Nor is it at all strange, that the personal dig- 
 nity of the King should supersede this custom, 
 since it will cause the same change of the de- 
 scent in lands at common law; for the eldest 
 daughter or sister of a King shall inherit all his 
 fee-simple lands; as was the case of Queen Mary. 
 (Co. Litt. 15 b.) 
 
 But if gavelkind land descends to the King 
 and his brother (which must be understood of a 
 descent from a subject), each of them shall take 
 a moiety; for if the King should take the whole, 
 he would do a wrong to the other, which his 
 prerogative will not extend to. (Willion v. Lord 
 Berkley, Plow. 247.) (g) 
 
 Which agrees with the opinion of Moile, Just. 
 (35 II. 6, 28 a), that if lands in gavelkind descend 
 
 (g) In a M.S. note by Ch. Just. Hale, to Co. Litt. 15 b, 
 it is said, that purchases made before accession of the 
 Crown, or descents from collateral ancestors after accession 
 of the Crown, vest in a natural capacity.
 
 38 WHAT LANDS IN KENT AKE 
 
 BOOK I. to the King and his brother, the King shall be in 
 the same condition as another person, and he 
 and his brother shall inherit jointly. Wherein 
 is to be noted the diversity between a descent 
 from a subject to the King, and a descent to- 
 gether with the crown. 
 
 But the possession of the crown of lands 
 originally gavelkind, and a contrary course of 
 descent by reason thereof, destroys not, but only 
 suspends the custom, and upon a separation by 
 grant of the lands to a subject, it immediately 
 revives, and the lands are again partible among 
 the males. (Gouge v. Woodwin, Mich. T. 8 Geo. 
 2, B. B,; per Twisden, Just, in Wiseman v. Cot- 
 ton, 1 Sid. 138; 2 ibid, 83; per Browne, Just. 
 Lamb. Peramb. |-|f ; and the authorities before 
 cited page 34.) 
 
 The owner of lands cannot by his grant, 
 Tenant can- change the course of the descent ; for, if a man 
 not alter the se i zec [ o f lands in gavelkind, give or devise them 
 descent ot i 7 T i i i n 
 
 gavelkind or to his eldest heirs, he cannot thereby alter the 
 
 borough-en- customary inheritance; but the law, utres magis 
 
 glish lands. ^^ rejects the adjective eldest. (Co. Litt. 27.) 
 
 And the same law is of borough-english. 
 
 (Dyer 179 b, pi. 45; [see Dav. 31 a, 36 b; 
 
 Hargr. Co. Litt. 10 a, note (3); Roe v. Aistrop, 
 
 2 W. Black. 1228.]) 
 
 Upon the whole it may be concluded, that the 
 
 nature of gavelkind land cannot be entirely 
 Nothing can changed, nor the custom extinguished beyond a 
 the'custom P oss ikili tv f reviver, neither by alteration of 
 of gavelkind the tenure, nor by possession of the King,
 
 OF THE NATURE OF GAVELKIND. 
 
 39 
 
 nor by the act of the party, nor indeed by 
 any ordinary means, but by Act of Parliament 
 only. 
 
 Which naturally leads me to consider the 
 statutes made for disgavelling lands in Kent, and 
 the effects of them. 
 
 The several statutes made for this purpose are, 
 31 Hen. 8, c. 3 (h), and six private Acts not 
 printed in the statute books, one in 11 Hen. 7, 
 another 15 Hen. 8, another 2 & 3 Ed. 6, another 
 1 Eliz., another in the 8th year of the same 
 reign, and the last in 21 Jac. 1.* 
 
 (h) Mr. Hargrave says (Co. Litt. 140 b, note (2), that 
 the stat. 31 Hen. 8, c. 3, is the only disgavelling statute 
 in print. 
 
 * The following are the names of those persons, whose 
 lands in Kent have been disgavelled by Acts of Parliament. 
 
 11 Hen. 7. [A.D. 1495.] 
 Sir Rich. Guldeford, Knt. 
 
 15 Hen. 8. [A.D. 1523.] 
 Sir Hen. Wyat, Knt. 
 
 31 Hen. 8. [c. 3. A.D. 1539.] 
 Tho. Lord Cromwell, 
 Tho. Lord Burghe, 
 Geo. Lord Cobham, 
 Andrew Lord Windsore, 
 *Sir Tho. Cheyne, Knt. 
 Sir Christ. Hales, Knt. 
 Sir Tho. Willoughby, Knt. 
 *Sir Anth. Seintleger, Knt. 
 *Sir Edw. Wootton, Knt. 
 Sir Edw. Bowton, Knt. 
 *Sir Roger Cholmley, Knt. 
 
 Sir John Champneys, Knt. 
 
 *John Baker, Esq. 
 
 Reignold Scot, 
 
 *John Guldeford, 
 
 *Tho. Kemp, 
 
 Edw. Thwaites, 
 
 *William Roper, 
 
 Anth. Sandes, 
 
 Edw. Isaac, 
 
 Percival Harte, 
 
 Edw. Monyns, 
 
 Will Whetnall, 
 
 John Fogg, 
 
 Edm. Feti place, 
 
 Tho. Hardres, 
 
 Will. Waller, 
 
 *Tho. Wilford, 
 
 CHAP. V. 
 
 but an Act of 
 Parliament. 
 
 The disga- 
 velling sta- 
 tutes and ef- 
 fectsofthem.
 
 40 
 
 WHAT LANDS IN KENT ARE 
 
 BOOK I. The words made use of by the statute 31 
 Hen. 8, c. 3, are, That all manors, lands, tene- 
 
 *Tho. Moyle, 
 *Tho. Harlakenden, 
 Godfrey Lee, 
 * James Hales, 
 Henry Hussey, 
 Tho. Roydon. 
 
 2 & 3 Ed. 6. [A.D. 1548.] 
 *Sir Tho. Cheyney, Knt. 
 *Sir Anth. Seintleger, Knt. 
 Sir Robt. Southwell, Knt. 
 *Sir John Baker, Knt. 
 *Sir Edw. Wootton, Knt. 
 *Sir Roger Cholmley, Knt. 
 *Sir Tho. Moyle, Knt. 
 Sir John Gate, Knt. 
 Sir Edm. Walsingham, Knt. 
 *Sir John Guldeford, Knt. 
 Sir Humf. Style, Knt. 
 *Sir Tho. Kempe, Knt. 
 Sir Martyn Bowes, Knt. 
 *Sir James Hales, Knt. 
 Sir Walter Hendley, Knt. 
 Sir Geo. Harper, Knt. 
 Sir Hen. Istey, Knt. 
 Sir Geo. Blage, Knt. 
 *William Roper, 
 *Tho. Wylforde, 
 *Tho. Harlakenden, 
 Tho. Colepepper, of Bedge- 
 
 bury, 
 John Colepepper, of Ailes- 
 
 forde, 
 
 Tho. Colepepper, son of the 
 
 said John, 
 Will. Twisenden, 
 Tho. Darrel, of Scotney, 
 Robert Rudstone, 
 Tho. Robertes, 
 Stephen Darrell, 
 Rich. Covarte, 
 Christ, Blower, 
 Tho. Hendley, 
 Tho. Harman, 
 Tho. Lovelace, 
 Reignald Peckham, 
 Herbert Fynche, 
 William Colepepper, 
 John Mayne, 
 Walter Mayne, 
 Tho. Watton, 
 John Tufton, 
 Tho. White, 
 Peter Hay man, 
 Tho. Argal. 
 
 1 Eliz. [A.D. 1558.] 
 Thomas Browne, of West- 
 
 becheworth in Surrey, 
 Geo. Browne. 
 
 8 Eliz. [A.D. 1565.] 
 Tho. Browne, Esq. 
 
 21 Jac. 1. [A.D. 1623.J 
 Tho. Potter, Esq. 
 Sir Geo. Rivers, Knt. 
 Sir John Rivers, Knt. 
 
 N.B. Twelve of the names in the stat. 2 & 3 Ed. 6, 
 [marked thus *J are the same as in the stat. 31 Hen. 8, c. 3.
 
 OF THE NATURE OF GAVELKIND. 41 
 
 ments, woods, pastures, rents, services, reversions, CHAP. V. 
 and remainders, advowsons, and all other here- 
 ditaments whatsoever, lying and being within 
 the county of Kent, of which the persons men- 
 tioned in the Act were at that time seized, 
 which then were of the tenure and nature of 
 gavelkind, and before that time had been de- 
 parted or departible between the heirs male 
 by the custom of gavelkind, should from thence- 
 forth be clearly changed from the said custom, 
 tenure, and nature of gavelkind, and should 
 from that time in no wise be departed or de- 
 partible by the said custom of gavelkind between 
 the heirs male, but should remain, revert, abide, 
 descend, come, or be, after and according as 
 lands, tenements, &c., do or may descend, re- 
 main, &c., according to the common law of this 
 realm, and as other manors, lands, and tenements, 
 being in the said county of Kent, which never 
 were held by service of socage, but then were, 
 and always had been golden by knight-service, 
 do descend, &c., and in like manner to descend, 
 and be descendible, remain, revert, come, and 
 be inheritable, to the heir or heirs, after and ac- 
 cording to the said common laws, &c. And 
 that all and singular the said lands, tenements, 
 hereditaments, &c., should from thenceforth be 
 accepted, taken, inherited, deemed, and judged, 
 to be like as lands, tenements, &c., at the com- 
 mon law, &c., and in such manner and form, as 
 if the same lands, tenements, &c., had never 
 been of the said nature of gavelkind ; any usage 
 
 G
 
 42 
 
 WHAT LANDS IN KENT AEE 
 
 BOOK I. 
 
 Wiseman 
 
 v. 
 Cotton. 
 
 or custom in the said county to the contrary 
 notwithstanding. 
 
 And in the statute of Ed. 6, there is a clause, 
 that the lands should be disgavelled, and should 
 from thenceforth be, to all intents, constructions, 
 and purposes whatsoever, as lands at common 
 law, as if they had never been of the nature of 
 gavelkind, and that they should descend as lands 
 at common law, any custom to the contrary not- 
 withstanding (i). 
 
 The words of these statutes are very general, 
 to make the lands as if they had never been of 
 the nature of gavelkind, but the construction is 
 more restrained. 
 
 In an ejectment for lands in Kent, a question 
 arose, whether lands which had been gavelkind, 
 but were by the stat. 2 & 3 Ed. 6, disgavelled, 
 and made descendible according to the course 
 of the common law, did notwithstanding remain 
 devisable by will, according to the custom of 
 Kent as to gavelkind ; and the court after two 
 arguments adjudged, that the statutes of dis- 
 ga.velling only took away the partibility, and 
 not the other qualities or customs appertaining 
 to lands in Kent, of the nature of gavelkind; 
 for that they are merely collateral to the nature 
 of gavelkind (though Wyndham, Just., thought 
 them parts of the custom of gavelkind); and 
 the last clause, that the lands shall descend ac- 
 
 (i) In Wiseman v. Cotton (cited in Doe v. Brydges, 6 
 Man. & Gr. 282), a special verdict was found purporting 
 to set out the above Act. See next note.
 
 OF THE NATURE OF GAVELKIND. 43 
 
 cording to the common law, shall qualify the CHAP. V. 
 generality of the preceding words; and though 
 such custom were to be taken to be parcel of, 
 and comprehended under gavelkind, yet it was 
 not the design of either of these acts, to divest 
 these lands of any of their former privileges, not 
 expressly altered by the letter of these laws; 
 for else, instead of a benefit which the acts in- 
 tended (they being made on the petition of the 
 persons therein mentioned), the owners of gavel- 
 kind lands would suffer a great prejudice by the 
 loss of their former privileges, as in the case of 
 forfeiture for felony and the like. (Wiseman v. 
 Cotton, Hard. 325 ; S. C. 1 Sid. 135 ; Raym. 59, 
 76 ; 1 Lev. 79.) And the same opinion had 
 been before declared obiter by Glynne, Ch. Just., 
 in the case of Brown v. Brookes [2 Sid. 153 ; 
 S. C. nom. Brooke v. Thomlinson,\ Freem. 47], 
 concerning the statute 31 Hen. 8, c. 3, that it 
 extends to no other custom of the land, save 
 that of the descent, according to a M.S. note 
 which I have seen of that case, written in the 
 hand of Pemberton, afterwards Ch. Just. 
 
 It may be a proper caution to the reader, that Evidence of 
 all these disgavelling statutes being particular the disgavel- 
 acts, the courts of law cannot take judicial 
 notice of them; but if any use is proposed to 
 be made of them, an attested copy examined 
 with the record, ought to be given in evi- 
 dence (j). Indeed, the statute 31 Hen. 8, c. 3, 
 
 (j) In Doe d. Bacon v. Brydges (6 Man. & Gr. 282), 
 
 G 2
 
 44 WHAT LANDS IN KENT ARE 
 
 BOOK I. being printed in the statute book by the King's 
 printer, according to the modern practice, credit 
 
 the Court of Common Pleas held, that the contents of an 
 office copy of a special verdict, returned upon the trial of a 
 feigned issue, in the case of Wiseman v. Cotton (supra), 
 setting forth the provisions of the disgavelling statute 
 2 & 3 Edw. 6, were inadmissible as evidence to prove the 
 passing of the Act, although the original is not now to be 
 found on the parliament roll. Ch. Just. Tindal, in delivering 
 the judgment of the Court on making the rule absolute for 
 a new trial, said, " In order to prove that such an Act of 
 Parliament did really pass, after the evidence from the Clerk 
 in the Parliament Office, who had the custody of the records 
 of the House of Lords, that no such Act was to be found, 
 a certain calendar was put in, purporting to contain sixty 
 titles of Acts passed in the 2 & 3 years of the reign of 
 Edw. the 6th, of which that which was numbered 40, pur- 
 ported to be, ' An Act for disgavelling lands in Kent.' The 
 calendar so produced was made in 1640. To the 
 
 reception of this evidence the defendant's counsel objected, 
 but it was nevertheless received. The plaintiffs next pro- 
 duced in evidence, an examined office copy of a special 
 verdict, found in a cause upon a feigned issue between 
 Wiseman & Cotton Bart., in B. R. Hilary Term, 13 & 14 
 Car. 2, in which special verdict the jury found, among other 
 things, the Act in question, so alleged to have been lost. 
 To this evidence there was an objection on the part of the 
 defendant. ***** AS j^ appears to us, that 
 the objection made to the reception of the special verdict 
 was well founded, and that such evidence was inadmissible, 
 and that upon the ground of its having been received, the 
 cause must go down to another trial, it will be unnecessary 
 to state our opinion upon the other points raised in the 
 course of the argument before us. But with respect to the 
 special verdict which was given in evidence, we cannot 
 distinguish this case from any other in which the general 
 rule obtains. The verdict was strictly and properly l res
 
 OF TEE NATURE OF GAVELKIND. 45 
 
 will be given to it, and it may be read in CHAP. V. 
 evidence to a jury as a true copy. (See Salk. 
 566; [Dupays v. Shepherd, 12 Mod. 216; Gil- 
 bert's evid. 6th edit. p. 10, and note by Sedg- 
 wick ; Hargr. Co. Litt. 98 b, note (1) ; Doe v. 
 Badges, 6 Man. & Gr. 306, n. (e).]) 
 
 inter altos acta,' and could not bind the parties to the 
 present suit, by anything found in such verdict by the 
 former jury. The finding of the jury in that case, is open 
 to the further objection, that it is strictly and properly the 
 finding of a matter of fact ; it does not profess to give a 
 copy of the Act according to its tenor, nor does it state 
 any title of the Act, by which alone it could be identified 
 with the lost Act, No. 40 in the Calendar ; but it finds only 
 as a matter of fact, that at a Parliament of King Edw. 6th, 
 holden, &c., it was enacted, ordained, and established, by the 
 authority of the same Parliament, in these words following, 
 to wit, &c. It follows, therefore, that the plaintiff must be 
 taken to give in evidence, the finding of the Jury in that 
 cause, in order to supply the lost Act ; and it is not the 
 case of procuring by some casual means, an authenticated 
 copy of the lost Act out of any custody, as it is argued to 
 be on the part of the plaintiff, even if such production 
 would be admissible. As therefore, it is impossible to say, 
 that the verdict found for the plaintiff, did not proceed on 
 the effect which the production of this special verdict had 
 upon the minds of the jury, we think the case must go 
 down to a new trial."* 
 
 * This cause was tried again at the Spi'ing Assizes for the County 
 of Kent, 1845, when an attested copy of the disgavelling Act, was 
 produced from the possession of Messrs. Pemberton & Co., the soli- 
 citors to the Commissioners of Woods, Forests, &c. The Jury re- 
 turned a verdict for the plaintiff, but a bill of exceptions was tendered 
 on the part of the defendant, as to the admissibility of the copy, and 
 of some other parts of the evidence adduced in the cause. Note by 
 Man. & Gr. p. 306.
 
 46 WHAT LANDS IN KENT ARE 
 
 BOOK I. This may suffice to shew what lands in general 
 
 are of the nature of gavelkind. 
 
 Remainder It is further to be observed, that a remainder, 
 or reversion ^ or a revers j on j "being but the residue of the 
 
 land. estate in the land, shall descend in the same 
 
 manner as the lands in possession. As if the 
 ancestor die, seized of the remainder or reversion 
 in fee or fee-tail, expectant on an estate for life 
 or in tail, this shall be divided among all the 
 heirs male; and such remainder [or reversion] 
 of borough-english lands, shall descend to the 
 youngest son. (26 Hen. 8, 4 b; Bro. Custom, 1 ; 
 Lamb. Peramb. 548 ; Bollard v. Bollard, Dyer, 
 128 ; Style, 410; [Chester v. Chester, 3 P. Wms. 
 63.]) 
 
 Use. The use also of gavelkind land, shall follow 
 
 the nature of the land out of which it issues, 
 and be partible among all the males, it not being 
 a thing newly created, but the ancient use. 
 And in borough-english, the use shall descend 
 to the youngest son. (1 Rep. 88 a, 101 a; Co. 
 Litt. 23 a; [Randall v. Richill, 1 Freem. 105, 
 
 Trust. 346.]) And the same it is of a trust. [Banks v. 
 
 Sutton, 2 P. Wms. 713; Fawcet v. Lowtlier, 2 
 Ves. sen. 304; Hinton v. Hinton, 2 ibid, 640; 
 Jones v. ReusUe, 22 Yin. Abr. 185, pi. 7.] (k) 
 
 (h) Accordingly, if land agreed to be sold be gavelkind, 
 all the sons upon the death of their parent before the com- 
 pletion of the purchase, will become trustees for the pur- 
 chaser, and as such, bound to carry the agreement into 
 effect. (Teynham v. Head, cited Sugd. Vendors, 184, 8th 
 edit.; Hinton v. Hinton, 2 Ves. sen. 640.) So, if gavelkind
 
 OF THE NATURE OF GAVELKIND. 47 
 
 If a fair or market be holden on gavelkind CHAP. V. 
 land, such profits thereof as arise from, or by ~ 
 reason of the soil, shall descend in the same f a j r or mar . 
 manner as the land would descend by the cus- ket. 
 torn; but such as are independent of the soil, 
 shall go to the eldest son only ; as may be in- 
 ferred from what is laid down by the Court 
 in Heddey v. Wellhouse (Moor, 474), that if the 
 King grants a fair or market with toll certain, 
 
 land be mortgaged, the equity of redemption on the death 
 of the mortgagor, will descend to all his sons equally, to 
 whom the legal estate would have descended. (Fawcet v. 
 Lowther, 2 Ves. sen. 304.) And if the mortgagee should 
 die before the land has been redeemed, all his sons will be 
 necessary parties to the reconveyance of the estate to the 
 mortgagor, on his redemption of the mortgage. (Re Kent, 
 8 Law Jour. (N. S.) Ch. 169 ; Re Field, 9 Hare, 414.) 
 
 But where a trust of gavelkind lands is executory, and is 
 to be carried into execution by a Court of Equity, that 
 Court will direct the conveyance to be made according to 
 the rules of the Common Law, and not according to the Cus- 
 tom. (Roberts v. Dixwell, 1 Atk. 609 ; cited 4 Myl. & Cr. 
 329.) So, where a surrender was made of an estate of 
 the tenure of borough-english to the use of trustees, in 
 trust, after payment of an annuity, and some particular 
 debts, to surrender the same to the use of the heirs of the 
 body of the husband and wife, who had two sons ; as this 
 was a trust merely executory, the Court directed a surrender 
 to be made to the eldest son, as heir general by the Common 
 Law. ( Starkey v. Starkey, Bac. Abr. (H) tit. "Uses and 
 trusts.") And in Hougham v. Sandys (2 Sim. 154), V. C. 
 Shadwell held, that money produced by the sale of gavel- 
 kind lands, and impressed with a trust to be laid out in the 
 purchase of other freehold lands, will, upon the death and 
 intestacy of the person entitled to it, descend to the heir-at- 
 law, and not to the co-heirs in gavelkind.
 
 48 WHAT LANDS IN KENT ARE 
 
 BOOK I. to a man and his heirs, to be holden within land 
 which is borough-english, and the grantee dies, 
 the heir at common law shall have the fair or 
 market with the toll, but the younger son shall 
 have the pickage and stallage, as incident to the 
 soil (7). And the same thing was affirmed obiter 
 by Bury, Ch. B., in the case of Rebow v. Bicker- 
 ton (Trin. T. 7 Geo. 1, in Scacc.), because the 
 former is not annexed to the land, but the latter 
 are incident to the soil. 
 
 What rents There is no point concerning the law of gavel- 
 out of gavel- kind, that has given occasion to a greater variety 
 kind follow '. . > . n , . . 
 
 the nature of * opinions than this : Whether a rent issuing out 
 
 the land. of gavelkind land shall follow the nature of the 
 land or not. 
 
 Indeed, the books generally agree, that a rent 
 which has continued time out of mind, is of the 
 nature of the land, and as such, shall be partible 
 among the heirs male, and the wife shall be en- 
 dowed of a moiety, &c. (4 Ed. 3, 32 ; Bro. Cus- 
 tom, 58; Fitzh. Dower, 113.) 
 
 But this must be taken with a distinction, that 
 it be not rent-service parcel of a manor originally 
 holden by knight-service, which will descend 
 with the manor. [Hargr. Co. Litt. Ill a, n. (5).] 
 
 For though the tenancy be of gavelkind na- 
 ture, yet the rent-service by which such tenancy 
 is holden, may well be descendible at the com- 
 mon law. (7 Ed. 3, 38; Fitzh. Avowry, 150; 
 Lamb. Peramb. 548; 21 H. 6, 11 b.) 
 
 (I) The decision in this case is cited with approval by 
 Bay ley, Just., in Rex v. Bell. (5 Mau. & Sel. 222.)
 
 OF THE NATURE OF GAVELKIND. 49 
 
 Nor does there ever seem to have been any CHAP. V. 
 doubt concerning a rent reserved on a gift in 
 tail, or lease for life or years, of gavelkind lands; 
 but as incident to the reversion, it shall follow 
 the nature of the lands. (22 Ed. 4, 10 b ; Knolk's 
 case, Dyer, 5 b.) 
 
 But the great question has been concerning a 
 rent-charge out of these lands commencing by 
 grant within time of memory, which is, however, 
 now put in peace by the following determi- 
 nation : 
 
 The question was, whether a rent-charge 
 granted out of gavelkind lands to a man and 
 his heirs, should go to the heir at common law, 
 or be partible among all the sons; and after 
 solemn argument by two Kentish counsel, and 
 consideration of all the cases, the Court held, 
 that the rent ought to descend to all the brothers 
 according to the descent of the land; because, 
 the rent is part of the profits of the land, and 
 issues out of the land. (Randall v. Jenkins, 1 
 Mod. 96; S. C. 2 Lev. 87; 3 Keb. 165, 214; 
 [1 Freem. 105, 346;] cited in Edwin v. Thomas, 
 1 Vern. 489.) The same point was ruled in 
 Stokes v. Verrier (3 Keb. 292; S. C. 1 Mod. 
 112), on the authority of the foregoing case, 
 and the same thing is affirmed by Holt, Ch. 
 Just., in Clements v. Scudamore (Salk. 244), 
 [and in Brown v. Dyer. (11 Mod. 98.)] 
 
 And in Osmer v. Sheafe (2 Lutw. 1205, 1210; 
 S. C. 3 Lev. 370; Garth. 307), there is a conu- 
 sance made in the name and right of a younger 
 
 H
 
 50 WHAT LANDS IN KENT ARE 
 
 BOOK I. brother, for his purparty of a rent-charge granted 
 to his ancestor in fee, out of lands in gavelkind, 
 and judgment for the conusant. Indeed, the Re- 
 porter properly doubts, whether the conusance 
 being for part of the rent only, was good; for 
 it is adjudged in Page v. Stedman (Garth. 364), 
 that coparceners cannot sever, but must join in 
 avowry for rent. And the same rule is allowed 
 between parceners of a seigniory in gavelkind 
 distraining for rent-service. (7 Ed. 3, 38, 39, 
 Avowry, 150.) (m) 
 
 But if the rent be issuing by one entire grant 
 out of lands of different natures, they who claim 
 under the custom, will have no share in the in- 
 heritance, but the common law descent will be 
 preferred to the whole, as the most worthy. 
 
 Rent granted out of land at common law and 
 borough-english, descends according to the com- 
 mon law. (1 And. 191, obiter.) 
 
 If rent is granted out of land of the custom 
 of gavelkind, and out of land at common law, 
 and the grantee dies having divers sons, the 
 eldest only shall have the whole rent. (Note to 
 Dyer, 5 b.) And in the case of Randal v. 
 
 (m) In Decharms v. Horwood (10 Bing. 526), it was 
 held, that one coparcener cannot sue separately for his 
 portion of rents due to him and his fellows. But he may 
 distrain for the whole rent without the express authority 
 of his coheirs. (Leigh v. Shepherd, 2 Brod. & Bing. 
 465 ; and see Decharms v. Horwood, supra,) It is not 
 however, clear, that he can do so, if they expressly dissent. 
 (Leigh v. Shepherd, supra ; and see Robinson v. Hofman, 
 4 Bing. 562.)
 
 OF THE NATURE OF GAVELKIND. 51 
 
 Roberts (Noy, 15), it was adjudged in replevin, CHAP. V. 
 
 that if a man seized of land in soke-fee (which is 
 
 to be understood land at common law, per Hale, 
 
 Ch. J., 3 Keb. 215, 216), and gavelkind, grants 
 
 a rent-charge out of them to B. in fee, and B. 
 
 dies having issue three sons, the eldest only 
 
 shall have all the rent. 
 
 But if rent is reserved out of land of two cus- 
 tomary natures, as if a man make a lease for 
 years of two acres of land, one in gavelkind, 
 and the other in borough-english, and has issue 
 two sons, and dies, the rent shall be apportioned, 
 because it descends to them by course of law. 
 (Rushderis case, Dyer, 5 a.) Though the true 
 reason seems to be, that it is incident to the 
 reversion. 
 
 And indeed, the law will be the same equally 
 in the case of a rent reserved out of gavelkind 
 lands, and lands at common law; as such rent 
 is incident to the reversion, and apportionable 
 on the severance of it, either by act of law, or 
 act of the party. (Co. Litt. 148 a, 215 a.) 
 
 A man seized of two acres, the one in fee [at 
 common law,] the other in borough-english, has 
 issue two sons, and lets both acres for life, or 
 years, rendering rent, with condition of re- 
 entry; the lessor dies; by this descent, which 
 is an act in law, the reversion, rent, and con- 
 dition, are divided. (Dumpors case, 4 Rep. 120 
 b; S. C. 1 Roll. Rep. 331; [1 Smith's Lead, 
 cases, 16.] (n) 
 
 (n) In Doe d. De Rutzen v. Lewis (5 Ad. & Ell. 277 ; 
 
 H 2
 
 52 
 
 BOOK I. Parsonages, tithes, &c., that came to the 
 
 Crown by the statutes for the dissolution of 
 Of Tithes / 
 
 out of gavel- monasteries, &c., (a) are made by those statutes, 
 
 kind lands. an d that of 32 Hen. 8, c. 7, in the hands of 
 
 (X)[27H. laymen temporal inheritances, and husbands 
 8, c. 2b; 31 J T 
 ibid c 13 ma y "e tenants by the curtesy, and wives en- 
 
 37 ibid, c.4; dowed by them. (Co. Litt. 159 a.) Upon 
 ' 6> C ' which may possibly arise a question of some 
 importance, whether tithes impropriate issuing 
 out of gavelkind lands, shall descend to the 
 eldest son, or go according to the custom of 
 the lands out of which they arise. And the 
 like doubt may be made concerning dower, and 
 tenancy by the curtesy. But it will be very 
 difficult to maintain, that these new inheritances 
 can be directed, or controlled by the custom, 
 since they were within time of [legal] memory 
 duties merely ecclesiastical, collateral to the es- 
 tate of the land, and are no part of the old lay- 
 fee. (Priddle v. Napper, 11 Eep. 13 b.) (o) 
 
 S. C. 6 Nev. & Man. 771), Littledale. Just., observes, that 
 there seems to be a very good reason for this decision, for 
 each of the sons has an entire estate in the whole. 
 
 Co} This question is now set at rest by the decision of 
 the Court of C. P. in Doe d. Lushington v. The Bishop 
 of Llandaff. (2 Bos. and Pull. New Rep. 491 ; S. C. 2 Eag. 
 & Younge's Tithe Cases, 557 ; cited 2 Sim. 154). It was 
 there determined, that as a layman was incapable of having 
 any tithes until the dissolution of the monasteries, they 
 could not be affected by any ancient tenure, or rule of 
 descent ; and therefore, must descend entirely to the eldest 
 son, according to the rules of descent at Common Law.
 
 OF TEE NATURE OF GAVELKIKD. 53 
 
 Before I conclude this chapter, I shall take CHAP. V. 
 notice how generally this custom of gavelkind The genera- 
 formerly obtained throughout the whole county lityofgavel- 
 of Kent ; for, though it is confined to tenements ^ 
 
 throughout 
 
 of socage tenure, yet, there were fewer lands Kent, 
 anciently holden by knight-service in this, than 
 perhaps in any other county of the kingdom ; 
 insomuch that it is said in Pasc. 18 Ed. 2 (Mayn. 
 610), that all the land in Kent is holden in soc- 
 age. But this is not to be taken literally, for 
 it is plain by the Milites Archiepiscojn in Domes- 
 day, that military tenures were introduced into 
 this county soon after the Conquest; and there 
 are frequent instances on record in the Kentish 
 Iters, of lands holden by knight-service; as in 
 39 Hen. 3, rot. 18, in dorso; 43 Hen. 3, rot. 4; 
 55 Hen. 3, rot. 20, 38 in dorso; 52 in dorso; 
 21 Ed. 1, inter plac. coron. rot. 41; and Hil. T. 
 10 Ed. 1, C. B. rot 27; so, in this very reign of 
 Edward the Second, Mich. T. 9 Ed. 2, C. B. 
 rot. 240 (post, bk. 2, ch. 3) ; and in Itin. Kane. 
 6 Ed. 2, plac. coron., the juries of the several 
 hundreds throughout the county, are charged to 
 enquire de feodis, and accordingly find who held 
 lands in capite within their several districts, as 
 may be seen Rot. 19, &c. 
 
 However, it appears by stat. 18 Hen. 6, c. 2, 
 that at that time, the number of military tenants 
 in this shire was very inconsiderable, the act ta- 
 king notice, that there were within the county 
 of Kent but thirty or forty persons at most, 
 which had any lands or tenements out of the
 
 54 WHAT LANDS IN KENT, ETC. 
 
 BOOK I. tenure of gavelkind ; because, the greater part of 
 the county, or ivell nigh all, was of the tenure 
 of gavelkind. 
 
 Indeed, the quantity of lands exempt from this 
 custom, as to the quality of partition, was much 
 increased by the disgavelling statutes; and this, 
 perhaps, may have given occasion to a common 
 mistake which I have met with among strangers 
 to this county, that there now remains in it but 
 little land of the nature of gavelkind. 
 
 But the presumption of law, that all the lands 
 
 in this county are gavelkind, is a great friend to 
 
 the custom; and if we consider the difficulty 
 
 V. Wiseman complained of even in the last age, and now 
 
 ^rM^R^Yfi g rown mucn greater, of proving what estates, 
 
 Man. & Gr. the persons comprehended in the disgavelling 
 
 282, ante, statutes were seized of, at the time of making 
 
 those acts, together with that of shewing what 
 
 lands were formerly knight-service, which is a 
 
 difficulty increasing every day since the abolition 
 
 of military tenures [by the stat. 12 Car. 2, c. 24,] 
 
 and the expense attending the search of records 
 
 for evidence of this kind, I believe I should not 
 
 seem much mistaken, were I to assert, that there 
 
 is now near as much land in this county subject 
 
 to the control of the custom, as there was before 
 
 the disgavelling statutes were made. [See the 
 
 Eeport of the Real. Prop. Comm. post ; Hasted's 
 
 Hist, of Kent, vol. 1, p. 321, 2nd edit.]
 
 55 
 
 CHAP. VI. 
 
 OF THE NATURE OF GAVELKIND IN POINT OF 
 DESCENT AND PARTITION; AND OF THE REME- 
 DIES FOR AND AGAINST PARCENERS BY THE 
 CUSTOM. 
 
 HAVING shewn in general what lands within CHAP. VI. 
 the county of Kent are of the nature of gavel- 
 kind, I shall now enter more particularly into 
 the several properties of the custom, and in this 
 I shall follow the order of the division before Ante, p. 24. 
 made, first treating of the general, and then of 
 the special customs; and partibility being the 
 primary and more eminent quality of gavelkind, 
 I shall in the first place, speak of that, and its 
 consequences, viz., the remedies given by law to 
 or against parceners by the custom, either for the 
 land, or by reason of the land. 
 
 The descent of lands in gavelkind in the right Descent of 
 line, is so well known to be among all the sons, la " d f ">. g ft - 
 
 velkind in 
 
 and in default of them, to the daughters, that it the right 
 is needless to multiply authorities concerning it; line - Custu- 
 
 . ,, .*!_ . c i .LI malofKent, 
 
 especially as it is taken notice 01 by the statute pog| . Litt> 
 17 Ed. 2 (De Prcerog. Regis), c. 16. "In Kent sect. '260. ' 
 in gavelkind all heirs males shall divide their in-
 
 56 OF THE NATURE OF GAVELKIND 
 
 BOOK I. heritance, and likewise women; but women shall 
 
 not partake with men." 
 
 Females But though females claiming in their own right 
 
 may inherit are postponed to males, yet it is to be understood 
 byrepresen- that they may by representation, inherit together 
 tation. with them. For it is not to descents according 
 
 to the course of the common law only, that the 
 right of representation is confined, but it holds 
 also in inheritances descendible according to cus- 
 tom, and indeed, has been taken notice of by 
 the laws of all countries; and therefore, if a man 
 has three sons, and purchases lands in gavelkind, 
 and a younger son dies in the life of his father 
 leaving issue a daughter, without doubt, the 
 daughter shall inherit the part of her father; 
 and yet she is not within the words of the 
 custom (inter hceredes masculos partibilis), for she 
 is no male, but the daughter of a male, coming 
 in his stead by representation. (Per Holt, Ch. 
 Just., in delivering the opinion of the Court in 
 Clements v. Scudamore, 6 Mod. 121 ; S. C. Salk. 
 243; 1 Peere W. 63; 2 Ld. Raymond, 1024, 
 1025; 2 Inst. 595; Lamb. Peramb. fff-; Somn. 
 7 ; Hawtrie v. Auger, Dyei, 239 ; [Doe v. Har- 
 vey, 4 B. & Cr. 610, per Bayley, Just.; Denn 
 v. Purvois, I Burr. 326.]) 
 
 And though the father purchased not the 
 lands in gavelkind, till after the death of one of 
 his sons, yet the representative of such son shall 
 be admitted in his stead, as appears from the 
 principal case of Clements v. Scudamore (supra), 
 which was this : A. had five sons, and the
 
 IN POINT OF DESCENT AND PARTITION. 57 
 
 youngest died in the life of Ms father leaving CHAP. VI. 
 issue a daughter, after which, the father pur- 
 chased copyhold lands of the nature of bo- 
 rough-english, which by the custom, were de- 
 scendible to the youngest son and his heirs; 
 and the Court upon consideration, were of 
 opinion, that the daughter of the fifth son 
 should inherit jure reprcesentationis, for the cus- 
 tom having made the youngest son heir, the law 
 implies all necessary incidents and consequences 
 in point of descent. (Clements v. Scudamore, 
 supra.) (p) 
 
 Nor is the partible quality of gavelkind land Descent in 
 restrained to the right line only, but in default the collate- 
 
 1"! I 1 1 1 ( * 
 
 of lineal heirs, by the custom of Kent when one 
 brother dies without issue, all the brothers shall 
 inherit. (Co. Litt. 140 a ; Skin. 385 ; Somn. 7 ; 
 Spelm. Glossary, sub verbo " Gaveletum," 23 
 Ass. 12.) And this was taken for granted in 
 the case of Gouge v. Woodwin (Mich. T. 8 Geo. 
 2), where the contest was between two brothers 
 on the death of a third (q). 
 
 (p) On the death of a coheir intestate leaving children, 
 the eldest son will still take the whole of his parent's share 
 to the exclusion of the surviving coheir, notwithstanding 
 the stat. 3 & 4 Will. 4, c. 106. (Cooper v. France, 14 Jur. 
 214, Ch. ; Paterson v. Mills, 15 Jur. 1, Ch. ; see Essay on 
 the New Statutes by Sugden, p. 282.) 
 
 (q) Brothers of the half blood to each other, may succeed 
 together as heirs in gavelkind to their common ancestor, 
 in the same manner as daughters of the half blood take 
 together as parceners at common law. (Chitty on Descents, 
 p. 187.) 
 
 I
 
 58 OF TEE NATURE OP GAVELKIND 
 
 BOOK I. And in default of brothers, their respective 
 issue shall take jure representations, but then, 
 the nephews succeeding with their uncle, the 
 descent is in stirpes, and not in capita. (Somn. 7 ; 
 26 Hen. 8, 4 b ; Beviston v. Hussey, Skin. 385, 
 562 ; \_Denn v. Purvois, I Burr. 326 ; Crump v. 
 Norwood, 7 Taunt. 362 ; S. C. 2 Marsh. 161.]) 
 And so, from the nature of the thing it must 
 be, where the sons of several brothers succeed, 
 no uncle surviving ; for though in equal degree, 
 they stand in the place of their respective fa- 
 thers (r). 
 
 (r) It is remarkable, that none of the old works treating 
 of, or referring to gavelkind, make mention of the custom 
 extending in the collateral line beyond brothers, and their 
 issue; nor does there appear to be any reported judicial 
 decision on this point. From this silence in the books, an 
 opinion has been entertained by some conveyancers (among 
 whom may be mentioned the late Mr. Butler and Mr. Peck- 
 ham), that such was the extent of the custom of partition. 
 (See Chitty on Descents, p. 183, et seq :) But, Mr. Chitty 
 truly observes, it is the general opinion of almost all the 
 professional gentlemen of the County of Kent, that the col- 
 lateral heirs in the remotest degree, should inherit the 
 estates of their ancestors according to the custom, and 
 they having therefore practised this doctrine, the titles to 
 many estates in the County would be shaken, if it were 
 determined otherwise ; and adds, " From the cases in the 
 Ante, 7, 23. Year-books (2 Ed. 3, 12; 8 Ed. 3, 42), it seems clear, that 
 gavelkind lands are " departible, enter males " generally ; 
 and it may be concluded, that the general partible and 
 divisible quality of lands of gavelkind tenure, is, as it is 
 frequently termed, 'the common law of Kent,' and this 
 being the case, the custom must of necessity extend to col- 
 laterals." This reasoning is supported by the expressions
 
 IN POINT OF DESCENT AND PARTITION. 59 
 
 Neither is our custom of gavelkind confined CHAP. VI. 
 to inheritances in fee-simple only ; for, though 
 an estate-tail is a new kind of inheritance, in- ki n( j i an( j s 
 troduced within time of [legal] memory by the in tail - 
 statute De donis, [13 Edw. 1, st. 1, c. 1,] yet, if a 
 man die seized of lands in gavelkind in tail, 
 whether general or special, all the sons shall 
 inherit together as heirs of the body (11 Ed. 3, 
 Formedon, 30 ; 11 Hen. 6, 43 b; Litt. Sect. 265 ; 
 26 Hen. 8, 4 b; 1 Rep. 101 a, 103 a; Noy, 
 106) ; for it is part of the old fee-simple, though 
 the tail be created de now. (1 Mod. 196.) 
 
 And in like manner, if lands in borough-en- 
 glish are given to a man and the heirs of his 
 body, the youngest son shall take. (11 Ed. 3, 
 Formedon, 30; Litt. Sect. 603; Co. Litt. 110 b; 
 Weeks v. Carvel, Noy, 106; [Dyer, 179 b, pi. 45; 
 Roe v. Aistrop, 2 W. Black. 1228 ; Doe v. Garrod, 
 2 B & Ad. 87 ; Trash v. Wood, 4 Myl. & Cr. 
 324.]) 
 
 One Fairman seized of gavelkind lands had Devise of 
 three sons, and devised part to one, part to g av elkmd 
 another, and part to a third, and if any of them three bro- 
 died without issue, then, the others to be his there, &c. 
 heir; this was adjudged an estate tail in each, 
 remainder over in fee by reason of the word 
 heir. (Sparke v. Purnett, Moor, 864.) 
 
 In Dyer, 133, pi. 5, is put this case: A man Whether 
 seized of lands in gavelkind, by his last will S avelkmd 
 
 made use of in the statutes 17 Edw. 2, c. 16 (ante, 55), 
 and 31 lien. 8, c. 3. (ante, 41.) 
 
 I 2
 
 60 
 
 OF THE NATUEE OF GAVELKIND 
 
 BOOK I. 
 
 lands de- 
 vised to a 
 man and his 
 wife fortheir 
 lives, re- 
 mainder "to 
 the next heir 
 male of their 
 bodies for 
 ever," is a 
 devise in 
 tail? 
 
 Estates pur 
 auter vie of 
 gavelkind 
 lands. 
 
 devises them to husband and wife for their lives, 
 remainder proximo hceredi masculo de corporibus 
 suis legitime procreato imperpetuum; and after- 
 wards, the husband and wife have issue three 
 sons, and die; if the eldest son shall have the 
 whole, or in common with his brothers, was the 
 question : 
 
 By a manuscript note which I have seen of 
 this case, it came in debate on a replevin 
 brought by Anthony May against John Milton 
 and John Hammond ; and Portman, Ch. J., and 
 Whiddon, Just., were of opinion, that all the 
 sons should inherit; but Dalison, Just., held, 
 that the eldest son should take the whole by 
 purchase, and have a fee by reason of the word 
 imperpetuum. [See Co. Litt. 9 b.] 
 
 The question turns upon this, whether the 
 words of this devise create an estate in special 
 tail in the husband and wife, for then all the 
 sons may inherit; but if on the contrary, the 
 words next heir male being in the singular num- 
 ber, are to be taken in this will, as they would 
 in a deed, to be only words of purchase, there 
 can be no doubt but the eldest son will take the 
 whole. [See Co. Litt. 8 b, note (4) ; Preston's 
 Treat, on Estates, vol. 2, p. 9.] 
 
 Nor are estates of inheritance only, trans- 
 mitted to all the sons according to the custom, 
 but freeholds descendible are also of the same 
 nature ; as if a lease is made of gavelkind land 
 to a man and his heirs pur auter vie, the heirs 
 by the custom after the death of their father,
 
 IN POINT OF DESCENT AND PARTITION. 61 
 
 &c., shall be the special occupants ; for, if lands CHAP. VI. 
 
 of the nature of borough-english, be letten to a 
 
 man and his heirs during the life of J. S., and 
 
 the lessee dies in the life-tune of J. S., the 
 
 youngest son shall enjoy the lands. (Co. Litt. 
 
 110 b; Clements v. Scudamore, Salk. 243, per 
 
 Holt, C. J. ; Baxter v. Doudswell, 2 Lev. 138; 
 
 S. C. 3 Keb. 475, 486, 498 ; cited in 2 Vern. 
 
 226 ; [2 Man. & Ry. 251, note (d).]) 
 
 If copyhold lands descendible after the man- Of gavel- 
 ner of gavelkind, are surrendered to the use of kin< V n ,, 
 
 . T . copyholds. 
 
 a man and his heirs who dies belore admittance, 
 yet the customary descent shall take place, ac- 
 cording to the reason of the case of Baker v. 
 Dereham (1 Mod. 102; 1 Vent. 261), where, 
 copyhold land of the custom of borough-english, 
 was surrendered out of Court to the use of a 
 man and his heirs ; the surrenderee died before 
 admittance leaving two sons, and the opinion of 
 the Court was, that the right should descend 
 to the youngest according to the custom. (Blunt v. 
 Clarke, 2 Sid. 61 ; \Vaughan v. Atkins, 5 Burr. 
 2786 ; Rider v. Wood, 1 Kay & John. 644.]) 
 
 The manner of partition among parceners ra- Of the man- 
 
 tione rei. is much the same as among; those at ner fp art i- 
 
 4.1 i . / \ j tlon y P ar ~ 
 
 the common law, or ratione personarum (s) ; and cen ers in 
 
 gavelkind. 
 
 (s) The writ of partition having been abolished by the 
 stat. 3 & 4 Will. 4, c. 27, it is now the practice, where any 
 of the coheirs are unwilling to concur with the rest in 
 making a partition of their estate, or are by reason of mi- 
 nority, or any other cause, incapable of concurring, to file
 
 62 OF THE NATUEE OF GAVELKIND 
 
 BOOK I. therefore, Bracton (Lib. 2, c. 33, p. 71.) has 
 treated of both indiscriminately in the same 
 chapter; if there be any difference between 
 them, it is in the manner of dividing the chief 
 house or capital messuage ; concerning which, 
 I find nothing in the later books, but Glanville, 
 Bracton, and Fleta, speaking of such socage 
 lands as were partible in their times, treat of 
 this matter almost in the same words : 
 
 " Si vero fuerit liber socmannus, tune quidera dividetur 
 "haereditas inter omnes filios, &c. Salvo tamen capitali 
 "messuagio primogenito filio pro dignitate aesneciae suaa, ita 
 " tamen quod in aliie rebus satisfaciat ad valentiam." (Glanv. 
 lib. 7, c. 3.) " Et si unicum fuerit messuagium, illud in- 
 " tegre remaneat primogenito, ita tamen quod alii habeant 
 " ad valentiam de communi." (Bract, lib. 2, fol. 76 ; Flcta, 
 lib. 5, c. 9.) 
 
 And the same authors had said a little before : 
 
 " Habet hoc privilegium primogenitus propter assnetiam, 
 'quod primam habebit electionem, ut si plures participes 
 "sint ibi cohaeredes, et plura capitalia messuagia, primo- 
 "genitus primo eligat, et postea postnatus, et sic tertius, et 
 "quartus in infinitum, quamdiu superfuerit unicum capitale 
 "rnessuagium. Sed si complura ibi fuerint, non tamen tot, 
 "quod quilibet habeat unum, tune illis, qui expertes sunt 
 "de communi haereditate satisfiat ad valentiam." 
 
 a bill in the Court of Chancery for that purpose, which 
 Court has now also jurisdiction to decree partition of copy- 
 holds, and customary freeholds. (4 & 5 Yict. c. 35, sec. 85.) 
 Where, however, all the coheirs are desirous to make a 
 partition, and are personally competent to bind their in- 
 terests, no judicial proceeding is requisite to carry that 
 intention into effect ; they have only to agree on the allot- 
 ments to be made to the respective parties, and execute 
 mutual conveyances. (6 Jarm. Convey, by Sweet, 587.)
 
 IN POINT OF DESCENT AND PARTITION. 63 
 
 And if the house chosen by the eldest, where CHAP. VI. 
 there are many, is of greater value than those 
 which fall to the share of the others, it seems 
 he ought to make satisfaction to his brethren 
 out of the rest of the inheritance, or by a rent 
 out of the house. (Vide Litt. sec. 251 ; [Claren- 
 don v. Hornby, 1 P. W. 446 ; Story v. Johnson, 
 1 You. & Coll. 538; 2 id. 611.]) (t) 
 
 Even after partition of gavelkind lands, but Of suit ser- 
 one suit shall be done for all the parceners for vice b ^. P ar " 
 
 concurs in 
 
 such tenements, for which only one suit was gavelkind. 
 before due, but all the parceners shall be con- 
 tributory according to their several portions, to 
 him that does the suit for them. (Custumal of 
 of Kent, post ; stat. 52 Hen. 3, c. 9 ; vide 2 Inst. 
 119.) 
 
 The entry into and seizin of any one brother Where the 
 of gavelkind lands, is the entry and seizin of all entI T ofo . ne 
 
 i i / j o T-< i parcener is 
 
 the brothers coparceners with him. (4d Ed. 3, tne seizin of 
 19 a; 1 Lutw. 754.) But this must be under- all. 
 stood of a general entry, and not where one 
 enters claiming the whole to himself. (Co. Litt. 
 243 b, 373 b; 43 Ed. 3, 19 a; [Davenport v. 
 Tyrrel, 1 W. Bl. 675.]) (u) 
 
 (t) This rent for equality of partition is a rent charge 
 on the property (Hargr. Co. Litt. 153 a, n. (1) ; Litt. sec. 
 253), and if granted to two or more parceners for that 
 purpose, will belong to them as coheirs, and not as joint 
 tenants. (Co. Litt. 169 b; 2 Prest. Abs. 74.) 
 
 (M) The stat. 3 & 4 Will. 4, c. 27, enacts, that where one 
 or more of several persons entitled to land or rent as copar- 
 ceners, &c., have been in possession or receipt of the en-
 
 64 OF THE NATURE OF GAVELKIND 
 
 BOOK I. It is but reasonable, that the sons partaking 
 
 alike of the advantages of the inheritance, 
 Of debt . , 
 
 against heirs should be equally subject to the burdens at- 
 
 in gavel- tendant on it ; and therefore, if a man seized in 
 
 1 " A fV 
 
 bond of their ^ ee ^ ^ n ^ s m gavelkind has issue three sons, 
 ancestor. and by a bond binds himself and his heirs, and 
 dies, an action of debt is maintainable against 
 all the sons (Co. Litt. 376 b, 386 b; Lamb. 
 Peramb. fff; Game v. Symms, Cro. Jac. 218); 
 and the plaintiff in such joint action shall declare 
 on the custom. (11 Hen. 7, 12.) * (v) 
 
 But then the question will be, when the 
 obligee shall be compelled to bring his action 
 
 tirety, or more than his or their undivided share or shares 
 of such land, or of the profits thereof, or of such rent, for 
 his or their own benefit, or for the benefit of any person 
 or persons, other than the person or persons entitled to the 
 other share or shares of the same land or rent, such pos- 
 session or receipt shall not be deemed to have been the 
 possession or receipt of, or by such last mentioned person 
 or persons (sec. 12.) This section has been held to relate 
 back, so as to make the possession of such persons separate 
 from the time they first came into possession. (Culley v. 
 Taylerson, 11 Ad. & Ell. 1008; Doe d. Holt v. Horrocks, 
 1 Car. & Kir. 566.) 
 
 * See the form of the declaration, N. Bendl. 146; East. 
 Ent. 208; 1 Brownl. Decl. 111. 
 
 (v) The sons are only bound by the bond of their an- 
 cestor to the value of the land descended to them, and 
 therefore, as soon as they have paid their ancestor's debt 
 to the value of such land, they are entitled to hold the land 
 discharged therefrom. (See Buckley v. Nightingale, 1 
 Strange, 665.)
 
 IN POINT OF DESCENT AND PARTITION. 65 
 
 against all the sons, or when he may sue the heir CHAP. VI. 
 at common law alone; which may be resolved 
 by the following distinctions : 
 
 If the obligor dies seized of land in gavelkind 
 only, the writ ought of necessity to be brought 
 against them all, for all the parceners make but 
 one heir (w). 
 
 And it has likewise been adjudged, that if the 
 obligor leaves both lands at common law, and 
 lands in gavelkind, the heir at common law shall 
 not be charged alone; for, the eldest son is not 
 chargeable simply as heir, but because he has 
 lands by descent as heir, and this reason serves 
 equally to charge the rest; and in such action, 
 not only his assets at common law, but likewise 
 his purparty in gavelkind would be liable, which 
 that it should be severally from the rest is un- 
 reasonable. And therefore, if he be sued alone 
 in such case, on the special matter disclosed by 
 plea, the writ shall abate. (11 Ed. 3, Dette, 7; 
 Hob. 25.) 
 
 But where there are assets at common law, 
 and likewise in gavelkind, if the obligee declares 
 generally against the sons as heirs by the custom, 
 he shall have execution only of the lands in 
 gavelkind; the proper way therefore to avoid 
 all these difficulties, is, to declare in the same 
 count against E., as heir by the common law, 
 
 (w) The non-rejoinder in the writ of any one of the 
 coheirs may be pleaded in abatement. (Com. Dig. tit. 
 " Abatement," F. 9.) 
 
 K
 
 66 OF THE NATURE OF GAVELKIND 
 
 BOOK I. and against the same E., C., and D., as heirs in 
 gavelkind. (11 Ed. 3, Dette, 7.) In the same 
 manner as the heir at common law, and heir in 
 borough-english, are sued jointly in Brownl. Ent. 
 180. [See Drake v. Robinson, I P. W. 443.] 
 
 If the eldest son only has assets remaining, 
 and the rest have aliened their parts, then the ob- 
 ligee may bring his action against the eldest son 
 alone. (Lamb. Peramb. fff ; 11 Ed. 3, Dette, 7.) 
 
 But if pending a writ against the eldest son 
 only, lands in gavelkind come to him and the 
 others, the writ shall abate. (11 Ed. 3, Dette, 7, 
 per Shard, Just.) 
 
 If a man having lands in gavelkind, bind him- 
 self and his heirs in a bond, and dies leaving 
 three sons, and one of them aliens his part, and 
 the writ be brought against them all, the whole 
 shall be levied upon the others who have assets. 
 As in debt against two female parceners on the 
 bond of their ancestor, if one of them has 
 aliened before action brought, the plaintiff shall 
 have execution for his whole demand against the 
 purparty of the other. (11 Ed. 3, Dette, 7.) (x) 
 
 (x) The stat. 1 1 Geo. 4, & 1 Will. 4, c. 47, enacts, that 
 where an heir-at-law shall be liable to pay the debts, or 
 perform the covenants of his ancestor in regard of any 
 lands descended to him, and shall sell, or make over the 
 same, before an action is brought against him, he shall be 
 answerable for such debts or covenants in an action, to the 
 value of the said lands, and execution may be taken out 
 upon any judgment so obtained against him to the value 
 of the said lands, as if the same were his own debt ; but the
 
 IN POINT OF DESCENT AND PARTITION. 
 
 67 
 
 Sir Anthony Auger being seized in fee of ga- 
 velkind lands, bound himself and his heirs in a 
 bond, and had issue three sons, and died; the 
 the sons entered, and the eldest of them had 
 issue a daughter, and died ; and debt was 
 brought against the two surviving brothers and 
 the issue of the eldest (who was but seven years 
 old) as heirs, and the process continued until the 
 uncles were outlawed, and the niece waived; 
 the uncles purchased a pardon for themselves, 
 and on a scire facias to the plaintiff ad sequendum, 
 he declared against the uncles simul cum the 
 niece; the two defendants pleaded the nonage 
 of the niece, and prayed judgment whether they 
 ought to answer during her nonage. But the 
 Court held, that the parol ought not to demur, 
 for that the infant was out of Court, and by the 
 waivure, the original was determined against her; 
 nor was the outlawry void, but only voidable by 
 error. (Hawtrie v. Auger, Dyer, 239 a; S. C. 
 N. Bendl. 146; 1 And. 10; Moor, 74; East. 
 Ent. 208, 209.) 
 
 By this case it appears, that a parcener by 
 representation shall be charged with the bond 
 debt of the ancestor, as well as the others, 
 though Moor, in his report, makes a quaere of it. 
 
 Having shewn in what manner the heirs in 
 gavelkind shall be charged by the bond of their 
 ancestor, let us suppose the lands to descend to 
 
 lands bona fide aliened by him before the action is brought, 
 are thereby exempted from execution, (sec. 6.) 
 
 2 K 
 
 CHAP. VI. 
 
 Hawtrie 
 
 v. 
 Auger. 
 
 Of extend- 
 ing the lands 
 of the heirs 
 in gavelkind 
 on a judg-
 
 68 OF THE NATUKE OF GAVELKIND 
 
 BOOK I. all the sons charged with a judgment suffered in 
 
 debt, &c., and them to make partition ; in this 
 mentof their . ' / -i i 
 
 ancestor. case, ii the part 01 one 01 them alone be ex- 
 
 V. stat. 16 tended for the whole debt, he may compel his 
 & 17 Car. 2, coparceners to contribute, as they are all cequali 
 jure: 
 
 As if a man be seized of two acres of land, 
 one of the nature of borough-english, and binds 
 himself in a recognizance, or judgment be given 
 against him in debt, and he dies leaving two 
 sons, if one is charged alone, he shall have contri- 
 bution against the other. (Harberfs case, 3 Rep. 
 . 12 b; [see Drake v. Robinson, 1 P. W. 443.]) 
 
 So, if a man be bound in a recognizance, and 
 
 has two daughters and dies, and they make 
 
 partition, one shall not be charged alone, but 
 
 shall have contribution. (Harberfs case, supra.) 
 
 To what We have hitherto considered all the sons as 
 
 purposes all h^g k u t even w ^h respect to sravelkind lands, 
 
 the sons are 
 
 not heirs. a ll the sons as to some special purposes shall not 
 
 be accounted heirs ; as in the case of a purchase, 
 or to take advantage of a condition, for the heir 
 to have the benefit of these, must not be heir to 
 a special intent only, but the general and perfect 
 heir, the heir at common law. 
 
 Who shall If land in gavelkind is granted or devised to 
 be heir i to j^ or ]^ Q ^ remam( j er to the heirs, or right heirs 
 
 kind lands of J. S., who has issue four sons, and dies, and 
 
 by purchase, afterwards the tenant for life dies, the eldest 
 
 son of J. S. shall have the land ; for, he takes by 
 
 way of remainder, and not by descent, and he 
 
 only to take by purchase is the right hen 1 by the
 
 IN POINT OF DESCENT AND PARTITION. 69 
 
 common law. (37 Hen. 8, Bro. Done, 42; Nosme, CHAP. VI. 
 6, Discent, 59; 1 Rep. 101, 103 a; Lamb. Peramb. 
 ff|; Hob. 31; Co. Litt. 10 a, [and note (4) by 
 Hargrave; Thorp v. Owen, 2 Smale & Gif. 90.]) 
 And the same is law of borough-english. (Hob. 
 31 ; [see infra, 70, note (*).]) (y) 
 
 But, if a man having gavelkind land, devises 
 other lands to his heirs in gavelkind, all his sons 
 shall take as sufficiently described by this devise, 
 though not heirs by the common law. (Per Cow- 
 per, Lord Chanc. in Newcomen v. Barkham, 2 
 Vern. 732; S. C. Prec. in Chan. 464.) 
 
 And if a man seized in fee of lands in gavel- 
 kind, makes a gift in tail, or lease for life to J. S., 
 remainder to his own right heirs, then it seems, 
 all his sons shall take by the name of right heirs ; 
 for, the remainder limited to the right heirs of 
 the donor, is only a reversion, he bearing in him- 
 self during his life (in judgment of law) all his 
 heirs, and therefore, the heir shall have it by 
 descent. (Co. Litt. 22 b; Dav. 31 a.) 
 
 So, if a man seized of lands in gavelkind, 
 make a feoffinent to the use of himself and his 
 wife in tail, remainder to his own right heirs, 
 this remainder shall go to the heirs by the cus- 
 
 (y) The reason is, because this remainder, being newly 
 created, could not be reckoned to be within the old custom. 
 (Bacon's Abr. tit. "Gavelkind.") The Court of Chancery 
 will also direct the conveyance of executory trusts, to be 
 made according to the rules of the common law. See ante, 
 p. 47, n. (k).
 
 70 OF THE NATURE OF GAVELKIND 
 
 BOOK I. torn (26 H. 8, 4 b, Bro. Custom, 1 ; Lamb. 
 Peramb. 548) ; for it is the old use, and the 
 heirs take by descent, their ancestor having a 
 precedent estate of freehold, and not by pur- 
 chase. [See Doe v. Jones, 2 Dowl. & Ry. 373, 
 per Holroyd, Just.] (z) 
 Who is heir If a man aliens lands in gavelkind on condi- 
 
 to take ad- t{ o ^ an( j dies, the eldest son only shall enter for 
 
 condttkm tne condition broken, and the right of entry does 
 
 annexed not descend to all the sons. (Lamb. Perarnb. 
 
 to^avelkind f os . Noy ' s Max . 82; Dyer, 343 b.) And the 
 
 same law is of a condition annexed to borough- 
 english lands (3 Rep. 21; Moor, 114; Dyer, 
 343 b); for, the heir to take advantage of a 
 
 (z) If land be now limited by any assurance to the per- 
 son, or to the heirs of the person, who thereby conveyed 
 the same land, such person will acquire the same as a pur- 
 chaser by virtue of such assurance, and will not be entitled 
 thereto as his former estate, or part thereof. (3 & 4 Will. 4, 
 c. 106, sec. 3.) Consequently, the heir at common law 
 would now take the land by purchase. (Hargr. Co. Litt. 
 24 b, note (3) ; see ante, p. 68.) Even formerly, if the 
 heir could not take the estate in the same way as he would 
 have done by descent, the gift to him operated, for, in 
 Bear's Case (1 Leon. 112; S. C. Gouldsb. 88), it was held, 
 that a devise of gavelkind lands to the testator's sons and 
 their heirs, equally to be divided among them, gave them an 
 estate by purchase, and would have done so without words 
 of division. (See also Rig den v. Vallier, 3 Atk. 711.) And 
 now by the 3rd section of the above statute, if land be de- 
 vised to the heir, or to the person who shall be the heir of 
 the testator, such heir will acquire the land as a devisee, 
 and not by descent.
 
 IN POINT OF DESCENT AND PARTITION. 71 
 
 condition, must be the heir at common law, the CHAP. VI. 
 complete heir. (9 Hen. 7, 25.) (a) 
 
 It seems indeed, that when the eldest son has 
 entered into the whole for breach of the con- 
 dition, and defeated the estate of the grantee, 
 the younger sons may enter into their part, and 
 hold together with their brother [Bac. Abr. tit. 
 "Gavelkind"]; in like manner, as if a man seized 
 of land on the part of the mother, makes a feoff- 
 ment in fee on condition, and dies [without is- 
 sue,] the heir on the part of the father, who is 
 heir at common law, shall enter for the condition 
 broken, but the heir on the part of the mother, 
 shall enter upon him and enjoy the land. (Co. 
 Litt. 12 b; Wimbish v. Tailbois, Plow. 57 a) 
 
 But we ought to distinguish between a condi- 
 tion in gross, and a condition incident to a rever- 
 sion; for, of the latter, the special heir shall take 
 advantage, though not of the former: A man 
 made a lease of land, parcel borough-english, 
 and parcel at common law, by indenture, for 
 twenty-one years ; provided, that if the lessor, 
 his heirs, or assigns, should give a year's warning 
 to the lessee, that he, his heirs, or assigns, would 
 dwell there, then the lease to be avoided; the 
 lessor died leaving two sons, the eldest assigned 
 over his part to the youngest ; and the question 
 was, whether the youngest son was such a person 
 
 (a) The reason is, because the condition is a thing of 
 new creation, and altogether collateral to the land, being 
 not in any manner like the rent, which is part of the profits 
 of the land itself. (Bacon's Abr. tit. " Gavelkind.")
 
 72 
 
 BOOK I. as could give warning, or, whether the condition 
 was not gone by the severance of the reversion 
 on the death of the father. Manwood, and 
 Monson, Justices, were of opinion, that he might 
 give warning, and that the law, which severed the 
 reversion, had severed the condition also. And 
 so for one part, as heir in borough-english, and 
 for the other, as assignee of his elder brother 
 (by the Stat. 32 Hen. 8, c. 34), (b) he shall take 
 advantage of the condition. But if a man makes 
 a feomnent in fee of borough-english lands on 
 condition, and dies, having issue two sons, the 
 eldest only shall take advantage of the condi- 
 tion, foi it is a condition in gross ; but in this 
 case there was a reversion in the lessor. (Moor, 
 113; S. C. Godb. 2.) 
 
 And it is likewise laid down in Co. Litt. 215 a,* 
 that if a lease for years be made of two acres, 
 
 (b) This Act enacts, that assignees of reversions shall 
 have the same advantages against the lessees, by entry for 
 nonpayment of rent, or, for committing waste, or other for- 
 feiture, and the same remedies by action only, for not per- 
 forming other conditions, covenants, or agreements, con- 
 tained in the leases, as the lessors previously had. (sec. 1.) 
 
 * It is difficult to reconcile with this, another passage in 
 the same book : That if a man seized of lands ex parte 
 matris, makes a gift in tail or lease for life, the heir of the 
 part of the mother shall have the reversion ; and the rent 
 also, as incident thereunto, shall pass with it ; but the heir 
 of the part of the mother, shall not take advantage of a 
 condition annexed to the same ; because, it is not incident to 
 the reversion, nor can pass therewith. (Co. Litt. 12 b.) 
 But, as this is not warranted by the case cited as an au-
 
 IN POINT OF DESCENT AND PARTITION. 
 
 73 
 
 one of the nature of borough-english, the other 
 at common law, on condition, and the lessor dies 
 leaving issue two sons, each of them shall enter 
 for the condition broken, for, by act of law, a 
 condition may be apportioned. And the same 
 thing is agreed in Dwneqpor's case (4 Rep. 120 b); 
 and in I Rolle's Eep. 331. (Ante, 51.) 
 
 Manwood, Just., in Dyer, 316 b, puts this 
 case : A man seized in fee of land in gavelkind, 
 has issue two sons, and by his will devises the 
 land to his eldest son, on condition that he pay 
 to the wife of the devisor 100 at a certain 
 day, and he fails of payment, whether the 
 younger son may enter on a moiety upon his 
 brother, by a limitation implied in the estate? 
 Qucere : 
 
 But this doubt is, as Lord Coke observes, well 
 resolved by the following determination : 
 
 A copyholder in fee of land descendible in bo- 
 rough-english, having three sons and a daughter, 
 after a surrender to the use of his will, devises 
 the land to his eldest son, paying to his daughter 
 and each of his other sons 40s. within two years 
 after his death ; the eldest son is admitted, and 
 
 CHAP. VI. 
 
 When words 
 of condition 
 in a will of 
 gavelkind 
 lands shall 
 be construed 
 a limitation. 
 
 Wellock 
 
 v. 
 Hammond. 
 
 thority for it, in the margin of that book, I have adhered to 
 the other opinions as more agreeable to common reason (6). 
 
 (V) Mr. Preston (2 Abs. 428), thinks the reason on which Robinson 
 objects to the doctrine in Co. Litt. 12 b, is not quite satisfactory ; and 
 says, "In the case Robinson quotes from Co. Litt. 215 a, the customaiy 
 heir takes advantage of the condition in right of a reversion in him, 
 since it is a condition annexed to an estate for years, and not a con- 
 dition annexed to a grant of the fee."
 
 74 OF THE NATURE OF GAVELKIND 
 
 BOOK I. does not pay the money ; the youngest son en- 
 ters on the land, and his entry was held lawful ; 
 for, though the word paying in case of a will 
 may make a condition, yet, here the law con- 
 strues it a limitation, of which the youngest son 
 in borough-english may take advantage; and it 
 is the same, as if he had devised the land to his 
 eldest son, until he made default in payment; for, 
 if it should have been a condition, then it would 
 have descended to the eldest son, and it would 
 consequently have been at his pleasure, whether 
 his brothers or sister should be paid or not. 
 (Wellock v. Hammond, 3 Rep. 20 b, 21 a; Cro. 
 Eliz. 204; 2 Leon. 114.) 
 
 But let us put a case a little different from the 
 former : A man having three sons, devises gavel- 
 kind lands to his second son, paying, or upon 
 condition to pay, to each of his other sons 100, 
 and the devisee fails of payment; I take it, that 
 the youngest son cannot take advantage of this, 
 by entering into a third part ; but in order to 
 defeat the devise, the eldest son ought first to 
 enter upon the whole, agreeably to the deter- 
 mination in the case of Curteis v. Wolverston 
 (Cro. Jac. 56), where, a man having three sons, 
 and several daughters, devised lands descendible 
 in borough-english to his second son in fee, on 
 condition to pay 20/. to each of his daughters 
 at their age of twenty-one ; the devisee not 
 paying the money at the time, the youngest 
 son entered in his own name; but it was held 
 ill, for this shall not be taken as a limitation,
 
 IN POINT OF DESCENT AND PARTITION. 75 
 
 but as a condition, it differing from the reason CHAP. VI. 
 of the case of Wellock v. Hammond, where, had 
 it been construed a condition, it had been void 
 and to no purpose ; but it shall be expounded 
 according to the common law, where it is not 
 necessary to give it a contrary exposition. 
 
 [In Culpepers case (cited in Sanders v. Deligne, Case where 
 2 Freem. 124), a man bought gavelkind land of Equit 7 re- 
 the eldest son, and paid his purchase money 
 without knowledge that it was gavelkind, and Culpeper's 
 afterwards for a mere nominal consideration, case ' 
 bought in the titles of the younger brothers, 
 who were ignorant of their titles ; yet the Court 
 of Chancery refused them relief, because, the 
 purchaser having honestly paid his money with- 
 out notice, might use what means he could to 
 fortify his title. But it is said this case would 
 not be followed. (2 Sugd. Vend. & Purch. 1020, 
 llth edit.) 
 
 fit appears to be doubtful whether the doctrine Whether the 
 
 J A ' n 
 
 of approximation, or cy-pres as it is called, can < ct e< 
 
 1 Cy-pres can 
 
 be applied by the Court of Chancery to lands be applied 
 of gavelkind tenure. In Monypenny v. Dering to gavelkind 
 (7 Hare 568), Wigram, V. C. observed, "Ano- lands> 
 "ther objection urged against the application Monypenny 
 " of the cy-pres doctrine, was founded upon the ~ v :^ 
 " tenure of the land. It was said, that however 
 "right it might be to apply the doctrine to 
 "socage lands, it had never been applied to 
 " gavelkind lands ; that the doctrine was as in- 
 " applicable to lands of such tenure, as it was 
 "to personal estate, and that the primary inten- 
 
 L 2
 
 76 OF THE NATUEE OF GAVELKIND, ETC. 
 
 BOOK I. " tion of the Testator, would no more be secured 
 " in the one case than in the other, by the appli- 
 " cation of the cy-pres doctine. I may perhaps, 
 " doubt, whether if the lands to which the doc- 
 " trine was first to be applied, had been of gavel- 
 "kind tenure, the doctrine would have been ap- 
 " plied. It might indeed, happen, that there 
 " never should be more than one male descend- 
 "ant in the family; and in that case, the prac- 
 tical working of the doctrine in lands of gavel- 
 "kind tenure would be the same, as if the lands 
 "were of socage tenure. But such an accident 
 " ex post facto, would not support the proposition 
 "upon which the cy-pres doctrine is founded, viz. 
 " that the Court, by giving an estate tail to the 
 " first tenant for life, had thereby placed the 
 " property in a position in which (if nothing be 
 " done to disturb it), the law itself would carry 
 "the property to those for whom the Testator 
 "intended it."]
 
 77 
 
 BOOK II. 
 
 OF THE SPECIAL CUSTOMS INCIDENT TO GAVEL- 
 KIND LANDS IN KENT. 
 
 CHAP. I. 
 
 OF TENANCY BY THE CUETESY. 
 
 I NOW come to treat of the special or particular CHAP. I. 
 customs, which the courts of law will not take 
 notice of barely on alleging the lands to be of 
 the nature, or tenure of gavelkind, but which 
 ought to be pleaded as specially as other cus- Ante, 24,25. 
 torns; such as, according to the opinion of the 
 Court in the case of Wiseman v. Cotton (ante, 
 p. 25), are not properly incident to, or insepa- 
 rable from the nature of gavelkind, and yet are 
 by immemorial usage, annexed to land of this 
 tenure in the county of Kent, equally with par- 
 tition; and indeed, at this day, are more ex- 
 tensive than that, these still continuing to take 
 place (as has been before observed) even in Ante, p. 42. 
 lands disgavelled. 
 
 I shall first begin with the tenancy by the 
 curtesy of the wife's inheritance in gavelkind.
 
 78 OF TENANCY BY THE CUKTESY. 
 
 BOOK II. This was formerly called the man's * free- 
 
 bench. and differs from the husband's estate by 
 How this , , , , . r 
 
 custom dif- the curtesy of England, both in quantity, it 
 
 fers from the being but of a moiety, and in quality, as it is 
 obtained on more easy terms, for, children are 
 
 not necessary to entitle to it; and indeed, en- 
 joyed upon different conditions, it being liable 
 to be forfeited by the marriage of the tenant. 
 
 But as I have heard some doubt made, whether 
 there be any usage in this County variant from 
 the common law concerning tenancy by the cur- 
 tesy, I shall not content myself with this short 
 account of the peculiarities of this custom, but 
 think it necessary to cite in a more particular 
 manner, what authorities I have found on record, 
 or in the books in support thereof, that no room 
 may be left for future disputes concerning it. 
 Authorities I shall therefore endeavour to shew, 1st, That 
 
 to shew that ^he husband surviving the wife, is, even after 
 is entitled issue had between them, by the custom of Kent 
 
 after issue entitled to no more than a moiety of her gavel- 
 had, only to kind knd and tliat onl ha he liye 
 a moiety as . J 
 
 long as un- married. 
 
 married. 2ndly, That the custom gives him the same 
 
 advantage, though he never had issue by his 
 
 wife. 
 
 The first is generally accounted the more 
 
 doubtful point; but I choose to begin with it, 
 
 because it will appear to be put most beyond 
 
 * Post, Itin. Kane. 39 Hen. 3, rot. 14, in dorso ; rot. 26, 
 in dorso; 9 Ed. 3, 38 a; Somn. 179.
 
 OF TENANCY BY THE CURTESY. 79 
 
 controversy, by the evidence on record as to this CHAP. I. 
 matter, which is very strong, and in order of 
 time as follows : 
 
 Itin. Kane. 39 Hen. 3, rot. 14, in clorso. A cui in vita John le Mose 
 
 by John, le Mose and Juliana his \vife against John Pelte- 7 V : 
 
 / f i i j f Ji- Peltebeam. 
 
 beam, for a messuage and lands in Mulling. 
 
 " Et Johannes Peltebeam venit, et do medietate prsedic- Tenant pleads, 
 
 " torum tenementorura dicit, quod ipse non potest respondere, tnat ne * s SQ *~ 
 
 . / . ' zed but of a 
 
 " quia dicit, quod non tenet prredictam terram nisi in cus- m oiety, and of 
 
 "todiacum quodam Philippo filio suo, cujus jus et haere- thatashisfree- 
 
 "ditas praadicta terra est, et qui est infra aetatem et in cus- Cl ^" t oni o'f 
 
 " todia sua; et de altera medietate dicit, quod tenet medieta- Kent, being the 
 
 "tern illarn tanquam liberum bancum suum, per legem et J" j ltanc . 
 
 " consuetadincm Kancice, eo quod praedictum tenementum 
 
 "fuit jus et haereditas cujusdam Rosamundce, quondam 
 
 " uxoris suns ; et vocat inde ad warrantum praedictum Phi- And prays in 
 
 " lippum filium et haaredem praedictae Rosamundce, qui est ? . f , s ^. n ' 
 
 "infra aatatem. Ideo loquela ista, quantum ad medietatem &c. 
 
 " praedictam, quam ipse tenet in liberum bancum suum sine 
 
 " die, usq. ad aetatem praedicti Philippi ; et de alia medie- 
 
 " tate praedicta, consideratum est quod prasdictus Johannes 
 
 " Peltebeam inde sine die, et Johannes et Juliana in mi'a 
 
 " pro falso clamore." 
 
 Itin. Kajic. 55 Hen. 3, rot. 7. "Assisa venit recognitura Wm.de Hersing 
 "si Simeon de Haliberg et Beatrix uxor ejus, &c. injuste v - 
 
 " disseisiverunt WilVum filium Johannis de Hersing de li- 
 "bero tenemento, &c. Et Simeon et Beatrix uxor ejus Tenantsplead 
 
 "dicunt, quod praedictus WiWus injuste tulit assisam illam*^ at theplain- 
 
 j. j j. , , tiff was enti- 
 
 " contra eos, quia dicunt quod praedictum tenementum, quod t i e( j b ut as te- 
 
 " praedictus WilVus posuit in visu suo, fuit jus et haereditas nant by the 
 "cujusdam Christiance, quondam uxoris suaa, et sororis prae- th'l^'f 5111 
 " dictaa Beatricis, cujus hasres ipsa est ; ita quod idem feited his es- 
 
 " WilVus. vivente prasdicta Christiana uxore sua, tenuit ta ^ e b ^ mar " 
 
 .. A rymg again, 
 
 " pra^dictum tenementum in manu sua, et postea mortua being gavel- 
 
 " eadern Christiana, tenuit idem WilVus prredictum tene- 
 "mentum* per legem Anglia?, sicut ei licuit, quamdiu se 
 
 * The reader may observe, that several of these records take no
 
 80 OF TENANCY BY THE CURTESY. 
 
 BOOK II. "tenuit sine uxore sibi desponsata ; et quia idem WilVus 
 "postea desponsavit quandam uxorem, idem Simeon et 
 "Beatrix, eo quod proles suscepta de praadictis WilVo et 
 " Christiana obiit, posuerunt se in praadicto tenemento no- 
 "mine ipsius Beatricis propinquioris haaredis praedictaa 
 " Christiana, sicut eis licuit secundum legem et consuetu- 
 " dinem tenementorum in gavylkinde." 
 Plaintiff re- " Et praadictus WilVus bene concedit, quod ipse nihil cla- 
 
 plies, that the mat n j g j nom i ne praadictaa Christiana, sed dicit quod prae- 
 lands are not ~* r 
 
 of such nature, "dictum tenementum non est tans naturae, quod mi, qui 
 
 "illud tenent per legem Anglice, illud amittere debeant, 
 
 " licet ad secundas nuptias convolaverunt ; et de hoc se 
 
 Nonsuit. "ponit super assisam. Postea praadictus WilVus non est 
 
 "prosecutus breve suum, &c." 
 
 JohnltGule In eodem itin. rot. 51. "Assisa venit recognitura si 
 v - " Mabilia filia Dyonisice. et alii, iniuste disseisiverunt Jo- 
 
 MabilialeGule. . J .. . 
 
 u hannem le Gule de hbero tenemento suo, &c. 
 
 Tenantpleads, " Et Mabilia et alii venerunt, et Mabilia respondet pro 
 
 t ^ t , tll . e pl*" ." " se et omnibus aliis, et dicit, quod praadictum messuagium 
 
 zed as tenant " e * terras fuerunt perquisitum praadictaa Dyonisia matris 
 
 by the curtesy, "suae, quae nupta fuit praadicto Johanni le Gule, ita quod, 
 
 i^mnTit- " P 03 ' mor tem ejusdem Dyonisits, praadictus Johannes tenuit 
 
 ted waste, and " praadicta tenementa per legem gavelykynd, et quia fecit 
 
 notice that the quantity of the husband's estate by the custom, is 
 different from that by the curtesy of England ; but it will occur at 
 the same time, that the question in them, was not what part the 
 tenant was entitled to at the death of his wife, but only, whether he 
 had by a subsequent act forfeited that estate, whatever it was ; and the 
 conclusion of them all is, that the tenant had lost his estate, so that 
 it became entirely immaterial what he had before. The reasons of 
 the husband's not demanding a moiety only of so many acres, &c., 
 are, 1st, Because he might remain in the whole quousq : partitum fuit, fyc. 
 as appears by the record of Itin. Kane. 21 Ed. 1, rot. 1 (post, 82), 
 where, on this account, though his claim is but of a moiety, he has 
 judgment for the whole. 2ndly, If the action was brought after par- 
 tition made, then he no longer remained tenant of an undivided 
 moiety, but of course counted for the whole of so many acres, as were 
 allotted to him on the partition, as we see in Itin. Kane. 6 Ed. 2, rot. 
 17 (post, 84). The rest of the records put it out of all doubt that 
 lie is but entitled to a moiety.
 
 OF TENANCY BY THE CURTESY. 81 
 
 " vastura et estrapamentum de eodem tenemento, postquam CHAP. I. 
 " aliam uxorem duxerat, praadicta Mabilia intravit in praa- 
 
 " dicta tenementa per capitalem dominum ejusdem feodi, ut *^v" 
 
 " in haareditatern suam, prout ei bene licuit, secundum legem the custom of 
 " et consuetudinem gavelykindorum." gavelkind. 
 
 "Et proadictus Johannes dicit, quod nihil habuit in praa- Plaintiff re- 
 "dictis tenementis nomine praadictaa Dyonisice, quia dicit i^ds are^f his 
 "quod tenementa fueruut perquisiturn suum, &c." own purchase. 
 
 "Juratores dicunt, super sacramenturn suura, quod pro?- Verdict and 
 "dictum tenementum fuit jus predicts; Dyonisice, uxoris thVtenant r 
 " praadicti Johannis, qui tenementum illud posted tenuit per 
 " legem Angliaa, el quia idem Joliannes secundd maritavit, et 
 "fecit vastum et venditionem de praadictis tenementis, praa- 
 " dicta Mabilia intracit in praadicta tenementa, secundum 
 " quod ei licuit per legem Kanciaa. Ideo consideratum est, 
 " quod praadicta Mabilia et alii eant inde sine die, et praa- 
 ' diclus Johannes nihil capiat per assisam, sed sit in mi'a, &c." 
 
 Itin. Kane. 7 Ed. 1, rot. 3, in dorso, Rex Roll. In an Wm.de Hormes- 
 assize brought by William and Thomas, sons of Hugh de deshoiiv.Amet. 
 Hormesdesholl, against Stephen Arnet, for a messuage and Tenantpleads, 
 two acres of meadow in Westbere, the tenant pleads, that the . at eisin "? 
 premises in question "fuerunt jus et haareditas Juliana, England. 
 "quondam uxoris suaa, &c., quaa inde obiit seisita, de qua 
 "ipse suscitavit prolem, unde dicit, quod nihil clamat in 
 " prasdictis tenementis, nisi per legem Anglice, ratione prae- 
 " dictoe prolis ex ea suscitatre, &c." 
 
 "Et iidem WiWus et Thomas dicunt, quod praadictus Plaintiffs re- 
 
 " Stephanus nihil clamare potest in tenementis praadictis Py tn e custom 
 
 r v or gavelkind, 
 
 " per legem Anglice, quia, dicunt quod praadictum tenemen- to forfeit by 
 
 " turn tenetur in gavelekynde, et consuetudo de gavelekynde second mar- 
 " talis est, quod cum aliquis desponsavit mulierem habentem 
 " hcereditatem, et ex ea suscitavit prolem, et post mortem 
 " illius mulieris, aliam duxerit in uxorem, hceredes primce 
 " mulieris habent actionem petendi hcereditatem primce uxoris ; 
 " et dicunt, quod pranlictus Stephanus post mortem praa- 
 " dicta3 Jaliance, primaa uxoris suaa, matris praadictorum 
 " JViWi et Thomce, duxit quandam uxorem quaa adhuc su- 
 " perstes est. Postea venit jurata, et dicit quod talis est Verdict finds 
 " consuetudo patrice, qualis praadicti Will' us et Thomas dicunt, the custom,&c. 
 
 M
 
 82 
 
 OF TENANCY BY THE CURTESY. 
 
 BOOK II. 
 
 Judgment for 
 the plaintiffs. 
 
 Stoc 
 ;? ^ ri ' r T 
 
 Plaintiff enti- 
 ties himself to 
 a moiety as te- 
 nant by the 
 curtesy, ac- 
 
 custorn of 
 gavelkind. 
 
 "et quod prgedictus Stephanus quandam aliam in uxorem 
 "duxit, quae adhuc superstes est. Ideo consideratuna est, 
 "quod praedictus WilVus et Thomas recuperent seisinam 
 
 The whole 
 county find the 
 custom. 
 
 Itin. Kane. 21 Ed. 1, Berewicke Roll, rot. 1, in dorso. 
 ^ n an ass ' ze brought by William Stoc against Robert, son 
 of Robert de Thirling, for lands in Slurry and Wesibere, 
 the tenant pleads in bar, that he is son and heir of Maud 
 of Wesibere, who died seized of the premises in question. 
 The plaintiff in his replication, admits that Maud died 
 
 se i ze <] "sed dicit quod ipse desponsavit praedictam Matil- 
 
 , A . . . . 
 
 dam, de qua suscitavit prolem, ratione cujus prohs, ipse 
 
 "habere debet medietatem totius tenement! de quo ipsa 
 "Matilda obiit seisita, per consuetudinem Kancice, eo quod 
 " tenementa prasdicta tenentur in gavelykende, et in eodein 
 "morari debet, quousq. partitum fuerit inter ipsum et 
 " hgeredem." 
 
 The tenant rejoins, and confesses that the plaintiff had 
 issue by Maud, " sed dicit quod WiWus ea ratione de tene- 
 " mentis quae tenentur in gavylekende secundum consuetu- 
 " dinem Kancice nihil habere debet ; et hoc paratus est 
 " verificare." 
 
 "Et quia TOTUS COMITATUS* recordatur, quod 
 
 * Issues joined on any custom of the County of Kent, were, 
 even before the stat. 4 Anne, c. 16, tried by a jury of the body of the 
 County, as appears by a record between Beddyl and Crouther (Mich. T. 1 1 
 Hen. 8, B. R. rot. 88), where, the issue being on the custom of Kent, it 
 is entered on the roll, that the Court of King's Bench before they 
 awarded the venire to the Sheriff to return the jury, consulted with the 
 Judges of the Common Pleas about the manner of it, and then, because 
 the said issue touched and concerned the commonalty of the County 
 of Kent, awarded the verire de corpore comitatus. And in this, the 
 Court seem to have imitated the ancient practice of the Justices in 
 Eyre, who, on questions concerning the customs of this County, often 
 consulted as the records testify (supra, and post, chap. 3), totum 
 comitatum ; by which expression may possibly be meant, all those that 
 were bound by the general summons to give their attendance on that 
 Court, and who they were appears by the writ in Bracton, lib. 3, c. 11, 
 page 109 b. " Eex vie. salutem. Summoneas per bonos summoni- 
 tores, omnes Archiepiscopos, Episcopos, Abbates, Priores, Comites,
 
 OF TENANCY BY THE CURTESY. 83 
 
 " quilibet vir qui desponsaverit mulierem, quce tenementa CHAP. I. 
 
 " habct de hcereditate sua, et de ipsa prolem suscitaverit, 
 
 "post mortem ejusdem uxoris, habere debet medietatem totius 
 " hcereditatis ejusdem tenendam ad terminum vita SUCK, nisi 
 "pritis aliam duxerit uxorem. Ideo consideratum est, quod 
 "pradictus JYill'us recuperet seisinam suam de prasdictis 
 " tenementis." 
 
 In eod. itin. rot. 41. An assize brought against Salomon, Salomon de At- 
 son of Hugh de Atteseld, who pleads non-tenure in the tesellfs case - 
 following special manner : " Venit et dicit, quod prasdictum Tenant pleads 
 " tenementum fuit de gavelecund, et quod quaedam Christiana, n n t "u e ?J! re ^ d 
 "quondam uxor sua, obiit inde seisita ut de feodo, post been tenant by 
 
 "cuius mortem, praedictus Salomon tenuit tenementa prae- the curtesy, 
 
 but had for- 
 " dicta per legem Anglife, quousque secundam uxorem des- f e jted by the 
 
 " ponsaverat, per quod incontinent! per consuetudinem de custom of ga- 
 
 " gavelecund forisfecit ipse tenementa prasdicta ; et liberum Carrying ^ 
 
 " tenementum eorundem tenementorum fuit quarundam Jo- again. 
 
 " hannce et Margerice, filiarum ipsorum Salomon et praadictas 
 
 " Christiana, et quod Christianas prasdictee Johanna et Mar- 
 
 " geria haoredes sunt ; inde dicit quod ipse non tenet." And 
 
 issue is taken on the non-tenure. 
 
 " Juratores dicunt super sacramentum suum, quod pras- The jury find 
 " dicta Christiana obiit seisita de tenementis prajdictis ut de a 
 "feodo, post cujus mortem, prcedictus Salomon tenuit tene- 
 "menta praedicta per legem Angli<e, quousque secundam 
 " uxorem suam desponsaverat, per quod incontinent! postea 
 " liberum tenementum prajdictum tenementum fuit prasdictas 
 "Johanna et Margerice, ut hasredum praadistaa Christiana, 
 " sicut pracdicitur, undo dicunt quod prsedictus Salomon die 
 "et anno, &c. non tenuit, &c." 
 
 In eodem itin. rot. 70. In an assize brought for lands, In assize, the 
 
 ,, . , ,. ., iury find that 
 
 part at common law, and part gavelkmd, "juratores super ^tenant b 7 
 
 Barones, Milites, et libere Tenentes de tota balliva tua, et de qualibet 
 villa quatuor legates homines et prtepositum, et de quolibet burgo duodecim 
 legales burgenses per totam ballivam tuam, et oranes illos, qui coram 
 justiciariis iiitinerantibus venire solent et debent, quod sint apud 
 talem locum tali die, &c. coram dilcctis, &c. quos justiciaries nostros 
 constituimus, audituri, et fivcturi prjcceptum nostrum." 
 
 M 2
 
 84 OF TENANCY BY THE CUHTESY. 
 
 BOOK II. " sacramentum dicunt, quod prasdicta tenementa fuerunt jus 
 
 "prnedictai Alicia, matris praedicti Johannis, et quondam 
 
 eavelkimF " uxoris predict! Will'i, de qua idem WilVus prolem susci- 
 
 shall have but " tavit, ratione cujus prolis, idem WilVus remansit in eisdem 
 
 a moiety by tenementis post mortem praedictre Alicics, ut in illis qua? 
 the custom. 
 
 " tenere debiut per legem Angha*, quousq : prnsdicti Jonan- 
 
 "nes, &c. ipsum injuste disseisiverunt ; dicunt etiam, quod 
 ' qucedam pars prcedictorum tenement orum tenetur in gavele- 
 " kende, unde pr&dictus Will'us tantum habere debet medie- 
 " tatem, secundum consueludinem comitatus istius. 
 
 P.deMerdale " Itin. Kane. 6 Ed. 2, rot. 17. Assisa venit recognitura 
 
 WmdeMerdale " s * WilVus, filius Petri de Merdale, et alii, injuste, &c. dis- 
 
 "seisiverunt Petrum de Merdale de libero tenemento suo in 
 
 " Rainham et ffartlip, &c. Unde queritur quod disseisiverunt 
 
 "eum de uno messuagio, decem acris terras, et octo solidatis 
 
 "redditus cum pertinentiis, &c. 
 
 Tenant pleads, " Et praidictus WilVus filius Petri re c pondet ut tenens, 
 
 that the plain- ,< ^^ et fa c ^ vj p ra3( 3i c t us Petrus iniuste tulit assisam 
 
 tin was never 
 
 seized, &c. " istam versus eum, &c. quia dicit, quod idem PetruK nun- 
 
 "quam fuit in seisina de pra;dictis tenementis cum perti- 
 "nentiis, ut de libero tenemento suo, ita quod potuit dis- 
 "seisiri, et de hoc se ponit super patriam, et procdictus 
 " Petrus similiter, ideo capiatur assisa. 
 
 The jury find "Juratores dicunt super sacramentum suum, quod pra?- 
 " dicta tenementa, quas praadictus Petrus posuit in visu suo, 
 " et unde queritur se disseisin, tenentur in gavelykynde, et 
 "sunt medietas unius messuagii, viginti acrarum terra), et 
 "sexdecim solidatorum redditus cum pertinentiis, quas ali- 
 "quo tempore fuerunt in seisina predict! Petri et cujusdam 
 " Agnetis, quondam uxoris ipsius Petri, ut de jure et hrcre- 
 "ditate ipsius Agnetis. Qui quidam Petrus procreavit de 
 " ipsa Agnete duos filios, scil. praddictum WiWum, filium 
 
 that the plain- " Petri, et quondam Rogerum, post mortem cujus Agnetis, 
 was^eize medietas eorundem tenementorum, secundum consuetudinem 
 
 of the inheri- " de gavelykynde, remansit et remanere debuit prcedicto 
 
 tance of his Petro, tenenda eidem Petro ad terminum vitce ipsius Petri, 
 
 late wife, by f 
 
 the custom of soil, quamdiu sine aha uxore ducenda se teneret ; et alia 
 
 gavelkind, to medietas eorundem tenementorum, inter prsedictum TVilVum, 
 "filium Petri, et Rogerum, fratrem ejus, asqualiter partita
 
 OF TENANCY BY THE CURTESY. 85 
 
 "fuit; et dicunt quod postea, praadicto WiWo filio Petri CHAP. I. 
 
 " aitatis quindecim annorum existente, quando idem Will'us 
 
 "fuit plena tetatis, secundum consuetudinern de gavelykyn.de, And being sei- 
 
 " soil, post quintum decimum annum completum, per quod- a^the^ee* 1 ^ 
 
 "dam scriptum confectum apud London, concessit et dimisit I5released,&c. 
 
 "prasdicto Petro omncs terras et tenementa cum pertinentiis, 
 
 " qua? habuit, sive habere potuit in villis praedictis, per suc- 
 
 "cessionem htereditariam de praadicta Agnete matre ipsius 
 
 " WilM, tenendum eidem Petro ad terminum vita? ipsius 
 
 " Petri ; praedictis tenementis, unde assisa ista arrainata est, 
 
 " in seisina praadicti Petri existentibus ; qui quidem WilVus, 
 
 " postea rediens ad pra?dicta tenementa, factum suum prae- 
 
 " dictum patriae notificavit et ratum habuit. Et dicunt, And that the 
 
 " quod praedictus Petrus postmodum se maritavit et cepit P laintlff aft . er - 
 
 VJ wards married 
 
 " uxorem, et quod prasdictus Rogerus frater postnatus, quam- a second wife, 
 
 "cito constabat ei quod prasdictus Petrus maritavit se ut and u P on the 
 "prasdictum est, vendicavit residuum prcedictte medietatis, oneofthesons 
 " quam prcedictus Petrus tenuit secundum consuetudinern delivered to 
 " prcedictam, qua ei accrevit ratione quod idem Petrus cepit J^ ty ^f^the" 
 " uxorem, et quod idem Petrus medietatem dictaa medietatis, said moiety as 
 " quam idem Petrus tenuit per prjedietam consuetudinem de forfeited - 
 "gavelykynde de proparte ipsius Rogeri, liberavit eidem 
 " Roger o. Et quod praedictus Will'us querens, sciens quod But Wm. made 
 
 "praedictus Petrus pater suus ceperat uxorem sicut prae- n im 
 
 r above a year 
 
 " dictum est, nullum clameum apposuit versus ipsum Petrum and a half, &c. 
 
 " pro parte sua de hoereditate habenda, sed morabatur cum 
 
 "ipso Petro per unum annum et dimidium, postquam idem 
 
 " Petrus cepit praedictam uxorem suam secundam, absq. 
 
 " aliquo impedimento praedicto Petro inde faciendo ; et sic 
 
 "idem Petrus remansit in seisina de praedictis tenementis, 
 
 " per totum tempus prasdictum pacifice, quousq. praedictus 
 
 " WilVus films Petri ipsum Petrum inde ejecit. Ideo consi- 
 
 " deratum est, quod praadictus Petrus recuperet seisinam Judgment for 
 
 " suam de medietate praadictorum tenementorum, unde que- * hc ^"^ ^ 
 
 "ritur se disseisiri, scil. de ilia medietate, quaa cecidit in the tenant ha4 
 
 " propartem prasdicti WtlVi filii Petri, quando participatio released, &c, 
 
 "praedicta facta fuit inter ipsum WilVum et Rogerum fra- 
 
 " trem ejus ut prajdictum est, per visum recognitorum, et 
 
 " damna sua, qua3 taxantur per eosdem ad unam marcam ;
 
 86 
 
 OF TENANCY BY THE CURTESY. 
 
 BOOK II. 
 
 Back 
 v. 
 
 Claver. 
 
 "et WiWus filius Petri in mia, &c. Et quoad aliam medie- 
 " tatem eorundem tenementorum, qute reraansit prsedicto 
 " Petro post mortem praedictae Agnetis, tenenda eidem Petro 
 "secundum consuetudinem de gavelykynde, in forma prae- 
 " dicta ut praedictum est, dies datus est eis de audiendo 
 "judicio suo hie die Martis, &c. Postea ad ilium diem venit 
 " prsfidictus Petrus, et alii non venerunt ; et quia per assisam 
 " praedictam compertum est, quod praadictus WilVus * secun- 
 " dum consuetudinem de gavelykynde, tempore quo concessit 
 "et dimisit pragdicto Petro praedictam medietatem, quae ei 
 " remansit, &c., et factum suum cum patria ista ratum 
 "habuit, moram faciens cum praedicto Petro ut praedictum 
 "est ; et quod idem Petrus seisinam suam inde continuavit, 
 " quousq. praedictus WiWus postea per longum tempus ip- 
 " sum Petrum inde contra factum suum ejecit, consideratum 
 "est quod pradictus Petrus recuperet inde seisinam suam 
 " per visum recognitorum, et damna sua, quae taxantur per 
 " eosdem ad unam marcam ; et WilVus in mia ; et similiter 
 " praedictus Petrus in mia pro falso clamore versus alios in 
 "brevi, &c." 
 
 There is a report of this last case among others 
 of the same Eyre, given to Lincoln s Inn Library 
 by Hale, Ch. Just. 
 
 And it appears further by John Scerre's case, 
 to be found inter plac. ass. in com. Kane. 3 Edw. 
 2 ; Alexander de Greenhethe's case, Ass. in eod. 
 com. 15 Edw. 2 ; Robert le Pykocs case, Ass. in 
 eod. com. 17 Edw. 2, and 19 Edw. 2; and Wil- 
 liam de AdehuHegate's case, Ass. in eod. com. 19 
 Edw. 2; that tenant by the curtesy of gavelkind 
 lands is entitled but to a moiety. 
 
 Mich. T. 13 Rich. 2, C. B. rot. 645, Kane. In an action 
 of trespass brought by Richard Back and William Holy 
 
 * The words fuit plena <rtatis, seem to be left out of the record, for 
 they are necessary to complete the sense.
 
 OF TENANCY BY THE CURTESY. 87 
 
 against Thomas Claver, for breaking their close at Bap- CHAP. I. 
 child and Tong, &c., and cutting down the corn, &c., the 
 
 Defendant pleads, " Quod quredam Godelina Claver, quae Defendant 
 
 "fuit uxor ipsius Thomce Claver. fuit seisita de uno mes- pl ea ds the cus- 
 
 tom of gavel- 
 
 "suagio et septem acris teme cum pertmentns in prce- kind for the 
 
 " dicta villa de Bapchild, in dominico suo ut de feodo, qua3 husband to 
 
 " tenementa sunt de tenura de gavelkynde in comitatu Kan- O f t h e estate 
 
 "cice, et inde obiit seisita, et secundum consuetudinem de of his late wife, 
 
 " tenura de gavelkynd de tenementis, unde mulieres sic sei- 1 
 
 " sitaa sunt, viri post mortem earundem mulierum, debent and entitles 
 
 " tenere medietatem tenementorum illorum pro indiviso nimse b F ltt 
 
 " [ * simul cum haeredibus] earundem mulierum, dum tamen 
 
 " viri prasdicti se tenent non maritatos ; et dicit quod prae- 
 
 " dicta Godelina obiit seisita de tenementis praedictis in 
 
 " Bapchild, unde locus, in quo ipsi supponunt transgres- 
 
 "sionern praedictam fieri, est parcella ; post [cujus mortem] 
 
 "praadicti. Ricardus Back et WilVus Holy tenementa prae- 
 
 " dicta unde, &c. intraverunt, et terram inde seminaverunt, 
 
 ". . . Thomas Claver ut vir ejusdera Godelince, pro 
 
 "eo quod ad ipsum pertinuit habendum medietatem secun- 
 
 "dum [consuetudinem] praadictam, intravit tenementa prae- 
 
 " dicta, et medietatem bladorum super terram praedictam 
 
 " seminatorum messuit, prout ei bene licuit, &c." 
 
 The Plaintiffs reply, " Quod consuetude de gavelkynd Plaintiffs re- 
 
 "talisest, quod si huiusmodi viri et mulieres habeant exi- P 1 .^ That the 
 _ ... custom is tor 
 
 "turn inter se, quod [tune] hujusmodi viri habebunt me- the husband to 
 
 " dietatem terrarum et tenementorum mulierum praedictarum, have a moiety 
 
 r .. . . . arter issue had, 
 
 " dum tamen se tenuerint [non] maritatos, et si contmgit b ut not O ther- 
 
 " hujusmodi viros et mulieres non habere exitum inter se, wise, &c. 
 " [tune] post mortem mulierum prredictarum, non debent 
 "habere aliquam partem terrarum et tenementorum muli- 
 "erum preedictarum, [et dicunt] quod prasdicta Godelina 
 " obiit sine hajrede inter so et pragdictum Thomam Claver 
 "exeunte; et hoc parati sunt verificare, unde petunt judi- 
 " cium et damna, &c." 
 
 * The roll being much damaged by wet, is obliterated in all the 
 places between the [ ] and supplied only by the sense.
 
 88 Or TENANCY BY THE CUKTESY. 
 
 BOOK II. " Et prgedictus Thomas dicit, quod consuetude de gavel- 
 
 " kind talis est, quod sive hujusmodi [viri et mulieres] ha- 
 
 Defendant re- " beant exitum, sive non, quod viri post mortem earundem 
 
 joins, that the " mu i; eru m debent habere medietatem tenendam in forma 
 
 custom gives , v . 
 
 the husband a " superius per ipsum Thomam declarata ; absq. hoc quod 
 
 moiety, whe- aliqua talis consuetudo habetur in gavelkynde, prout prae- 
 
 ther there , * ; v r 
 
 were issue or dictus Ricardus Back et frill us Holy superius allegave- 
 
 not, and tra- "runt ; et de hoc se ponit super patriam, &c., et prajdictus 
 torn allegedly " Ricardus Back et WllVus Holy similiter. Ideo, &c. pra> 
 the plaintiffs. " ceptum est vicecomiti quod venire, &c. Ad quern diem 
 Issue thereon, "venerunt partes pnedictre, et vicecomes non misit breve. 
 
 " Ideo sicut prius, &c. ad recognoscendum, &c." But there 
 
 is no verdict entered. 
 
 And lastly, 
 
 Wood j n an ejectment between Wood, on the demise of Walsh 
 
 Jeffe'ries. an< ^ Baker against Jefferies, tried at the summer assizes for 
 Kent in 1739, before Ch. Just. Lee, it was found to be the 
 custom of Kent, that the husband, who has issue by his 
 wife, shall be tenant by the curtesy of a moiety only of her 
 gavelkind lands. And accordingly, Baker, the tenant by 
 the curtesy, had a verdict for a part only. Indeed, the 
 premises in question being of small value, the matter was 
 not greatly contested ; the proof of the custom was by two 
 attornies of note, who gave evidence of the general repu- 
 tation of the County, and nothing was attempted to be 
 proved to the contrary. 
 
 Authorities I shall proceed to shew in the next place, that 
 J? shew tha j the custom of Kent, though less indulgent than 
 
 the husband ' 
 
 is entitled to the curtesy ol England to such husbands as have 
 a moiety as issue by their wives, is more favourable than 
 lives unmar- ^ e c mm o n law to those that have none, giving 
 ried, though them an equal advantage with the others, viz. 
 no issue had. ^ moiety as long as they live unmarried. And 
 notwithstanding this be made a doubt, in the re- 
 cord last cited of Mich. T. 13 Rich. 2, yet, that 
 case is, in some measure, an authority for the
 
 OF TENANCY BY THE CUKTESY. 89 
 
 custom ; for, the defendant, who claimed to be CHAP. I. 
 tenant of a moiety, though no issue had, having 
 taken possession of the premises, the not bringing 
 on the cause to trial, was a kind of tacit acqui- 
 escence in his right. And though some of the 
 foregoing records, which say, that ratione prolis 
 suscitatce, <"c. tenuit, seem to make that a previous 
 qualification, yet, they are properly explained 
 and answered by the following authorities : 
 
 "If a man take a wife that has inheritance of gavelkind, 
 '' and the wife dies before him, let the husband have the 
 " moiety of those lands and tenements, whereof she died 
 "siczed, so long as he holds himself a widower, without 
 " doing any estrepement, waste, or exile, whether there were 
 "issue between them, or not; and if he take another wife, 
 " let him lose all." (Custumal of Kent, post.) 
 
 In a writ of dower brought for a moiety, in Itin. Kane. B. de Bendlngs 
 25 Hen. 3 (to be found in the Appendix to Somner on T , v - 
 
 r^ n !t\ i T> 'c i -n j. j r> j- The Prior of the 
 
 Gavelk. 179), by Biirga late wire ot Peter de Bendings jj i y Trinity, 
 against the Prior of the Holy Trinity in Canterbury, the Canterbury, 
 demandant dicit, " quod manerium est gavelkinde et partibile, 
 "ita quod, Robertus de Valoignes dominus de Sutton, qui 
 " duxerat in uxorem Matildam de Welles, cujus h&reditas 
 " illud manerium fuit, post mortem illius Matildas, habuit 
 " nomine franci banci medietatem illius manerii" And no 
 mention is made of any issue between them. 
 
 Nor is having issue set out, as necessary to 
 entitle the husband to a moiety, by the following 
 record : 
 
 Itin. Kane. 39 Hen. 3, rot. 26, in dorso. "Assisa venit Roger le Linus 
 "recognitura si Andreas Co/tin, custos terras et lueredis 
 "Laurence filii Johannis le. Bretun, et alii, injuste et sine 
 "judicio disseisiverunt Rogerum le Linus de libero tene- 
 " mento suo in suburbio Cantuar. Et undo queritur quod 
 " disseisiverunt cum de medietate undecim acrarum terra?, 
 
 N
 
 90 
 
 OF TENANCY BY THE CURTESY. 
 
 BOOK II. 
 
 The Plaintiff 
 makes title as 
 tenant by the 
 curtesy of a 
 moiety, by the 
 custom of 
 gavelkind. 
 
 Verdict and 
 judgment for 
 the plaintiff. 
 
 " &c. Et dicit, quod praadicta terra aliquo tempore fuit jus 
 " et haareditas cujusdam Godelince quondam uxoris suas, et 
 " ipse Rogerus post mortem prcedictce Godelince, fuit in 
 " seisina de medietate prcedictce terrce, ut de libero tenemento 
 " suo, secundum consuetudinem Kancice, per magnum tempus 
 " quousq. praedictus Andreas et alii inde ipsum disseisiverunt. 
 
 " Et Andreas et alii veniunt, et Andreas dicit, quod in- 
 " juste tulit istam assisam, quia dicit, quod praadictus Rogerus 
 "nullum liberum tenementum potuit clamare in praadicta 
 "terra, post mortem praadictaa Godelince uxoris sua3, quia, 
 " bene cognoscit quod praadicta terra fuit jus et haareditas 
 "praadictae Godelince uxoris suas, sed dicit, quod praedictus 
 "Rogerus, antequam prasdictam Godelinam desponsasset, 
 " concessit ipsi Godelince quod si contingeret ipsam decedere 
 " ante praadictum Rogerum, quod idem Rogerus nihil cla- 
 "mare posset in aliqua parte praedictorum tenementorum 
 "ratione liberi band sui, sed praadicta tenementa descen- 
 "dere deberent ad haaredes ipsius Godelince ; et dicunt, quod 
 " hac ratione posuit se in seisina quaadam Lauretta de praa- 
 " dictis tenementis integre ; unde dicunt, quod si praedictus 
 " Rogerus disseisitus sit de praadictis tenementis, per ipsos 
 " non est disseisitus, immo per praedictam Laurettam ; et 
 " de hoc se ponit super assisam. 
 
 " Juratores dicunt, quod praadictus Rogerus per magnum 
 " tempus post mortem prcedictce Godelinaa, fuit in seisina de 
 "medietate prcedictorum tenementorum ut de libero banco 
 "suo, et postea venerunt praedictus Andreas et alii, et ipsum 
 " de praadicta medietate ejecerunt ; unde dicunt quod prse- 
 " dictus Andreas et alii praadictum Rogerum injuste disseisi- 
 "vcrunt. Ideo consideratum est, quod praadictus Rogerus 
 "recuperet seisinam suam per visum juratorum, et praadictus 
 " Andreas et alii in mia." 
 
 Pasc. 16 Ed. 3, Fitzh. Aid, 129. It is pleaded, "that the 
 " husband held the land of his wife by the usage of gavelkind, 
 " though they never had any issue between them," and not 
 denied. 
 
 Pasc. 19 Ed. 3, Aid, 144. It is pleaded, "that by the 
 " usage of gavelkind in Kent, the husband shall, after the 
 " death of the wife, hold the moiety of the lands of the in-
 
 OF TENANCY BY THE CUKTESY. 91 
 
 " heritance of tlie wife, as long as he lives unmarried." And CHAP. I. 
 it is mentioned in the case, that the wife died without issue.* 
 
 In the case of Dane v. Johnson et al, (Pasc. 4 Eliz. C. B. 
 rot. 1022, Kane. Co. Ent. 602), it is pleaded, " that the lands Johnson. 
 " are, and from time to the contrary whereof, &c. have been, 
 "of the nature and tenure of gavelkind in the county of 
 " Kent ; and that the husband of every wife dying seized of 
 "any lands or tenements in the said County, of the said 
 " nature or tenure, in her demesne as of fee-simple or fee- 
 " tail, according to the custom in the said County, for all the 
 " time aforesaid used and approved, ought, and have used to 
 " hold and enjoy the moiety of all such lands and tenements, 
 " of which such wife died seized as aforesaid, after the death 
 " of such wife so dying seized as aforesaid, during the life 
 "of such husband, if such husband lived sole and unmar- 
 " ried ; and that the said Nich. was, and yet is seized of the 
 'said moiety, with the appurtenances, in his demesne as of 
 "freehold, as tenant thereof by the custom aforesaid." 
 
 It appears indeed by the above case, that the husband 
 had issue by his wife, but that circumstance is not supposed 
 to be necessary, the custom being pleaded in general for the 
 husband of every wife. 
 
 " By the custom of gavelkind, a man shall be tenant by 
 " the curtesy without having any issue." (Co. Litt. 30 a, 1 1 1 
 a.) And the same thing is agreed in Browne v. Brookes 
 (2 Sid. 153), and Wiseman v. Cotton. (Raym. 76.) 
 
 " Tenant by the curtesy of Kent of gavelkind lands, whe- 
 " ther he have issue or not, until he marry." (Noy's Max. 27.) 
 
 " By the custom of Kent, if the wife is seized of gavelkind 
 " lands, and dies without having had issue by her husband, 
 " he shall be tenant by the curtesy of half the lands, so long 
 " as he lives unmarried ; but if he marry again, he shall for- 
 "feit his estate in the land." (Mich. T. 22 Car. 1, B. R. 
 Style's Pract. Reg. 314, 322.) 
 
 " Maritus uxoris decedentis, sive liberos ex ea susceperit, 
 " sive non, terras hujus generis [gavelkind] accipit ex semisse, 
 ''quamdiu manet innuptus" (Tho. Smith de Rep. Angl. 109.) 
 
 * In the printing of that case the words le Baron are misplaced. 
 
 M 2
 
 OF TENANCY BY THE CURTESY. 
 
 BOOK II. Add to these, tins verdict in the very point : 
 
 W. le Pede 
 
 v. 
 W.deJDagenham. 
 
 Tenants make 
 title as heirs to 
 their mother. 
 
 Plaintiff re- 
 plies, that he 
 is entitled to a 
 moiety as ten- 
 ant by the cur- 
 tesy, by the 
 custom of 
 gavelkind, 
 though no 
 issue had. 
 
 Verdict finds 
 the custom 
 accordingly. 
 
 " Ass. in Com. Kane. 16 Ed. 2. Assisa venit recognitura 
 "si WilVus de Dagenham et Johannis de Estlond, injuste, 
 " &c., disseisiverunt Will'um le Pede de libero tenemento 
 " suo in Stoke, in Hoo, et villis SanctcB Maries, Sanctce Wer- 
 " burgee et omnium sanctorum in Hoo post primam, &c., et 
 "unde queritur, quod disseisiverunt eum de medietate tri- 
 " ginta quinque acrarum terrae, et quatuor viginti acrarum 
 " marisci cum pertinentiis. 
 
 " Et WilVus de Dagenham et Johannes veniunt, et re- 
 "spondcnt ut tenentes, &c., et dicunt, quod assisa inde inter 
 "eoa fieri non debet, quia, dicunt quod qujcdam Margeria 
 "mater ipsorum WUVi et Johannis, cujus haeredes ipsi sunt, 
 "aliquando tenuit prredicta tenementa in visu posita, et inde 
 "obiit seisita in dominico suo, &c., secundum consuetudinem 
 "de gavelykynde, post cujus mortem ipsi intraverunt ut 
 "haeredes &c., et praedictus WilVus Pede, qui fuit vir ipsius 
 "Margerice, intrusit se in praedictis tcnementis, et ipsi hoc 
 "permittere noluerunt pro eo quod non fuit exitus inter eos ; 
 "unde petunt judicium si de hac intrusione assisam inter eos 
 " habere debeat. 
 
 " Et WilVus Pede dicit, quod secundum consuetudinem de 
 "gavelykynde, quilibet vir habere debet medietatem terrarum 
 "et tenementorum, qua) fuerunt uxoris sure de haereditate 
 "sua, ad tenendum ut liberum tenementum suum dummodo, 
 " &c., unde dicit quod secundum consuetudinem praedictam, 
 " ipse intravit in prasdicta tenementa, sicut ei bene licuit, et 
 "inde fuit seisitus ut de libero tenemento suo, quousq. prae- 
 "dicti WilVus Dagenham et Johannes ipsum inde injuste 
 "disseisiverunt, &c. Et WilVus et Johannes dicunt, quod 
 " non est hujusmodi consuetude in Kancia de tenementis de 
 "gavelkynde; et de hoc ponunt se super assisam, et prac- 
 " dictus WilVus Pede similiter : ideo capiatur assisa. 
 
 " Juratores de assensu partium electi dicunt super sacra- 
 "mentum suum, quod consuctudo de gavelykynde talis est, 
 " quod quilibet vir habere debet post mortem uxoris, medie- 
 " tatem omnium terrarum et tenementorum, quce fuerunt 
 " ipsius uxoris de hfereditate sua, sive habeatur exitus, sive
 
 OF TENANCY BY THE CURTESY. 93 
 
 " non, ad tenendum ut liberum tenementum suum, quousque CHAP. I. 
 
 " eaforisfecit secundum consuetudinem prcedictam. Et quia 
 
 " praedictus WilVus Dagenham et Johannes satis cognove- 
 
 " runt in curia, quod prjedictus WiWus Pede seisitus fuit de 
 
 " tenementis in visu positis, et per eos disseisitus, ideo con- Judgment for 
 
 " sideratum est, quod recuperet inde seisinam suam per visum ie P laint1 "- 
 
 " recognitorum, et similiter damna sua, quae taxantur per 
 
 "juratores ad tresdecim solidos et quatuor denarios ; et 
 
 " WilVus de Dagenham et Johannes committuntur goalae. 
 
 "Postea fecerunt finem cum domino rege pro quadraginta 
 
 "denariis, &c." 
 
 And to close all, this custom, as set down in 
 the Custumal, more beneficial in one respect than 
 the common law, that the husband shall hold 
 over, though he never had issue by his wife, but 
 less in others, viz., that he shall have but one 
 half, though he have issue, and that with a pro- 
 hibition of second marriage, Mr. Lambard, who 
 was well acquainted with the state of the County, 
 affirms to have holden place, and to have been 
 put in practice in his time. (Peramb. f^f .) And, 
 according to the best inquiry I have been able 
 to make, the same is the general reputation of 
 the County at this day. 
 
 There is a law among those of Hen. 1, that The rise of 
 may give some colour to a conjecture, that this thls custom - 
 custom took its rise from the common source of 
 our gavelkind customs, the old common law : It 
 is the 70th law of that King, where, after men- 
 tion of the wife's dower in case she survived her 
 husband, it is said, " Si mulier absque liberis mo- 
 "riatur parentes* ejus cum marito partem suam 
 " dividant." 
 
 * Here the word parentes signifies kindred, or relations in
 
 BOOK II. 
 Of waste. 
 
 OF TENANCY BY THE CURTESY. 
 
 Tenant by the curtesy by this custom, has no 
 more power of committing waste, than such 
 tenant by the common law. (Custumal of Kent, 
 post; Itin. Kane. 55 Hen. 3, rot. 51, ante, 79 ; 
 Lamb. Peramb. .) 
 
 general, according to the signification of the French word 
 parent, and is so used several times in the same laws. (Vide 
 75th law, Hen. 1 ; et vide stat. Merton (20 Hen. 3), c. 6 ; 
 Litt. sect. 108.)
 
 95 
 
 CHAP. II. 
 
 OF DOWER. 
 
 THE customary dower of lands in gavelkind, CHAP. II. 
 was formerly called by the name of free bench. 
 (Itin. Kane. 39 Hen. 3, rot. 4, and rot. 19, post; 
 Itin. Kane. 55 Hen. 3, rot. 60; 25 Hen.3, App. 
 to Somn. 178.) 
 
 The several qualities whereof different from the 
 common law, may be considered under the fol- 
 lowing heads : 
 
 1st, Of what part the widow shall be endowed. 
 2nd, The conditions by which her estate may be 
 defeated. 3rd, Of what things she shall be en- 
 dowed. 4th, What remedies she may have for 
 her dower. 5th, The manner of demanding this 
 custom.ary dower. 6th, The manner of assign- 
 ment. 7th, Of waivure of her customary dower. 
 
 1st. By the custom of Kent, the wife, after the Of what 
 
 death of her husband, shall have for her dower, P?? , 
 ' ' widow shall 
 
 a moiety of all his lands and tenements of the be endowed. 
 
 nature of gavelkind. (Lamb. Peramb. f ^f ; Stat. 
 
 de Consuet. Kane, post; Stat. de Pnerog. Regis 
 
 (17 Edw. 2), c. 16; 7 Edw. 2, Mayn. 236; Itin. 
 
 Kane. 8 Edw. 2, Assize, 386 ; 13 Edw. 3, View, 
 
 104; F. N. B. 150, O; Cro. Eliz. 121, 825; 21
 
 OF DOWER. 
 
 On what 
 conditions. 
 
 BOOK II. Edw. 4, 54 a; Cro. Car. 562; Co. Litt, 33 b, 
 111 a; T. Jones, 6; 1 Sid. 138; 2 Sid. 154; 
 Raym. 76; Dav. 50; Somn. 48, 53, 146; and 
 numberless instances in the Kentish Iters.) 
 
 2nd. But she holds not her dower absolutely 
 for life, but only as long as she lives chaste (21 
 Edw. 4, 54 a; Hunt v. Gilburne, Cro. Eliz. 121; 
 Davies v. Selby, ibid, 825 ; Tho. Smith de Rep. 
 Angl. 109 ; Noy's Max. 28 ; Lady Cobham v. 
 Tomlinson, T. Jones, 6) ; and unmarried. (Itin. 
 Kane. 55 Hen. 3, rot. 57 ; Joan Helles's case, 
 Plac. Ass. in Com. Kane. 17 Edw. 2; Cro. Eliz. 
 121, 825; Noy's Max. 28; T. Jones, 6; Co. 
 Litt. 33 b, 111 a; Lamb. 556; 8 Edw. 2, Mayn. 
 284; 2 Edw. 4, 19; Moor, 260.) If she commit 
 fornication in her widowhood, or take a husband 
 after, she shall lose her dower. (Stat. 17 Edw. 
 2, De Prasrog. Reg. c. 16.) 
 
 Nor is it material by our custom, whether the 
 taking husband be before, or after dower be as- 
 signed; for, if she marry before, she shall not 
 afterwards be endoAved; if after assignment, the 
 heir may enter upon her. (Lamb. Peramb. 560; 
 Somn. 146.) 
 
 "Per consuetudinem quje in diversis locis pro lege obser- 
 " vatur, si, cum fuerit ei dos assignata, vel in Com. Kane, 
 "ante assignationem nupserit alicui, statim amittit tcrram, 
 " quam tenet nomine dotis de gavelkind. Et de hac materia 
 "inveniri poterit de termino S. M. anno regis Hen. 2, post 
 "guerram, in Com. Kane. Et sive seysinam habuerit, sive 
 " non, si post mortem viri inventa fuerit halens in utero con- 
 " ceptum ab alio quam viro suo, si nupserit, et licet nupta 
 " non sit, si vir inveniatur, vel puer, vel uterque, dotem 
 "amittet." (Bract, lib. 4, 313 a.)
 
 OF DOWER. 97 
 
 The record above cited of M. 2 R. H. Mr. Som- CHAP. II. 
 ner takes to be the case of Isabella de Gravenel, 
 mentioned a little higher in Bracton, p. 308 b, 
 where the custom, is thus pleaded : 
 
 "Quod sive [vidua] fuerit in seysina, sive non, si post 
 "mortem viri sui alium capiat, amittere debet dotem, si in 
 " seysina fuerit ; si autem extra seysinam, debet amittere 
 "clameum." 
 
 But though chastity, as well as a single life, be How the in- 
 a condition of her estate, yet it may be a ques- ^ 'ug^"^ 
 tion, whether the custom require not a particular proved in 
 
 kind of proof of her incontinency, before a for- rd , er to a 
 . / ni , . -, forfeiture, 
 
 feiture shall be incurred. 
 
 Mr. Lambard (Peramb. f ^f), as to this matter 
 
 says : 
 
 "Tenant in dower has some conditions "Waiting on her 
 " estate ; one, that she shall not marry at all ; another, 
 "that she take diligent heed, that she be not found with 
 "child begotten in fornication, &c., so that the sin of secret 
 "lechery is but in a sort forbidden, seeing that by the cus- 
 " torn, she forfeits not in the latter case, unless the child be 
 "born and heard to cry, and that of the country people 
 " assembled by hue and cry." 
 
 And he is supported in his opinion by the Con- 
 suetudines Kancice : 
 
 . "Ele eit le moytie de celes terres et tenements a tener 
 " tant come ele se tient * veuve, ou de enfanter soit attaint 
 " per le ancient usage, ceo est ascavoir que qnant ele enfaunt, 
 "e le enfaunt soit oy crier, e que le hu e le cry soit leve, e 
 " le pais ensemble, e eyent viewe de la enfaunt e de la mere, 
 "adonks perde son dowere entierment, e autrement nyent, 
 " tant come ele se tient veuve." Post. 
 
 * Or as the Customal printed by Tottel has it, veufue ou desenfantee, 
 de enfant soit atteint per auncientz usages, ceo est ascavoir, Sfc. 
 
 O
 
 98 OF DOWER. 
 
 BOOK II. And this is further verified by the following 
 verdict : 
 
 Robergeat Trin. T. 17 Edw. 3, coram Rege, rot. 32, Kane. * An 
 
 Combe v. Tho- ass j ze brought by Roberqe, late wife of John at Combe, 
 mas at Combe. * 
 
 against Thomas, son ot the said John, for a rent or los., 
 
 and other tenements in Woodnesborough, Folkstone, and 
 
 Ash, near Sandwich. The tenant pleads, that the rent, 
 
 &c., is gavelkind, and assigned by him to the plaintiff as 
 
 Bar, that the her dower ; " et quod talis est usus de gavelkynde, quod 
 
 premises ^were <g j V jjj ua3 p OS j mor t e m maritorum suorum se maritaverint, 
 
 the plaintiff, "vel aliquem puerum in seneucia f peperint, et puer -ille 
 
 and by the cus- v i sus f u jt au t cognitus, vel vagiens sive clamans audiatur, 
 
 torn or gavel- 
 
 kind forfeited statim viduae illfe secundum usum prfedictum, dotem suam 
 
 by her having araittent et forisfacient ; et dicit quod praedicta Roberqia, 
 
 'i child 
 
 "postquam ipsa dotata fuit de redditu prsedicto et predictis 
 " tenementis, unde, &c., peperit quandam filiam Johannam 
 "nomine in seneucia apud Reculvre, generatam per quen- 
 " dam Simonem Petitz, quae quidem filia visa fuit ibidem et 
 " cognita, per quod praedicta Robergia redditum pra^dictum, 
 " &c., secundum usum praedictum forisfecit, unde petit ju- 
 "dicium, &c." 
 
 Reply, that by The plaintiff, " non dedicit quin ipsa peperit filiam in 
 d^ wertsnot he " seneuci ^' sed dicit quod usus de gavelkynde non est talis, 
 forfeited, un- " qualis praedictus Thomas superius allegavit ; quia dicit 
 
 less the child q UO( j usus gavelkyndensis talis est, quod vidua3 dotata?, 
 
 be found at its J 
 
 birth by hue " P 09 * mortem virorum suorum prolem peperentes in seneucia, 
 
 and cry within dotem suam amittere non debent, nisi proles ilia inveniatur 
 
 the house of ,. . , . /, 
 
 which the vagiens sive clamans intra quatuor muros tenementorum 
 
 woman is " illorum, de quibus viduae sic fuerunt dotata?, et quod ipse, 
 
 "cui tenementa ilia post mortem hujusmodi viduarum reverti 
 " debent, recenter post nascentiam illius prolis hutesium et 
 " clamorem super prolem illam levaverit ; et hoc parata est 
 " verificare per assisam, &c. 
 
 * The same record oecurs Int. Plac. Ass. Kane. 10 Edw. 3, and was 
 removed into B. R. by certiorari in order to execution. 
 
 f Seneucia in this record signifies widowhood. (Co. Litt. 33 b, in 
 Marg.)
 
 OF DOWER. 99 
 
 " Et pradictus Thomas dicit, quod usus de gavelkynde est CHAP. II. 
 "talis, quod in quocunque loco comitatus prcedicti hujusmodi 
 
 " vidufe peperint in seneucia, et proles ilia per quemcunque The . tena , nt 
 , . . . . . rejoins, that 
 
 "visa vel cogmta, vel vagiens sive clamans audiatur, et wheresoever 
 
 " clamor et hutesium leventur, quod viduae ilhe secundum ^ ithin th e 
 "usurn praedictum dotem suam amittere debent et forisfient ; child u found 
 "et hoc petit quod inquiratur per assisam ; et prsedicta by hue and cry, 
 " Robergia similiter. Ideo capiatur assisa. forfeited!* " 
 
 " Juratores dicunt, &c., quod talis est usus de tenements, The jury find 
 " quce tenentur de aavelkinde in comitatu isto, viz. quod si the custom 
 "viduce post mortem virorum suorum se maritaverint, vel 
 "jilium vel filiam in seneucia peperint, dotem suam amittent 
 " et forisfacient, in quocunque loco infra comitatum istum, 
 " proles ilia fuerit inventa vagiens sive clamans ; ita tamen 
 " quod ille, cui hujusmodi tenementa sic dotata reverti debent, 
 " in propria persona sua, vel per ejus custodem sive amicum, 
 " si ipse fuerit infra tetatem, recenter post nascentiam illius 
 "prolis, hoc est dum proles ilia fuerit sanguinolenta, venerit, 
 " et super prolem illam clamorem et hutesium levaverit ; et 
 "petunt discretionem justiciariorum, &c. Juratores qus- But that the 
 
 "siti, ex quo non est dedictum per praedictam Roberqiam tenant did not 
 
 r . A r . ,. raise the hue 
 
 "qum ipsa peperit nham in seneucia, si praedictus Ihomas and cry. 
 
 "in propria persona sua, vel per ejus custodem, sive per 
 
 " aliquem amicum suum, recenter postquam praedicta Robergia 
 
 " sic peperisset, levavit clamorem et hutesium super filiam prae- 
 
 "dictae Robergice, necne, dicunt, quod non. Ideo considera- Judgment for 
 
 " turn est, quod praedicta Robergia recuperet seisinam suam, the P laintiff - 
 
 " &c." 
 
 And in Co. Litt. 33 b, it is said, "By the custom of 
 " gavelkind, the wife shall be endowed of a moiety, so long 
 " as she keeps herself sole rf and without child." 
 
 But contrary authorities are not wanting to 
 shew, that the condition is still more strong, and 
 that not only child-bearing, a casual consequence 
 of fornication, and the detection of it in this 
 public manner, but the commission of the act 
 itself is a forfeiture of her estate ; and so it was 
 found by the following verdict :
 
 100 OF DOWER. 
 
 BOOK II. Pasch. 4 Edw. I, C. B. rot. 21, Kane, (and not rot. 2, 
 as is in 1 Rolle's Abr. 558.) A writ of dower brought for 
 
 Godefrey'scase. a moiety of lands in Kent, by Margery, the widow of John 
 Godefrey. The tenant pleads, that it is the custom of 
 gavelkind, quod vidua amittet dotem, si fornicata vel mari- 
 tata fuerit, and that the demandant had, after the death of 
 her husband, a son named William, by one William de 
 Emesby. The demandant confesses the custom, but replies, 
 " quod nunquam fuit convicta secundum legem de gavelkind ; 
 "dicit enim, quod ipse inquisivisse debuit per insidias, 
 " quando ipsa fuit in parturiendo, et tune debuisset ipsam 
 " cum puero suo cepisse cum clamore et hutesio, &c." The 
 tenant rejoins, "quod ipsa fornicata est ut praedicitur, et 
 " quod ipsa non debet convinci in forma prsedicta, et de hoc 
 " se ponit super patriam ; et Margeria similiter. Ideo 
 "venire faciat, &c. Postea jurata dicunt, quod praedicta 
 " Margeria post mortem prsedicti Johannis viri sui, fornicata 
 "est cum praedicto WilVo de Emesby, de quo conceperat 
 
 Verdict finds " praedictum WilTm filium suum, et quod lex et consuetudo 
 
 the custom of fa qavelukynde talis est. quod si uxor post mortem viri sui 
 
 gavelkind to . * , 
 
 forfeit dower nupsent se, vel jornicata juit, annttit dotem suam ; et quod 
 
 forfornication, non necesse est quod ipsa capiatur cum puero suo in par- 
 c. Ue " turiendo cum hutesio et clamore. Ideb consideratum est, 
 " quod Wilt us et alii eant inde sine die, et praedicta Mar- 
 "geria nihil capiat, &c. Sed sit in mia, &c." 
 
 To this may be added, 
 
 Trin. T. 5 Edw. 2, coram Rege, rot. 4, Kane., in which 
 Northwoode's Alice, late wife of Walter Korthwoode, brought an action of 
 case - trespass against Henry Northwoode, and three others, for 
 
 breaking and entering her house^at Meopham, &c. The 
 Plea, that the defendants pleaded, " quod mos et consuetudo de gaveling- 
 plaintiff being a kj n( j e j n partibus illis talis est, quod uxor post mortem viri 
 tenant in dow- . A . 
 
 er in gavelkind, sui, quamdiu se bene et noneste gesserit, habebit medieta- 
 
 forfeitedby " tern omnium terrarum et tenementorum quae fuerunt pras- 
 the custom for ,. ../.. v i 
 
 fornication. " ictl virl SU1 et sijaciat transgressionem cum ahquo homine 
 
 " post mortem viri sui, amittat medietatem terrarum, &c., et 
 " pro eo quod praedicta Alicia fecerat adulterium cum quo- 
 " dam Johanne le Tayllur, et habuit quendam filium Johan-
 
 OF DOWER. 101 
 
 "nem nomine, ipsi Henricus et alii intraverunt domum, &c., CHAP. II. 
 " secundum consuetudinem praedictam :" Henry having mar- 
 ried the heir of the husband. " Et praedicta Alicia dicit, 
 " quod nullam transgressionem fecit cum praedicto Johanne 
 " le Tayllur, nee cum aliquo alio ; sed praedicti Henricus et 
 "alii de injuria sua propria, &c., et hoc petit quod in- 
 " quiratur per patriam ; et praedicti Henricus et alii similiter. 
 " Ideo veniat inde jurata coram Rege a die Sancti Mich, in The plaintiffis 
 "xv, dies ubicunq. &c.; ad quern diem praedicta Alicia nonsuited - 
 " non est prosecuta." 
 
 And the words of Bracton above cited, licet 
 nupta non sit, si vir inveniatur, vel puer, vel uterque, Ante, p. 96. 
 dotem amittet, are a further evidence, that she 
 may forfeit her dower without being convicted of 
 child-bearing by the view of the country. 
 
 The statute de Prcerogativa Regis (17 Edw. 2, 
 c. 16), is likewise general, that if she commit for- 
 nication in her widowhood, or take husband after, 
 she shall lose her dower. And to these may be 
 added the other authorities above cited, which Ante, p. 96. 
 say generally, that she shall hold the moiety so 
 long as she lives chaste. And indeed, could the 
 widow who breaks this rule,' avoid the danger 
 of a forfeiture, by withdrawing to lie in, out of 
 the County, the condition would be but of very 
 little effect. 
 
 These restrictions to chastity and a single life, Who may 
 being limitations which determine the estate ipso take advan - 
 facto, without entry, not the heir only, as in the forfeiture, 
 case of a condition, but any stranger who is in- 
 terested, may take advantage of the forfeiture. 
 (Co Litt. 214 b.) 
 
 If tenant in dower of gavelkind sows the land, Of emble- 
 
 and afterwards forfeits her dower by marriage or me " l . s after 
 
 J forfeiture.
 
 102 
 
 OF DOWER. 
 
 BOOK II. 
 
 Where an 
 action lies 
 for calling 
 tenant in 
 dower in 
 gavelkind 
 a whore. 
 
 fornication, the heir shall have the emblements, 
 for her estate is determined by her own act. (2 
 Inst. 81 ; [Co. Litt. 55 b ; Bulwer v. Buliver, 2 
 B. & Aid. 470.]) So, if she makes a lease for 
 years, and then takes husband, the lessee shall 
 not have the emblements; for, though his es- 
 tate is determined by the act of another, yet, 
 he shall not be as to the heir, in a better con- 
 dition than his lessor was. (OlancTs case, 5 Rep. 
 116, which was the case of a feme copyholder 
 durante viduitate.) (d) 
 
 As tenant in dower of gavelkind lands, holds 
 only while she remains sole and chaste, she may 
 maintain an action against any person calling her 
 a whore, if done to impeach her estate, within 
 the reason of the case of Bois v. Bois. (1 Sid. 
 215 ; S. C. 1 Lev. 134.) Action on the case for 
 saying to a widow, who held an estate while she 
 continued sole and chaste, that she was a whore, 
 
 (d) In a note to this case by the learned editors (Messrs. 
 Thomas and Fraser) of the last edition of Coke's reports, 
 they say, "In Rolle's Abr. 727, Emblem. 10, it is laid down, 
 that the lessee shall have the emblements, for her act shall 
 not prejudice a third person, and Oland v. Burdwick (Cro. 
 Eliz. 460) is cited, in which case it appears that the law was 
 so laid down by Clench, and assented to by Popham (dissent. 
 Fenner) ; the law as laid down by Rolle, is adopted by 
 Blackstone in his Commentaries, vol. 2, p. 124." And in 
 Bulwer v. Bulwer (2 B. & Aid. 470), Ch. Just. Abbott ob- 
 served, " The general rule of law applicable to cases of this 
 description is, that where a tenant of land has an uncertain 
 interest, which is determined either by the act of God, or 
 the act of another, there he shall have emblements ; but that 
 is not so, where the tenancy is determined by his own act."
 
 OF DOWER. 103 
 
 and that he would throw her out of her living, CHAP. II. 
 falsely and maliciously, with an intent to oust her 
 of her estate : moved in arrest of judgment, that 
 no special damage being laid, the words were 
 not actionable; but the Court held, that the 
 words, coupled with the declaration of the party, 
 import damage in themselves in respect of her 
 estate. 
 
 Of the custom not to forfeit dower for felony, 
 see post, chap. 4. 
 
 3rd. As a woman is to be endowed at common Of what 
 
 law of lands and tenements (Litt. Sect. 36: Co. ttingsshe 
 -r n j i i / -i-i i i T shall be en- 
 
 Litt. 32 a), so is she dowable 01 all lands and dowed of a 
 
 tenements in gavelkind, as appears by the Custu- moiety, 
 mal of Kent, post. And the writ of dower in 
 this case, as well as the other, is de libero tene- 
 mento, of the husband; from whence it might 
 naturally be inferred, that the dower is equally 
 extensive in both cases. 
 
 But though a woman shall be endowed at Whether of 
 common law, of the third part of the profits of a bailiwick, 
 a fair (Co. Litt. 32 a; Fitz. Dower, 81), yet it is a f^ 
 said, that if the custom be, that a woman shall 
 have for her dower, the moiety of all the lands 
 and tenements which were her husband's, holden 
 in socage within such a precinct, if the husband 
 had a bailiwick, or fair in fee during the cover- 
 ture, holden within the same precinct, the wife 
 shall not have the moiety thereof for her dower, 
 because it is no tenement, and a custom shall be 
 taken strictly. (Perk. Sect. 435; Lamb, fj-f; 
 Noy's Max. 28 ; 2 Sid. 139, per Newdigate, Just.;
 
 104 OF DOWER. 
 
 BOOK II. and 12 Edw. 2, Dower, 157, seems to be to the 
 same purpose, though the case is somewhat ob- 
 scure.) But- otherwise it is of a bailiwick or fair 
 appendant to a manor, or land holden in socage 
 within such precinct. (Perk. Sect. 436 ; Lamb. 
 
 The first is undoubtedly true, if it be under- 
 stood only of such profits of a fair, as arise merely 
 from the franchise, as toll, &c., and issue not out 
 of the land ; for, these not being holden by any 
 tenure, cannot be of the nature of socage, and 
 consequently not gavelkind ; but as such profits 
 of a fair, which are rather issuing from the land 
 than from the franchise (as pickage and stallage), 
 
 Ante, 47,48. may be of the nature of gavelkind with regard 
 to the inheritance, there is no reason why the 
 widow should not have equal advantage with the 
 heirs, and be entitled to a moiety of them, as 
 incident to the soil of which she is endowed, 
 they coming properly under the description of 
 
 Co. Li tt. 6 a, the word tenements, which is a very large term, 
 
 19 b; [2B1. comprehending, not only lands, and other cor- 
 Com. 17; 4 r , . , ' , . , . , , 
 
 T. R. 671, poreal inheritances, which are, or may be holden, 
 
 and cases but also, all inheritances issuing; out of any of 
 
 i , j -i */ 
 
 -I them, or concerning, or annexed to, or exercise- 
 able within the same, though they lie not in 
 tenure; as offices, rents, commons, profits ap- 
 prender out of lands, and the like, wherein a 
 man has any frank-tenement, and whereof he is 
 seized ut de libero tenemento. 
 
 And accordingly, dower was demanded of the 
 moiety of stallage, arising from a fair holden on
 
 OF DOWER. 105 
 
 gavelkind lands; and it was adjudged good, CHAP. II. 
 without saying a moiety of the profits of the 
 stallage; for the stallage is the profits, and a 
 woman may be endowed of a moiety of stallage. 
 (11 Edw. 3, Fitzh. Dower, 85.) 
 
 Dower demanded of a moiety of pasture for Of common 
 sixteen oxen, and six cows, &c., to common in m g ross - 
 five hundred acres of wood: exception taken, 
 that the writ is de libero tenemento, and the de- 
 mand of common of pasture, and therefore, the 
 demand not warranted by the writ; but the 
 Court held it good, for that, if she could not 
 recover by this writ, and by this demand, she 
 would be without remedy. (13 Edw. 2, Dower, 
 161; S. C. Mayn. 405.) 
 
 Rent or common out of land in gavelkind, or Of a rent, 
 borough-english, shall be of the nature of the 
 land, so as a wife shall be endowed of a moiety, 
 &c., contra of a rent or common newly granted, 
 and therefore, she shall be driven to shew, 
 whether it is common newly granted, or con- 
 tinued time out of mind, notwithstanding she 
 allege, that by the custom of the County, the 
 wife shall have a moiety of her husband's free- 
 hold in dower. (4 Edw. 3, 32; Fitzh. Dower, 113; 
 Bro. Custom, 58.) But as it is now settled, that 
 a rent, though newly granted out of gavelkind Ante, 49. 
 land, shall follow the nature of the land, there 
 is the same reason, that the wife shall be en- 
 dowed of a moiety, as that all the sons shall 
 inherit. 
 
 That a woman shall not be endowed of a Of tithes 
 
 p impropriate.
 
 106 OF DOWER. 
 
 BOOK II. moiety of tithes impropriate issuing out of lands 
 
 in gavelkind, vide ante, p. 52, and n. (o). 
 What reme- 4th. A woman shall have the same remedies 
 
 dies he for f or t hj g CU stomary dower of gavelkind, as for 
 this dower. , , *. f , , 
 
 lands at common law ; as a writ ol dower unde 
 
 nihil habet (e) in the common form, quod reddat 
 ei rationdbilem dotem, tyc. de liber o tenemento, fyc., 
 and in her count, she shall demand the moiety 
 by the custom. (Mayn. Edw. 2, 405 ; 30 Edw. 
 3, 26 a.) 
 
 As the statute of Merton, 20 Hen. 3, c. 1 
 
 [V. Watson (which gives to the wife deforced of her dower, 
 
 Ib J Z ats ft where the husband died seized, damages to the 
 
 Rep. 3.] value of the mean profits of her dower), is con- 
 
 strued to extend to copyholds, where by the cus- 
 
 tom the wife is dowable ; for that, when she is 
 
 endowed, she shall have all incidents to dower 
 
 (Shaw v. Thompson, 4 Rep. 30 b; Co. Litt. 33 a), 
 
 it seems that with equal reason at least, it will 
 
 extend to dower of gavelkind lands. And Fleta 
 
 (lib. 5, c. 24, fol. 344), speaking of this provision 
 
 of the statute of Merton, and of writs of dower 
 
 unde nihil habet, says : 
 
 "Primum commune breve, ut supra, per quod petitur 
 "tertia pars tenement!, quod fuit viri sui die quo earn de- 
 "sponsavit, et postea, et aliquando medietas, sicut de socagio; 
 
 (e) The writ of dower unde nihil habet, is now seldom re- 
 sorted to (see 3 Steph. Com. 465, 2nd edit.), as the Court of 
 Chancery possesses a concurrent jurisdiction with the com- 
 mon law Courts in all cases of assignment of dower. (Mundy 
 v. Mundy, 2 Ves. Jun. 122; Curtis v. Curtis, 2 Bro. Ch. 
 cases, 620.)
 
 OF DOWER. 107 
 
 " non tamen de omnibus socagiis, sed de antiquis, et de iis CHAP. II. 
 
 "de quibus mulieres dotari consueverunt secundum loci et 
 
 " patrise consuetudinem : Quod quidem breve quandoq. sit 
 "clausum, cum mulieres nihil habent omnino, et quandoq. 
 "patens, cum aliquid habuerint, et aliquid defecerit. In 
 "brevi autem clauso adjudicantur damna mulieribus, sed in 
 "patenti non." 
 
 5th. As dower of a moiety is against common Of the man- 
 right, some cause must undoubtedly be alleged ner f de - 
 for it in the demand. (Fitzh. Dower, 64, 65 ; 7 dower'ol' 
 Edw. 3, 10; 10 Edw. 3, 35; 13 Edw. 3, Voucher, gavelkind 
 20 ; 30 Edw. 3, 26 a.) lands - 
 
 But the question is, in what manner such spe- 
 cial cause must be alleged : 
 
 It is said in 5 Edw. 4, 8 b, that where a woman 
 is to be endowed of a moiety of gavelkind lands, 
 it is sufficient to shew the custom without pres- 
 cribing in it. (Fitzh. Custom, 4.) * 
 
 In 2 Edw. 4, 19, dower is demanded of a moiety 
 of 24 acres of land, for that the land is of the 
 tenure of gavelkind, et sec:mdum consuetudinem in 
 Com. Kane, ab antiquo usitatam, women ought to 
 be endowed of a moiety of such lands ; the tenant 
 prayed judgment of the demand, because it was 
 not said, according to the custom a tempore a 
 quo non eristit memoria usitatam. But the Protho- 
 notary certified that the other was the constant 
 course, and the Court said, they well knew there 
 was such a custom, and therefore awarded that 
 the tenant should answer. 
 
 ' The book itself is misprinted, the word nemi before 
 prescriber being omitted. 
 
 p 2
 
 108 OF DOWER. 
 
 BOOK n. And there are several precedents of demands 
 of dower in Kent in this manner, in Rast. Ent. 
 235 a, 238 b, 239 b. 
 
 But it has been of later times the more com- 
 mon way, to demand dower of gavelkind lands 
 in Kent, according to the custom time out of 
 mind used, as appears by the precedents, Old. 
 Ent. 109 ; Rast. 237 a ; Co. Ent. 248 ; 1 Brownl. 
 Decl. 112; Rob. Ent. 267, 268, 285. And cer- 
 tainly this is the more advisable and safe way of 
 pleading, since the opinion of the Court in the 
 
 Ante, 25. cases of Launder v. Brooks, and Wiseman v. Cotton, 
 that they will not take notice of the particular 
 customs annexed to gavelkind lands, unless spe- 
 cially pleaded. 
 
 How dower 6th. Mr. Lambard (Peramb. f^f ), thinks, that 
 
 of a moiety tn j g Clis t omar y dower differs from the common 
 
 is to be . J 
 
 assigned. law in the manner 01 assignment ; lor, that it the 
 
 wife recover her dower at common law, she 
 ought of necessity to be endowed by metes and 
 bounds ; but in dower after the custom, she may 
 very well be endowed of a moiety, to hold in 
 common with the heir who enjoys the other half. 
 And in this he is followed by Mr. Noy in his 
 "Maxims," p. 28. 
 
 But the instance put in Perkins, tit. " Dower," 
 pi. 412, which Mr. Lambard cites as his authority 
 for this position, is only of an endowment of the 
 wife by the heir, with her agreement to hold in 
 common ; and this is good by her assent, and 8 
 Edw. 2, Itin. Kane. Fitzh. Entre, 75, is to the same 
 purpose (though in truth, the case was in 6 Edw.
 
 OF DOWEE. 109 
 
 2, Itin. Kane., and is more clearly reported among CHAP. II. 
 cases of that Eyre, given by Ch. J. Hale to Lin- 
 coln's Inn), where Spigurnel, Just, (who gave the 
 rule) holds, that the law will well suffer the heir 
 to assign dower to his mother, to hold a moiety 
 in common with him per mi et per tout, but that 
 it would be otherwise, if she were to recover her 
 dower by judgment. 
 
 And though the consent of both parties may Style, 276 ; 
 
 take away the necessity of an assignment in ]Jr*5r B 'T J ![* 
 ,, . , J , . , 682, X. pi. 3. 
 
 severalty, as well in dower or a third part as 
 
 of a moiety, yet it is certain, that where the wife 
 recovers this customary dower by course of law, 
 the sheriff ought to assign it by metes and bounds, 
 equally as in the case of dower at common law ; 
 for it is expressly holden in the case of Davies v. 
 Selby (Cro. Eliz. 825), that the widow shall have 
 the moiety of gavelkind lands by assignment in 
 severalty, and cannot hold in common. And so 
 in 1 Keb. 583, that feme tenant of a moiety in 
 dower by the custom of Kent, doth recover by 
 metes and bounds, and is no tenant in common, 
 unless she were the wife of a tenant in common. 
 
 case. 
 
 Itin. Kane. 39 Hen. 3, rot. 19, in dorso. In a writ of Roger kBonde'f 
 right, " Jordanus et Godelina dicunt, quod non possunt 
 " respondere ; quia prsedicta Godelina dicit, quod ipsa nihil 
 " clamat in praedicta terra nisi nomine liberi band sui de 
 "dono cujusdam Rogeri le Bonde, patris praedicti Jordani, 
 "et quorundam Gilberti et Richardi, cujus haeredes ipsi sunt ; 
 "et dicit, quod ipsa, et praedicti Jordanus, Gilbertus, et 
 " Richardus tenent praadictam terram in communi pro indi- 
 " viso ; ita quod, liberum bancum suum nondum ei assignatum 
 " est."
 
 110 OF DOWER. 
 
 BOOK n. And Littleton (sect. 43), speaks of dower of a 
 moiety according to the custom, to hold in seve- 
 ralty, which may be a sufficient answer to what 
 is said obiter by Jerman, Just, in Booth v. Lambert 
 (Style, 277), that if dower be of a third part, it 
 ought to be by metes and bounds 'generally, but 
 if of a moiety, it is not. so. 
 
 Trin. T. 22 Jac. 1, rot. 3286; 1 Brownl. Decl. 112. The 
 judgment in dower of a moiety of gavelkind lands is, "to hold 
 "to the widow in severalty by metes and bounds ;" though 
 it is not necessary that the judgment be so particular. 
 
 1 Keb. 583. Indeed, if there be two coparceners in gavel- 
 kind, and one takes a wife and dies before par- 
 tition made, the widow must of necessity be 
 endowed of the moiety of a moiety, to hold in 
 common ; in like manner as at common law, the 
 widow of a tenant in common shall be endowed 
 of a third part of a moiety, to hold in common 
 with the heir and the other tenant, for that in 
 this case, her dower cannot be assigned by metes 
 and bounds. (Litt. sect. 44. ) 
 
 This distinction is supported by the reason of 
 the law in other cases: The statute Westm. 2 
 (13 Edw. 1), c. 18, enacts, that the sheriff shall 
 upon an elegit, deliver to the plaintiff a moiety of 
 the land of the debtor (f); and the construction 
 upon this has been, that he shall deliver the 
 moiety by metes and bounds, unless the defen- 
 dant be a joint-tenant, or tenant in common; 
 and then this must be specially set forth in the 
 
 (f) See now the stat, 1 & 2 Viet. c. 110, sec. 11.
 
 OF DOWER. Ill 
 
 return. (Hutt. 16; 1 Brownl. 38; Sparrow v. CHAP. II. 
 Matter sock, 1 Vent. 259.) 
 
 7th. Mr. Lambard puts a question, whether a Whether the 
 woman entitled to dower in gavelkind, may wave dovrorcanbe 
 her dower of a moiety after this custom, and waved for 
 
 bring her action to be endowed of a third part at dower a * 
 
 , -. L -. TP p ^ commonlaw. 
 
 common law, and so exempt nerseli irom the 
 
 danger of the customary conditions, or not? And 
 he mentions, that he once heard two reverend 
 Judges of opinion, that the woman was at liberty 
 to demand her dower of a third, or of the 
 moiety ; but that it was uttered by them on sud- 
 den speech, and not on studied argument. (Per- 
 amb. ff-|, -. And he seems to mean the 
 
 opinion of Anderson, and Windham, Justices 
 (reported 1 Leon. 62), which, as it was a sudden 
 opinion, so it is contrary to both the former and 
 later resolutions : 
 
 Plac. Ass. 52 Hen. 3, in Com. Kane. int. ass. de divers. Thom.de Kantia 
 
 Cora. rot. 17. "Praeceptum fuit vicecomiti, quod venire , v- 
 
 . .. A ,, ,.. . ,. . . J. de Ripanis. 
 
 "faciat me ad hunc diem juratores assistc novae disseismse, 
 
 " quam Thomas de Kancid et Ccecilia uxor ejus arrianave- 
 " runt coram Roberto Fulcone versus Johannem de Ripariis, 
 " WiWum de Tracy, Radulphum de Bray, Johannem de 
 " Tracy et Margeriam uxorem ejus, de tenementis in New- 
 " ington, viz. de tertia parte unius carucataa terra3, ad certifi- 
 "candam de quibusdam articulis assisam praedictam tan- 
 "gentibus. 
 
 " Et prasdicti Thomas et Ccecilia non venerunt, et prae- Count, that 
 
 "dicti Johannes, WiWus, Radulphus, et Johannes venerunt, plaintiff in the 
 vi T mi ^ -i original assize 
 
 ' et dicunt, quod prtedicti Ihomas et (JcBciha per przedictam recovered a 
 
 " assisam recuperaverunt seisinam suam de praedicto tene- third P art f a 
 . , , . . f, .,. , ,. vi ,, carve of land, 
 
 mento, ut dotem ipsius Lcecilice ; et dicunt, quod consuetudo as ner ,j ower . 
 
 "comitatus Kancice de tenemento, quod tenetur in Gave- and that by the
 
 112 
 
 OF DOWER. 
 
 BOOK II. 
 
 custom of 
 Kent, she for- 
 feited by mar- 
 rying again. 
 
 The jury find 
 accordingly. 
 
 Judgment. 
 
 Sunt 
 v. 
 
 Gilburne. 
 
 " lykende, talis est, quod quamcito mulier, quae dotata est de 
 "hujusmodi tenemento, nupserit se alicui, quod ipsa amittat 
 "dotem suam de teneraento, quod tenetur in gavelikende ; 
 "et quia prasdicta CcBcilia nupsit prasdicto Thomce, prae- 
 " dictus WilTus de Tracy seisivit praedictam tertiam partem 
 "in manum suam, ratione praedictorum Johannis et Mar- 
 "gerice, qui sunt in custodia sua, ut jus et haereditatem ipsius 
 " Margerice, sicut ei bene licuit per praedictam consuetudi- 
 " nem ; unde dicunt, quod assisa prsedicta minus sufficienter 
 "examinata fuit super praedicto articulo. 
 
 " Et Juratores examinati super isto articulo dicunt, quod 
 "praedictum tenementum, &c., tenetur in gavelykende, et 
 "quod consuetudo de tenemento, quod tenetur in gavele- 
 "kende, talis est sicut praedictum est, viz. quod siqua mulier 
 " dotata de tenemento, quod tenetur in gavelekynde, nupserit 
 "se alicui, quod amittat dotem suam; et quod liceat war- 
 "ranto dotis seisire praedictam dotem in manum suam. Et 
 "ideo consideratum est, quod praedictus WilTus de Tracy, 
 " ratione custodiae prasdictorum Johannis et Margerice, reha- 
 " beat seisinam suam, &c." 
 
 Exception taken to the d*emand of dower of gavelkind 
 land in Kent, because it was of a third part, and the count 
 was amended, and made of a moiety. (2 Edw. 4, 19.) 
 
 Dower of gavelkind lands in Kent, and demanded the 
 third part of the land of her late husband ; the defendant 
 pleaded,* " that the custom there is, that wives shall have a 
 " moiety for their dower, and shall hold it as long as they 
 " live chaste and unmarried, et non secundum cursum commu- 
 " nis legis, and that the demandant had taken another hus- 
 " band," and prayed judgment if she should have her dower ; 
 to which the demandant demurred. And the Court adjudged, 
 that the prescription in the bar was good, being in the neg- 
 ative ; and Periam, Just, said, that if he had not pleaded 
 in the negative, yet the demandant should "not have dower, 
 for the custom, that wives shall have the moiety, is the com- 
 
 * See a precedent of such a plea, Eobinson's Ent. 245.
 
 OF DOWER. 113 
 
 mon law in Kent, and no other law runs there. (Hunt v. CHAP. II. 
 Gilburne, Cro. Eliz. 121 ; S. C. Goulds. 108; 1 Leon. 133; 
 Moor, 260 ; Sav. 91.) 
 
 Indeed, the strength of this case is much taken 
 off by its being on demurrer, which confessed 
 the custom in the negative and exclusive manner 
 in which it was pleaded. 
 
 But it was afterwards, upon evidence on a trial 
 at bar on this issue, whether it was the custom 
 of gavelkind, that if the husband aliened his 
 land, the wife might demand a third part for her 
 dower, or a moiety at her election, resolved (the 
 demandant not being able to produce any prece- 
 dents, or proofs, that there was any other dower 
 of gavelkind lands in Kent than dower by the 
 custom), that the custom precisely is, that she 
 shall have a moiety * ; and as it is for the benefit 
 of the heir, that she should have the moiety, she 
 being thereby under the restraint to hold it only 
 while she lives sole and chaste, she is bound by 
 the custom, and cannot wave it. (Davies v. Selby, 
 Cro. Eliz. 825 ; cited Moor, 260.) 
 
 And in Co. Litt. 33 b, it is said, " By the cus- 
 "tom of gavelkind, the wife shall be endowed 
 "of a moiety as long as she keeps herself sole 
 " and without child, which she cannot wave and 
 " take her thirds for life, for in that case consue- 
 " tudo tollit communem legem" 
 
 By the statute of Merton (20 Hen. 3, c. 2), Of devising 
 
 ' This is likewise said to have been the opinion of Lord 
 Dyer. (1 Leon. 61.) 
 
 Q
 
 114 OF DOWER. 
 
 BOOK II. all widows may devise the crop growing on the 
 
 lands, which they hold in dower ; which words, 
 
 lands held in a ^ widows^ being general, comprehend dower 
 
 customary by the custom, as well as other dower. (2 Inst. 
 
 dower ' 81.) fy) 
 
 (y) The present Dower Act (3 & 4 Will. 4, c. 105), also 
 includes by implication within its operation, freehold lands 
 of a customary tenure. But it does not extend to copyholds. 
 (Powdrell v. Jones, 2 Sm. & Gif. 407 ; Smith v. Adams, 
 2 Eq. Rep. 1001.)
 
 115 
 
 CHAP. III. 
 
 OF THE CUSTOMAEY WARDSHIP, AND OF ALIENA- 
 TION BY AN INFANT TENANT IN GAVELKIND. 
 
 BY the old common law, guardianship in so- CHAP. III. 
 cage continued a year longer than it does at T~ . 
 present, as we see by the 70th law of Hen. I, 
 sec. 18 : 
 
 " Si quis pater mortuus fuerit, et filium vel filiam haere- 
 "ditandam reliquerit, usque ad xv. aetatis annos, nee causam 
 " prosequantur, nee judicium subeant, sed sub tutoribus et 
 " actoribus sint in parentum legitima tutela," &c. 
 
 And Bracton, speaking of wardships (fol. 86 
 b), says: "Si fuerit hasres sockmanni, tune demum 
 " cum xv. annos compleverit setatem habere intel- 
 " ligitur." So likewise, Glanv. lib. 7, cap. 9. And 
 this is still the age by the custom of Kent; for if a 
 tenant in gavelkind die, [without having exercised 
 his power of appointing a guardian according to 
 the statute, 12 Car. 2, c. 24,] leaving his heir or 
 heirs within the age of fifteen, the next of blood 
 to whom the inheritance cannot descend, shall 
 (by the appointment of the lord, if there be 
 several in equal degree of kindred) have the 
 custody of the body, lands, and goods of such 
 
 Q 2
 
 116 
 
 OF THE CUSTOMAEY WARDSHIP. 
 
 BOOK II. infant heir, until he attain to that age; even as 
 the guardian in socage at common law shall, till 
 the ward is fourteen years old. But the lord 
 shall take nothing for the appointment, nor ought 
 he to tender any marriage to the heir. And 
 when' the heir arrives at the age of fifteen, this 
 customary guardian shall deliver up his goods 
 and lands to him, with the improvements, and in 
 all things shall be charged, and have allowance 
 as guardian in socage at common law. (Consue- 
 tud. Kane., post; Lamb. 611, 624.) (h) 
 
 Though the custom puts some confinement on 
 the heir, by keeping him in ward one year longer 
 than is permitted by the course of the common 
 law, yet it makes ample amends to him, by a 
 favour allowed him afterwards, which is, to alien 
 his lands, as soon as .by attaining the age of fif- 
 teen years, he is out of that custody. (Custumal 
 
 Of aliena- 
 tion by an 
 infant of 
 fifteen. 
 
 (h) The occurrence of guardianship in socage is rendered 
 unfrequent, because the infant must take the legal estate in 
 the land (Rex v. Toddington, 1 B. & Aid. 560) by descent 
 (Quadring v. Downs, 2 Mod. 177 ; Hargr. Co. Litt. 87 b, 
 n. 1, 88 b, n. 13) ; and the father may by the stat. 12 Car. 
 2, c. 24, sec. 8, appoint, either by deed or will, who shall be 
 guardians of his children after his death until they attain 
 21, or for any less period, which will prevent the appoint- 
 ment of a guardian in socage. (Hargr. Co. Litt. 88 b, n. 15 ; 
 See generally 2 Byth. Convey, by Sweet, 561.) 
 
 The power of appointing a guardian by the lord is 
 now never exercised, as it falls more within the province 
 of a Court of Equity. (See Bacon's Abr. tit. " Guardians 
 by custom.")
 
 OF ALIENATION BY AN INFANT. 117 
 
 of Kent, post; Lombard's Peramb. fff, fff; CHAP. III. 
 
 Somn. 146 ; Itin. Kane. 6 Edw. 2, rot. 69 ; Trin. 
 
 T. 12 Edw. 1, C.'B. rot. 68; Mich. T. 11 Edw. 
 
 3, B. R. rot. 133 ; Mich. T. 20 Rich. 2, B. R. rot. 
 
 62; Alex, de Greenhethe's case, Plac. Ass. in Com. 
 
 Kane. 15 Edw. 2 ; Mich. Pours case, 12 Rich. 
 
 2 ; 9 Edw. 3, 38 ; 39 Edw. 3, 10 b ; 29 Edw. 
 
 3, 5 a; 32 Ass. 4, 11 Hen. 4, 29 b; Lowe v. 
 
 Paramour, Dyer, 301 b ; Camd. Britan. 284 ; 
 
 [Hearle v. Greenbank, 3 Atk. 711;] And the 
 
 cases, pest.) 
 
 Itin. Kane. 55 Hen. 3, rot. 5, in dorso. "TOTUS CO- 
 "MITATUS* recordatur, quod quilibet cetatis quindecim 
 " annorum tenens, vel tenere damans aliquam terram in 
 " gavelykynde, potest dare vendere terram suam, de qua fuit 
 " in seisina, ac etiam remittere et quietum clamare totum jus 
 " et clameum, quod habet, vel habere possit in aliquo tene- 
 " mento petendo ; adeo licite et libere sicut quilibet alius 
 " aetatis viginti et unius anni de tenuris forinsecis, quae te- 
 " nentur per servitium militare." , 
 
 This custom extends to a female heir in gavel- 
 kind of the age of fifteen, as well as a male ; as 
 appears by 11 Hen. 4, 33 ; Itin. Kane. 55 Hen. 
 3, rot. 25 ; Ass. in Com. Kane. 2 Rich. 2, post, 
 128; 4 Rich. 2, post, 131; 13 Rich. 2, post, 133. 
 And is expressly so recorded per totum comi- 
 tatum*, in Itin. Kane. 7 Edw. 1, rot. 47, Rex. 
 roll. 
 
 But the later resolutions and practice have 
 
 * For the meaning of this expression, see note ante, p. 
 82.
 
 118 
 
 OF ALIENATION BY AN INFANT. 
 
 The restric 
 tions attend 
 ing this cus 
 torn. 
 
 BOOK II. added the following proper and reasonable re- 
 strictions to this customary alienation : 
 
 1st. That it must be by feoffment. (Lamb. ff|-, 
 566 ; 11 Hen. 4, 33 ; 21 Edw. 4, 24 ; Noy's Max. 
 40.) But see post, 120. (i) 
 
 And the livery of seisin must be propria manu 
 of the infant, and not by letter of attorney 
 (Lamb. ff ; Noy's Max. 40) ; for this custom 
 to enable a person disabled by law, ought to be 
 taken strictly, and therefore, shall not extend to 
 feofiments by attorney, without a particular cus- 
 tom for that purpose ; for an infant can do no- 
 thing to pass a thing out of him by attorney. 
 (Combes' s case, 9 Rep. 76 b.) 
 
 Nor does the custom extend to any other con- 
 veyance or assurance, for it shall be taken strictly. 
 (Lamb, ffj-; Noy's Max. 40.) Therefore, the 
 custom does not enable him to make a will of 
 these lands at 15. (Co. Copyh. sect. 33.) (j) 
 
 The custom does not extend to the grant of a 
 reversion on an estate for life (11 Hen. 4, 33; 
 Old Bendl. 33) ; for that lies not in livery. 
 
 See post, By the opinion of Hankford, Justice (11 Hen. 
 120. 
 
 (i) The provision in the stat. 8 & 9 Viet. c. 106, which 
 requires a feoffment to be evidenced by deed (sec. 3), does 
 not extend to feoffments of gavelkind lands by infants, al- 
 tthough a deed is invariably used in practice ; the above sec- 
 tion expressly excepting " feoffments made under a custom 
 by an infant." 
 
 (j) The Wills Act (1 Viet. c. 26), enacts, "that no will 
 made by any person under the age of twenty-one years shall 
 be valid." (sec. 7.) 
 
 Whether the 
 custom ex- 
 tends to 
 other con- 
 veyances. 
 See post, 
 120.
 
 OF ALIENATION BY AN INFANT. 119 
 
 4, 33 a), the custom does not extend to a release CHAP. III. 
 of a right. And it is said generally in 5 Hen. 
 7 (31 a, 32 a, 41 a), that though there be a cus- 
 tom for an infant of fifteen to make a feoffment, 
 yet his release is void ; but it is not applied to 
 the custom of this County. 
 
 Nor is a lease and release warranted by this 
 custom of Kent. (Obiter, 21 Edw. 4, 24; Bro. 
 Custom, 50.) 
 
 And as this custom is not of a kind to be fa- 
 voured or extended, and a feoffment was the 
 conveyance most used at common law, and being 
 the most public and notorious method of aliena- 
 tion, is fittest in the case of an infant, where 
 there may be suspicion of fraud or imposition ; I 
 believe no prudent person would advise to try 
 the experiment of any other conveyance, where a 
 feoffment may possibly be had (k). 
 
 (k) It is almost superfluous to remark, that it is the inva- 
 riable practice of conveyancers, to convey the shares of 
 infant coheirs in gavelkind by feoffment, unless there are 
 several coheirs interested, and only one of them an infant, 
 and the purchase money small in amount ; in which case, 
 some gentlemen adopt the usual form of conveyance of com- 
 mon law lands, and insert a covenant by the other vendors, 
 that the infant shall within a specified time [usually one 
 month] after he shall attain his age of 21 years, execute the 
 deed, and, in the meantime, they invest his share of the 
 purchase money in the joint names of the infant and the 
 purchaser. But it is not advisable to adopt this course, as 
 the infant may die under age, or on attaining twenty-one, 
 refuse to execute the deed ; besides, the purchaser might in 
 the interim be desirous of selling, and as one of the shares 
 would be outstanding in the infant, it would probably depre-
 
 120 OF ALIENATION BY AN INFANT. 
 
 BOOK II. But when I contend, that this customary power 
 of alienation is confined to feoffments, I would 
 be understood to consider the infant as in actual 
 possession and seisin of the land ; for otherwise 
 (as I take it), the custom will warrant him at the 
 age of fifteen, to release the fee to his guardian 
 holding over, or to a tenant for life, or a mere 
 right to one that has a defeasible estate, who 
 have seizin already ; and the modern notion to the 
 contrary, may possibly appear on examination, 
 to have no better foundation than the single 
 opinion of justice Hankford, in 11 Hen. 4, 33, 
 which, as it was disregarded in the very case, so 
 it was grounded on a misrepresentation (as it 
 
 Ante,p.ll7. seems) of the record of 55 Hen. 3, before cited, 
 arising from a slip of the judge's memory. The 
 year-book case is, in effect, no other than this : 
 
 ciate the value of the shares already conveyed. (See the 
 Eeport of the Real Prop. Comm., post.) 
 
 It has been suggested to the Editor, that since the passing 
 of the stat. 8 & 9 Viet. c. 106, a feoffment is not necessarily 
 the only mode of conveying land in gavelkind by infant 
 heirs, because, by the 2nd section it is enacted, " that all 
 corporeal tenements and hereditaments, shall, as regards the 
 conveyance of the immediate freehold thereof, be deemed to 
 lie in grant as well as in livery" thus giving equal validity 
 to either mode of conveyance. But the Editor agrees with 
 Mr. Sweet, who, in a note to the above section in his Sup- 
 plement to the 9th vol. of Jarman's Convey, (p. 300), says, 
 " Where lands of freehold tenure are subject to a custom 
 requiring a special mode of alienation, the customary forms 
 must still be observed." And Mr. Sandys is of the same 
 opinion. (Consuetud. Kancize, 182.)
 
 OF ALIENATION BY AN INFANT. 121 
 
 In a writ of entry sur cui in vita, as son and CHAP. III. 
 heir of Margery, who was daughter and heir of 
 Margery, of whose possession, &c., the counsel 
 for the tenant pleads in bar, that the lands are 
 gavelkind; and that the mother of the deman- 
 dant, through whom the descent was made, re- 
 leased to the tenant all her right with warranty, 
 when she was of the age of fifteen; and offers 
 to aver, that the usage is, that they may at that 
 age alien by feoffment, and likewise release their 
 right. But Hankford, Justice, says, you shall 
 not take so large an averment, for the usage is 
 of record in the time of King Henry 3 (to 
 which the reporter adds a quaere what record he Ante, p. 11 7. 
 meant ; but I have already shewn how the cus- 
 tom is recorded in the time of that King), and 
 shall be taken ex stricto jure; and the usage is, 
 that he may make a feoffment, without other 
 alienation. But if he makes a feoffment with 
 warranty at such age, he shall not be bound by 
 the warranty, for that the usage does not ex- 
 tend to that (ra); and if I am disseised, and I 
 release, this is not my feoffment. Then here, 
 when the right of the feme was discontinued, 
 and an action descends to the heir, though the 
 heir releases, this is not a feoffment, but an ex- 
 tinguishment of the right of action, and she could 
 not extinguish her action while she was within 
 age. But notwithstanding this, it is remarkable, 
 that Norton, of counsel with the demandant 
 
 (1) See post, p. 133, and note (m). 
 
 R
 
 122 OF ALIENATION BY AN INFANT. 
 
 BOOK II. (being possibly better instructed of the custom), 
 durst not demur to the plea, though urged to it 
 by Thurling, Ch. J., but passed over, and replied, 
 that the release was made in the time of the 
 grandmother, before any right accrued to the 
 mother; and the counsel for the tenant being 
 apprehensive of this, relied on the warranty, &c. 
 Et sic pendet, fyc. 
 
 This case, upon the whole, is rather an au- 
 thority, that the custom warrants the infant to 
 release a right ; since it had otherwise been un- 
 necessary to have pleaded, that her right accrued 
 after such release. Indeed, the opinion of Hank- 
 ford, Just., is partly followed by an obiter saying 
 in 21 Edw. 4, 24; but neither in that, nor in 
 any other of the printed cases, was the matter 
 judicially before the Court. And if we have 
 recourse for the decision of this question, to the 
 voice of the County, who are the proper judges 
 of the special customs of gavelkind, words can- 
 not be more express to comprehend a release, 
 Ante, p. 11 7. than those of the whole County above, in 55 
 Hen. 3. To which may be' added the following 
 verdicts in the very point : 
 
 Peter de Mer- Itin. Kane. 6 Edw. 2, rot. 17. The whole record where- 
 dale's case. o f j s i nser t e d above, page 84. The demandant being seized 
 of one moiety .of the gavelkind inheritance of his late wife, 
 as tenant by the curtesy, and of the other moiety, as guar- 
 dian to his two sons William and Roger, the jury find, 
 Verdict find- " quod postea praedicto WiWo filio Petri, setatis quindecim 
 
 ing the release annO rum existente, quando idem WilVus fuit plena cetatis, 
 
 of infant at fif- f 
 
 teen, by the " secundum consuetudinem de gavclykynde, soil, post quintum 
 
 custom of ga- decimum annum completum, per quoddam scriptum con-
 
 OF ALIENATION BY AN INFANT. 123 
 
 " fectum apud London., concessit et dimisit praedicto Petro CHAP. III. 
 
 "omnes terras et tenementa cum pertinentiis, quas habuit, 
 
 " sive habere potuit in villis praedictis, per successionem hae- 
 "reditariam de praadicta Agnete matre ipsius WilVi, tenen- 
 "dum eidem Petro ad terminum vitae ipsius Petri ; praadictis 
 " tenementis, unde assisa ista arrainata est, in seisina prce- 
 " dicti Petri existentibus ; qui quidem WilVus, postea rediens 
 " ad praedicta tenementa, factum suum praedictum patriae 
 "notificavit et ratum habuit," &c. And thereupon, judg- 
 ment is given against William for his purparty, though 
 Peter's title to one moiety as guardian, was then at an end ; 
 and as to the other, he had incurred a forfeiture by marriage. 
 
 Mich. T. 9 Edw. 2, C. B. rot. 240, Kane. A nuper obiit De Gatewyk's 
 brought by Richard and William de Gateivyk against Cathe- case< 
 rine de Gateicyk, and others. The pleadings as to the pur- 
 party of Richard, are as follow : 
 
 " Katharina et aliae, per Adam de Byram custodem Bar, that the 
 
 "suum, veniunt et defendunt jus suum, quando, &c., et demandant re- 
 
 ,. ,. . . leased all his 
 
 "quoad propartem quam praedictus Kicardus nhus Kicardt, right of par- 
 
 "clamat, &c., dicunt, quod idem Ricardus nihil juris cla- cenary. 
 
 " mare potest in praedictis tenementis, quia dicunt, quod prce- 
 
 "dictis tenementis, simul cum aliis tenementis in diversis 
 
 " villis in eodem comitatu, in seisina prcedicti Johannis de 
 
 " Gatewtk, patris ipsarum Katherince et aliarum existentibus, 
 
 "idem Ricardus per scriptum suum concessit, remisit, et 
 
 " omnino pro se et haeredibus suis imperpetuum quietum-cla- * 
 
 " mavit prasdicto Johanni totum jus et clameum, quod habuit, 
 
 " vel aliquo modo habere potuit, ratione parcenarias vel com- 
 
 " munis successionis post decessum Ricardi de Gateivyk, 
 
 "patris praedicti Johannis, in omnibus terris, tenementis, 
 
 " messuagiis, redditibus, boscis, pratis, pasturis, molendinis, 
 
 "vivariis, cum omnibus eorum pertinentiis, quae quondam 
 
 " fuerunt dicti Ricardi de Gatewyk, patris praedicti Johannis, 
 
 "in Ash, Hartley, Dartjord, Otford, Sevenoaks, Kemsing, 
 
 " Seal, Kingsdown, et Mapeleschaump, habendum et tenen- 
 
 " dum omnia praedicta tenementa, &c., praedicto Johanni et 
 
 " haaredibus suis de capitalibus dominis feodi imperpetuum, 
 
 "&c.; et proferunt scriptum illud quod hoc testatur, unde 
 
 "petunt judicium, &c.
 
 OF ALIENATION BY AN INFANT. 
 
 BOOK II. 
 
 Demandant 
 replies, that 
 he was under 
 age at the time 
 of the release. 
 
 Tenants rejoin 
 the custom of 
 Kent to he of 
 full age at fif- 
 teen as to 
 aliening gavel- 
 kind lands, 
 and releasing 
 his right ; 
 and that the 
 demandant 
 was fifteen 
 when he re- 
 leased. 
 
 The deman- 
 dant takes 
 issue on the 
 custom. 
 
 Verdict, that 
 one of the age 
 of fifteen, may 
 give and release 
 gavelkind 
 lands, and that 
 thedemandant 
 released at that 
 age. 
 
 Judgment ac- 
 cordingly for 
 the tenants. 
 
 " Et praedictus Ricardus, quoad prasdictum scriptum quie- 
 " tae-clamantiae, bene cognoscit scriptum illud esse factum 
 " suum, sed dicit, quod ipse praetextu script! illius ab actione 
 " praecludi non debet, quia dicit, quod ipse tempore confec- 
 " tionis praedicti script! fuit infra aetatem ; et hoc paratus 
 " est verificare, &c. 
 
 " Et Katherina et alias dicunt, quod praedictus Ricardus 
 " secundum consuetudinem Kancice fuit plena atatis tempore 
 " confectionis praedicti scripti ; dicunt enim, quod consue- 
 " tudo in partibus illis talis est, quod haeres de tenura de 
 " gavelykynde, cum complevit quintum decimum aetatis suas 
 "annum, est plenae aetatis secundum consuetudinem illam ad 
 "tenementa sua alienanda, et jus suum quiete-clamandum, 
 " &c., et dicunt, quod prsedictus Ricardus tempore confec- 
 " tionis ejusdem scripti fuit quindecim annorum et amplius ; 
 " et hoc paratas sunt verificare, &c. 
 
 "Et Ricardus dicit, quod consuetude quam prsedicta 
 " Katherina et aliae allegant, non est talis in partibus prae- 
 " dictis ; dicit enim, quod ad hoc, quod alienatio sive quiete- 
 " clamancia alicujus de tenementis, quae sunt de tenura de 
 "gavelykynde, ipsum praecludere debent, requiritur quod 
 "ipse tempore alienationis seu qmete-clamancice hujusmodi 
 " sit aetatis viginti et unius annorum plene completorum, et 
 "non infra aatatem illam, viz., statim post quintum decimum 
 " annum completum, sicut prasdicta Katherina et aliae dicunt ; 
 "et.hoc petit quod inquiratur per patriam, &c. Et Kathe- 
 "rina et alias similiter. 
 
 "Postea juratores de consensu partium electi, venerunt, 
 " et dicunt super sacramentum suum, quod praedictus Ricar- 
 " dus, tempore confectionis prjedicti scripti quiete-clamancice, 
 " quod praedictae Katherina, Marg., et Eliz., proferunt sub 
 " nomine ipsius Ricardi, fuit astatis quindecim annorum et 
 " amplius, et quod quilibet cetatis quindecim annorum de 
 " tenura de gavelykynde, potest tenementa sua dare, et quiete- 
 " clamantiam imperpetuum inde facere, secundum consuetu- 
 " dinem tenures illius, fyc. 
 
 " Ideo consideration est, quod praedictus Ricardus, quoad 
 "propartem suam ipsum contingentem de tenementis prge- 
 " dictis, nil capiat per juratam istam, sed sit in mia pro falso 
 " clamore, &c."
 
 OF ALIENATION BY AN INFANT. 125 
 
 Plac. * Ass. in Com. Kane. 47 Edw. 3. " Assisa venit CHAP. III. 
 " recognitura si Johannes Wisdom et Isabella uxor ejus, in- 
 " juste et sine judicio disseisiverunt Simonem Parlebien do 
 " libero teneraento suo in Kidbrooke et Eltham, post primam, Wisdom. 
 "&c. Et unde queritur de duodecim acris terrae, et dimidio 
 " acrae prati cum pertinentiis, &c. 
 
 " Et Johannes et Isabella in propriis personis suis veni- 
 " unt, et respondent ut tenentes tenementorum praedictorum, 
 " et dicunt, quod prasdictus Simon assisam inde versus eos 
 " habere non debet, quia dicunt, quod idem Simon per quod- 
 "dam scriptum suum, quod proferunt hie in Curia, cujus 
 " data est die lunae prox. post festum purificationis Beatae The tenants 
 "Mariae anno regni Eegis nunc Angliae 35, remisit et quie- ^^ ^ ^" 
 "turn clamavit eidem Johanni Wisdom, totum jus suum plaintiff 
 "quod habuit in tenementis praedicti s ; et petunt judicium, 
 " si idem Simon assisam inde versus eos contra scriptum 
 " suum prasdictum, habere debeat, &c. 
 
 " Et praedictus Simon, non cognoscendo scriptum praedic- who replies, 
 " turn, dicit, quod ipse ab assisa in hac parte habenda excludi ^ was 
 " non debet, quia dicit, quod ipse tempore confectionis scripti the time. 
 " predict! fuit infra setatem, &c., et hoc petit quod inquira- 
 " tur per assisam, &c. 
 
 "Et praedicti Johannes et Isabella dicunt, quod tenementa Tenants re- 
 "prasdicta sunt gavelkyndensia, et dicunt, quod itsus gavel- ^Itinli&lra.!? 
 " kynd talis est, quod quilibet homo cetatis quindecim anno- fifteen, and by 
 
 " rum, potest terras et tenementa sua dare et alienare, remit- tne custom of 
 
 ._ gavelkmd may 
 " tere et relaxare cuicunq. voluerit, a toto tempore in Lorn. re i e ase at that 
 
 " Kane, usitatus. Et dicunt, quod tempore confectionis a S e - 
 " scripti prsedicti dictus Simon fuit aetatis quindecim anno- 
 " rum, ita quod, tune remittere et relaxare potuit jus suum 
 " de tenementis prajdictis in forma praedicta ; et hoc parati 
 " sunt verificare per assisam, &c. 
 
 "Et praedictus Simon dicit, quod ipse, tempore confec- Plaintiff sur- 
 " tionis scripti praedicti, non fuit ietatis quindecim annorum ; |" e J oins > t "* t 
 " et hoc paratus est verificare per assisam, &c. Et prsadicti fifteen. 
 "Johannes et Isabella similiter. Ideo capiatur inde inter eos 
 " assisa, &c. 
 
 * N.B. The rolls of the records before the Justices of assize are 
 seldom numbered, but the bundles are generally small.
 
 126 OF ALIENATION BY AN INFANT. 
 
 BOOK II. " Recognitores veniunt, qui ex consensu partium ad hoc 
 "elect! et jurati dicunt super sacramentum suum, quod praa- 
 
 Verdict, that " <jictus Simon tempore confectionis script! prtedicti fuit 
 he was up- . _, . ,. T , v ., 
 
 wards of fif- cetatis qumdecim annorum, et amplius. Ideo consideratum 
 
 teen. " est, quod praedictus Simon nihil capiat per assisam istam, 
 
 Judgment for "sed sit in mia pro falso clamore suo, &c. Et praedicti 
 the tenants. "Johannes et Isabella inde sine die." 
 
 Rich.de Bourne Ass. in Com. Kane. 7 Edw. 3, rot. 2. An assize brought 
 
 before former justices of assize, by Richard de Bourne and 
 J. de Hegham. J 
 
 Joan his wife, against John, son of Thomas de Hegham, 
 
 and others, for a large quantity of lands in Littlebourne, 
 Stodmarsh, Chislet, Reculver, and Minster, in the isle of 
 Thanet. 
 
 Bar, that the John de Hegham pleads, " quod tenementa sunt de tenura 
 tenant's father <j e gavelkynde; et dicit, quod praedictus Thomas pater suus, 
 and his mother " obiit seisitus de eisdem tenementis in dominico suo, ut de 
 
 was afterwards feodo et jure ; post cujus mortem, praedicta Johanna, quae 
 seized of the ,, , ' . . ,, .,_ ,. ,. 
 
 lands as guar- nunc quentur simul, &c., ut ipsa, quae nut uxor praadicti 
 
 dian iu gavel- " Thomce, post mortem ipsius Thomce, seisivit prasdicta tene- 
 
 t nant'entered " menta secundum usum de gavelkynde, ratione nutriturce 
 
 on her at fif- " ipsius Johannis filii et haeredis ipsius Thomce, et ea op- 
 
 teen - " tinuit per usagium praedictum, usq. ad aetatem praedicti 
 
 "Johannis filii Thomce, qumdecim annorum; post quod tem- 
 
 " pus, idem Johannes filius Thomce, ut ipse ^qui plence cetatis 
 
 "fuit per usagium praedictum, intravit praedicta tenementa 
 
 " ut hfereditatem suam, et sic tenet ipse tenementa ilia ; et 
 
 "petit judicium, ai prsedicti Ricardus et Johanna de hu- 
 
 "jusmodi possessione praadictae Johannce, ratione nutriturae 
 
 " praedictae, ut prasdicitur, assisam, &c. 
 
 Plaintiffs re- *' Et prasdicti Ricardus et Johanna non dedicunt quin 
 
 ply a release " eadem Johanna habuit nutrituram prasdicti Johannis filii 
 by the tenant ,, ,, . ,. , ,. , . 
 
 at fifteen to his J-homce, seu quin tenuit praadicta tenementa ratione nutri- 
 
 mother, the " turas per usagium, sicut praedictum est, sed dicunt, quod 
 
 eavelkin(T " ^P 8 ^ e ^ ^ e caus ^ a ^ ag sisa sua repelli non debent ; dicunt 
 
 " enim, quod prcedictis tenementis in * seisina ejusdem Johan- 
 
 * If a guardian, after the full age of the heir, continues in posses-
 
 OF ALIENATION BY AN INFANT. 127 
 
 "nte existentibus, prcedictus Johannes filius Thomaa, post CHAP. III. 
 
 " (etatem sttam quindecim annorum, ut ille qui plence cetatis 
 
 "fait secundum usum de gavelkynde, remisit, dimisit, et re- 
 
 " laxavit eidem Johannae totum jus et clameum suum, quod 
 
 " habuit in eisdem tenernentis ; et proferunt inde quoddam 
 
 " scriptum hie in Curia sub nomine praedicti Johannis filii 
 
 " Thomce, quod idem testatur in hasc verba : Universis 
 
 " scriptum hoc visuris, vel audituris, Johannes filius Thomce 
 
 " de Hegham, salutem in domino sempiternam. Noveritis 
 
 " me in pura et legitima (state dimisisse, concessisse, et im- 
 
 "perpetuum quietum-clamasse, pro me et hasredibus meis, 
 
 u Johanna de Hegham matri mess, et haeredibus suis, totum 
 
 "jus meum et clameum quod habui, vel aliquo modo habere 
 
 "potero in futuro, in omnibus et singulis tenementis meis 
 
 "ubicunq. in Com. Kane, existentibus, &c. 
 
 " Et praedictus Johannes filius Thomce, non dedicit pras- The tenant re- 
 
 " dictum esse factum suum, sed dicit, quod scriptum illud ei J oins > that he 
 
 ,,,,.., . N , . was under fif- 
 
 " nocere non debet, dicit enim, quod tempore confectioms teen at ^ Q 
 
 " scripti illius futit infra cetatem quindecim annorum ; et de time of the re- 
 " hoc se ponit super patriam, et praadicti Ricardus et Jo- ease ' 
 "hanna similiter, &c ;" which plea is an admission of the 
 custom. And this record being sent down to the present 
 justices of assize, "coram prasfatis justiciariis, prasdicti 
 "Ricardus et Johanna uxor ejus veniunt, et praedictus 
 "Johannes filius Thomce, non venit ad manutenendum pla- 
 " cituin, quod alias placitavit, &c., sed WiWus de Waure And after- 
 
 "respondet pro eo, quam pro aliis, tanquam eorum ballivus, 
 ' ' 
 
 ...., A , . . . . , , c ,. . . disseisin, 
 
 " et dicit, quod nullam injunam mde fecerunt seu disseismam, & c . 
 
 "et de hoc se ponunt super assisam, &c." And the jury find Verdict 
 
 for the plaintiffs ; which, it seems, they could not have done, 
 
 had not the right passed from the tenant to the plaintiff 
 
 (Joan) by this release ; for otherwise, the tenant's entry had 
 
 been lawful and no disseizin. And on that verdiqt there is and judgment 
 
 judgment for the plaintiffs. f ?I. the P lain ' 
 
 titts* 
 
 sion against the will of the heir, the law looks upon him as an ahator 
 (Co. Litt. 57 b), if with the consent of the heir, he is tenant at will. 
 In either case he is capable of accepting a release ; in the first, be- 
 cause he has a freehold ; in the second, by reason of the privity.
 
 128 OF ALIENATION BY AN INFANT. 
 
 BOOK II. Ass. in Com. Kane. 2 Rich. 2. "Assisa venit recognitura 
 
 "si Johannes Marchall de Rouchestre, et Johanna uxor ejus, 
 
 "injuste, &c., disseisiverunt Alianoram Spicer de Rou- 
 
 Marchall. " chestre, de libero tenemento suo in Rouchestre, post pri- 
 
 " mam, &c. Et unde queritur, quod disseisiverunt earn de 
 
 " duobus messuagiis cum pertinentiis, &c. 
 
 The tenants " Et praadicti Johannes et Johanna in propriis personis 
 
 plead in bar, a sn [ s veniunt, et respondent ut tenentes tenementorum in 
 
 rclcftsc ov tliG 
 
 plaintiff at her " visu positorum, et dicunt, quod assisa inde inter eos fieri 
 
 age of fifteen, "non debet, quia dicunt, quod tenementis prcedictis qua sunt 
 behig^avel^ S " ^ e tenura de gavelkynd, in seisina ipsius Johannaa, dum 
 kind. " sola fuit existentibus, praefata Alianora plence cetatis existens 
 
 " secundum consuetudinem de gavelkynd, viz., de cetate quinde- 
 " dm annorum et amplius, per quoddam scriptum suum quod 
 "hie in Curia proferunt, cujus data est apud Rouchestre, &c., 
 " per nomen Alianorce, filiae Roberti Spicer de Rouchestre, 
 " remisit, relaxavit, et omnino de se et hceredibus suis imper- 
 "petuum quietum-clamavit eidem Johannes, per nomen Jo- 
 " hannce, quae fuit uxor Roberti Spicer patris ipsius Alianorce, 
 " et hceredibus suis, totumjus et clameum quce habuit in mes- 
 " suagiis prcedictis, per nomina duorum messuagiorum situato- 
 " rum in civitate Rossensi, unde unurn messuagium, vocatum 
 " Swan atte Hope, situatur inter messuagium Johannis de 
 " Barton versus East, et messuagium Benedicts Ryx ver- 
 "sus West; et aliud messuagium situm est inter messua- 
 "gium quondam Emmce Godwyne versus East, et rnessua- 
 " gium Roberti Bridbrook versus West, et pi'Eedictum mes- 
 " suagium vocatur Cheker atte Hope ; et ulterius obligavit 
 " se, et hceredes suos, ad warrantizandum eidem Johannes, 
 " hseredibus et assignatis suis, messuagia praedicta cum per- 
 "tinentiis, imperpetuum ; unde petunt judicium, si eadem 
 " Alianora contra scriptum suum praedictum, et quod war- 
 " rantia^t in se continet, assisam de tenementis prasdictis 
 " versus eos habere seu manutenere debeat, &c. 
 
 Plaintiff re- " Et praadicta Alianora dicit, quod ipsa virtute scripti 
 
 plies, that the praedicti, seu warranties in eadem contentae, ab assisa de 
 onad^through . "tenementis praedictis habenda praecludi non debet, quia 
 duress of im- "dicit, quod tempore confectionis scripti illius, ipsa fuit im- 
 prisonment, prisonata in quadam camera in villa praedicta per praadictam
 
 OF ALIENATION BY AN INFANT. 129 
 
 " Johannam, et in eadem detenta, et ulterius eadem Johanna CHAP. III. 
 
 "ipsi Alianora comrainata fuit, quod non comederet, nee 
 
 " biberet, nee exiret abinde, donee eidem Johanna concedere 
 "vellet ad faciendum et sigillandum scriptum praedictum ; 
 "et sic dicit, quod ipsa per hujusmodi duritiarn, imprisona- 
 "mentum, nietum minarum praedictarum, ac cohercionem, 
 "fecit eidem Johanna scriptum praedictum ; et hoc parata 
 "est verificare, unde petit judicium, &c. 
 
 " Et praedicti Johannes et Johanna dicunt, quod tempore Issue joined 
 " confectionis scripti praedicti, praefata Alianora fuit sui juris 
 " ad largum, et extra quamlibet prisonam, et scriptum illud 
 " ex mera et spontanea voluntate sua fecit, et non per duri- 
 'tiam imprisonamenti, metum minarum, aut per coher- 
 " cionem ; et de hoc se ponunt super assisam, et praedicta 
 "Alianora similiter. Ideo capiatur inde assisa. 
 
 " Recognitores veniunt, qui de consensu praedictorum Verdict, that 
 "Alianora, Jokannis, et Johanna ad hoc electi, triati, et ] e C> 
 "jurati, dicunt super sacramentum suum, quod tempore con- 
 "fectionis scripti praedicti prasfata Alianora fuit sui juris ad 
 "largum, et extra quamlibet prisonam, et scriptum illud ex 
 " mera et spontanea voluntate sua fecit, prout praadicti Jo- 
 " hannes et Johanna placitando allegaverunt, et non per 
 " duritiam imprisonamenti, metum minarum, seu per coher- 
 " cionem, prout praedicta Alianora asseruit. Ideo conside- Judgment for 
 " ratum est, quod eadem Alianora nihil capiat per assisam the tenants - 
 "istam, sed sit in mia pro falso clamore suo, et praedicti 
 " Johannes et Johanna eant inde sine die, &c. 
 
 Ass. in Com. Kane. 4 Rich. 2, in iisd. rot. An assize Henry Aleyn 
 brought by Henry Aleyn and Agnes his wife, against .. v ' 
 William de Echynghamme, Knight, and others, for lands in hamme. 
 ' Cranbrook. On nul disseisin pleaded, the jury find spe- 
 cially (among other things) that, " praedictis Henrico et Verdict find- 
 " Agnete in seisina medietatis messuagii et terraa existenti- ing the release 
 "bus, &c. Quidam Galfridus Nettere filius Galfridi Net- ga velkind. 
 " tere, per quoddam scriptum suum, iisdem recognitoribus in 
 " evidentiam liberatum (quod sequitur in haec verba : No- 
 " verint universi per praesentes me Galfridum Nettere 9 
 " filium Galfridi Nettere, de parochia de Cranbrook, conces- 
 
 S
 
 130 
 
 OF ALIENATION BY AN INFANT. 
 
 BOOK II. 
 
 When about 
 seventeen. 
 
 Judgment 
 against the 
 heir. 
 
 J. de Twytham 
 
 v. 
 J. Feversham. 
 
 Release of an 
 infant at fif- 
 teen of gavel- 
 kind lands 
 pleaded. 
 
 "sisse, relaxasse, et imperpetuum pro me et haeredibus meis 
 " quietum-clamasse Henrico Aleyn, et Agneti uxori ejus, de 
 " eadem parochia, totum jus et clameum quod habeo, seu 
 "de ctetero habere potero, in medietate cujusdam messuagii 
 " cum suis pertinentiis, una cum medietate de duabus peciis 
 "terra? cum suis pertinentiis; quam quidem medietatem 
 " praedicti messuagii, una cum medietate dictarum peciarum 
 "terrae, praedicta Agnes habuit ex dono praedicti Galfridi 
 "patris mei, et dictum messuagium cum pertinentiis situa- 
 " turn est, &c.) concessit et * [remisit] imperpetuum prsefato 
 " Henrico, et Agneti, et eorum liaeredibus et assignatis, 
 " totum jus et clameum quce habuit in prcedicta medietate * 
 " [messuagii^, et terra prcedictorum, fyc., in seisina eorundem 
 " Henrici et Agnetis adtunc existente. Recognitores quae- 
 " siti si terra praedicta sit de tenura de gavelkynde, necne, 
 " et cujus setatis praefatus Galfridus filius Galfridi exstitit 
 " tempore confectionis scripti prtedicti, prasfatis Henrico et 
 "Agneti facti, &c., dicunt super sacramentum suum, quod 
 "prcedicta * [terra est de] tenura de gavelkynde, et quod 
 " tempore confectionis scripti prcedicti, prcefatus Galfridus 
 "filius Galfridi fuit circiter cetatem decem et septem anno- 
 " rum, SfC." And judgment is given for the plain tiffs Henry 
 and Agnes for that moiety. 
 
 Ass. in Com. Kane. 4 Rich. 2. An assize of novel dis- 
 seisin, brought by John de Tioyiham and Maud his wife, 
 against John Feversham and Sarah his wife, for lands in 
 Nonington, &c. 
 
 The tenants, as to part of the premises, plead, that 
 " Ricardus Kempe de Brabourne, &c., dedit Johanni Akholt 
 "et Sarce, tenendum eis et haeredibus praedicti Johannis 
 " Akholt imperpetuum ; et de ipsis Johanne Akholt et Sara 
 "exivit quidam Edivardus Akholt, ut filius et haeres eorun- 
 "dem, et postea praedictus Johannes Akholt obiit, post cujus 
 " mortem tenementis prtedictis in seisina prcefatce Sara3 exis- 
 " tentibus, prcefatus Edwardus filius et hceres ejusdem Jo- 
 "hannis Akholt, de cetate quindecim annorum et amplius, 
 
 The roll is obliterated in these places.
 
 OF ALIENATION BY AN INFANT. 131 
 
 "per quoddam scriptum suum, quod hie in Curia proferuift, CHAP. III. 
 
 " remisit et relaxavit eidem Sarae, et hceredibus ac assignatis 
 
 " suis imperpetuum, totum jus et clameum quae habuit in 
 
 " omnibus tenementis praedictis ; quoa quidem tenementa sunt 
 
 "de tenura de gavelkynde, quaa quidem Sara cepit in vi- 
 
 "rum ipsum Johannem Feversham, &c." And neither the 
 
 release, nor the custom, are denied by the plaintiffs. 
 
 Ass. in Com. Kane. 4 Rich. 2. An assize brought by Croke 
 John Croke and Dionise his wife, against John Bolle and T - 
 
 Alice his wife, for lands in Seasalter. 
 
 The tenants plead, that Nicholas de Clyndene father of 
 the plaintiff Dionise, being seized in fee, devised them, ac- 
 cording to the custom of the borough, to his wife Alice 
 for life, who afterwards married Bole; " et postea tene- Plea of release 
 
 " mentis illis sic in seisina eorundem Johannis Bolle et f. nd confirma- 
 tion by the 
 " Alicice existentibus, prcefata Dionisia de (state quindecim plaintiff at fif- 
 
 " annorum et amplius existens, per nomen Dionisice, &c., per teen ^7 tne 
 
 ,A . .A ,. Q custom of 
 
 " quandam cartam suam, quani hie in buna proterunt, c., gav elkmd. 
 
 "concessit et confirmavit eidem Johanni Bolle et Alicice 
 " uxori, et eorum hreredibus ac assignatis, omnia pnedicta 
 " tenementa cum pertinentiis imperpetuum, per nomen, &c., 
 "quae omnia tenementa sunt de tenura de gavelkynde; et 
 " ulterius obligavit se et haeredes suos ad warrantiam, &c." 
 and therefore pray judgment si contra scriptum suum, fyc. 
 
 The plaintiffs reply, " quod ipsa Dionisia est infra setatern. 
 " per quod ipsi cartam illam cognoscere vel dedicere, vel ad 
 "illam respondere non possunt, nee per legem terra) com- 
 " pelli debeant, et petunt assisam : et pro eo quod eadem 
 "Dionisia infra aetatem est, the assize is awarded to be 
 "taken at large ; et prosceptum est vie. quod venire faciat 
 "coram prrcfatis justiciariis Thomam Spriget, &c., testes 
 "in prasdicta carta nominatos, ad recognoscendum simul, 
 " &c." Which shews, that the Court looked upon the exe- 
 cution of the deed to be the matter in dispute. 
 
 Ass. in Com. Kane. 12 Rich. 2. An assize of novel T. de Wormesdl 
 ^seisin, by 1 
 lers, against 
 Sittingbourne . 
 
 disseisin, by Thomas de Wormesell, Robert Brockman, and 
 
 .-, , T T -FT- T ^ /.,- John Kelsham. 
 
 others, against John Kelsham, for lands in Newington, near 
 
 s 2
 
 132 
 
 OF ALIENATION BY AN INFANT. 
 
 BOOK II. 
 
 Plea of the 
 custom of ga- 
 velkind to 
 alien and re- 
 lease, &c., 
 
 and of a re- 
 lease of the 
 lands when 
 above fifteen, 
 to one having 
 before a defea- 
 sible estate un- 
 der the feoff- 
 ment of an 
 infant under 
 fifteen. 
 
 Reply non est 
 factum. 
 
 Bamon 
 
 v. 
 Wardon. 
 
 Plea of custom 
 of gavelkind 
 for women at 
 fifteen to alien, 
 &c. 
 
 Release by one 
 of that age. 
 
 The tenant pleads in bar, that the tenements "sunt de 
 " tenura de gavelkynde ; et dicit, quod habetur ibidem talis 
 " consuetude, quod quilibet tenens aliquorum tenementorum, 
 "quae sunt de tenura de gavelkynde, tenementa ilia cum 
 " fuerit aetatis quindecim annorum, dare possit et alienare, et 
 " totum jus suum remitter e et relaxare ad voluntatem suam, 
 "juxta consuetudinem comitatus praedicti "; and that one 
 Thomas de Wornedale being seized in fee of the premises, 
 et infra cetatem quindecim annorum, made a feoffment in fee 
 thereof to one Adam Elys, and afterwards died, leaving one 
 Maud his sister and heir (under whom the plaintiffs claim), 
 who being " cetatis quindecim annorum et amplius, viz., 
 " aetatis decem et septem annorum, per nomen Matildce filiaa 
 " Ricardi de Wornedale, per quoddam scriptum suum 
 "quod hie in Curia profert, cujus data est, &c. remisit et re- 
 " laxavit, et omnino de se et haeredibus suis imperpetuum 
 " quietum-clamavit praefato Adce et ipsi Johanni Kelsham, 
 " totum jus suum et clameum quae habuit, vel aliquo modo 
 " habere potuit, in tenementis praedictis cum pertinentiis, &c., 
 "praedicto Johanne Kelsham in possessione prcedictorum 
 " tenementorum adtunc exlstente, fyc" 
 
 The plaintiffs reply, that the release non est factum prts- 
 dictce MatildcB : which puts in issue neither the custom, nor 
 the infancy, but the execution of the deed only. And upon 
 this, issue was joined, &c. 
 
 Ass. in Com. Kane. 13 Kich. 2. An assize brought by 
 Peter Hamon and Isabel his wife, against John Wardon 
 the elder, for lands in Egerton, &c. 
 
 The tenant pleads in bar, "quod tenementa in visu posita 
 " tenentur secundum consuetudinem de gavelkynd ; et dicit, 
 " quod per consuetudinem de gavelkynd, mulieres quae sunt 
 "inde tenentes, cum setatis quindecim annorum fuerint, 
 " tenementa ilia alienare possunt ; et dicit, quod prtedicta 
 " Isabella, per nomen Isabella Brestcombe, dum sola fuit, et 
 " (Btatis quindecim annorum et amplius, per quoddam scrip- 
 "tum suum quod hie in Curia profert, &c., cujus data est, 
 " &c., remisit et relaxavit, et omnino de se et haeredibus suis 
 "imperpetuum quietum-clamavit eidem Johanni Wardon
 
 OF ALIENATION BY AN INFANT. 133 
 
 "seniori, per nomen Johannis Wargedon, et Agneti tune CHAP. III. 
 
 "uxori ejus, adtunc tenentibus tenementorum prsedictorum, 
 
 "et hteredibus ipsius Johannis Wardon senioris, totum jus 
 " et clatneum quod habuit, seu quovismodo habere potuit in 
 " tenementis prsedictis, per nomen omnium terrarum et tene- 
 "mentorum quse quondam fuerunt Rogeri de Brestcombe 
 " patris sui ; et obligavit se et haeredes suos ad warrantiam, 
 " fyc., unde petit judicium, &c." The plaintiffs reply, non 
 estfactum, and at the day of trial are nonsuited. 
 
 A warranty on a feoffment within the custom Whether a 
 is said to be void, the custom not extending to warrant 7 on 
 it. (11 Hen. 4, 33 ; [1 Roll. Abr. 568, H. pi. 5.]) LffmeTbe 
 But see before, 121, 131, and supra (m). g d - 
 
 2ndly. It is said in some of the books, that the Whether the 
 custom warrants no alienation, but upon a sale alienation be 
 (21 Edw. 4, 24; Old Bendl. 7; New Bendl. 33, ^. m 
 by Hales, Serjeant), for a full and sufficient re- 
 compense. (Lamb. Peramb. ff f , ff-|-, 566 ; Noy's 
 Max. 40.) For the words of the Custumal are 
 doner et vender (Lamb, ibid); and those of 55 
 Hen. 3, rot. 5 (ante, 117), are dare, vendere. But 
 the other two copies of the Custumal read doner 
 ou vender in the disjunctive ; nor can I find any 
 instance on record, wherein the consideration for 
 
 ( m) By recent statutes the effect of warranties may be 
 considered as entirely taken away. The 3 & 4 Will. 4, c. 27, 
 enacts, that no warranty shall defeat any right of entry or 
 action for the recovery of land. (sec. 39.) And the 3 & 4 
 Will. 4, c. 74, enacts, that all warranties of lands made 
 or entered into by any tenant in tail thereof, shall be ab- 
 solutely void against the issue in tail, and all persons 
 whose estates are to take effect after the determination, or 
 in defeazance of the estate tail. (sec. 14.)
 
 134 OF ALIENATION BY AN INFANT. 
 
 BOOK n. the feoffinent is set out, as probably it would be, 
 were it necessary ; but the common way of plead- 
 ing is, quod dedit et concessit, $*c. : or sometimes, 
 quod feoff avit, fyc., or dimisit, or remisit et relax- 
 avit, as in the instances before (n). 
 
 Whether to 3rdly. Some have said, that the infant must 
 i j . 
 
 lands coming ] iave fo Q lands by descent, and not by purchase, 
 
 t)v descent. 
 
 for the words of the Custumal, ceux heirs, do not 
 include purchasers. (Lamb. Peramb. -ff|-, 566 ; 
 0. Bendl. 7 ; N. Bendl. 33, by Hales, Serjeant, 
 who was a Kentish man.) So is the language 
 
 (n) Agreeably with the authorities above cited, it is said 
 by Mr. Coventry in his edition of Powell on Mortgages 
 (vol. 1, p. 265, 6th edit, note G), to have been the opinion 
 of a very eminent conveyancer (after referring to the doubt 
 by Robinson), that a gavelkind tenant by descent could not 
 mortgage until twenty-one, or dispose of his lands while 
 under that age, for any other purpose than on an absolute 
 sale for valuable consideration. And Mr. Coventry adds, 
 " Customs in derogation of the common law are to be con- 
 strued strictly ; thence it should follow, that a conditional 
 sale could not be made where the custom only authorizes an 
 absolute one." This opinion has been generally coincided 
 with by the profession. (See Sandys Consuet. Kanciae, p. 
 169.) 
 
 It is said, however, that a sale by a woman of the age of 
 15, causa matrimonii prcelocuti, is a good conveyance; for 
 marriage was reckoned to be a good and sufficient considera- 
 tion. (Bacon's Abr. tit. "Gavelkind.") But whether a 
 Court of Equity would consider that the custom enabled her 
 after such marriage, while under age, to declare by feoffment 
 the trusts contained in the settlement, so as to enable her 
 trustees on a sale by them in pursuance of her appointment, 
 to compel a specific performance of a contract by the pur- 
 chaser, is a question not free from doubt.
 
 OF ALIENATION BY AN INFANT. 135 
 
 of Mich. T. 11 Edw. 3, B. R. rot. 133, arid Mich. CHAP. III. 
 T. 20 Rich. 2, B. R. rot. 62, that hceredes de gavely- 
 kynde possunt alienare, fyc. For this reason, it is 
 said, that the custom extends not to empower 
 him to alien lands given him by will. (Noy's 
 Max. 40.) But the conclusion is somewhat too 
 hastily drawn; for the words of other records are 
 more general, as that quilibet tenens, cf-c., as in 55 
 Hen. 3, Itin. Kane. rot. 5, ante, 117; Mich. T. 
 9 Edw. 2, C. B. rot. 240, ante, 123; Ass. in 
 Com. Kane. 47 Edw. 3, ante, 125 ; and Ass. in 
 Com. Kane. 12 Rich. 2, ante, 131. And like- 
 wise, among the same records of the same year 
 (12 Rich. 2) in Mich. Pour's case, it is pleaded, 
 " quod habetur talis consu'etudo in comitatu prse- 
 " dicto, qu.bdquilibet tenens terrarum et tenemento- 
 "rum quse sunt de tenure, de gavelkynd, tenementa 
 " ilia cum astatis quindecim annorum fuerit in feodo 
 " alienare potest ;" and a feoffinent accordingly. 
 And in Trin. T. 12 Edw. 1, C. B. rot. 68, Kane., 
 in a dum fuit infra cetatem, and issue joined, 
 whether the plaintiff were of full age, the jury 
 find, quod fuit quindecim annorum quando dimi- 
 sit, tyc. Requisiti quantce cetatis homo debet esse 
 qui tenet in gavelikende, qui possit all-am feoffare, 
 per quod stabile sit feoffamentum suum, dicunt, quod 
 quindecim annorum (o). 
 
 Co} This point does not appear to have been ever judi- 
 cially decided, but, notwithstanding the general expressions 
 used in the records above cited, it is said, that the sale must 
 be of lands coming to the infant by descent, and not by
 
 136 
 
 OF ALIENATION BY AN INFANT. 
 
 BOOK II. 
 
 4thly. He must be seized in fee. An infant 
 above the age of fifteen years, made a feoffinent 
 of lands in gavelkind whereof he was tenant in 
 tail; the Court held clearly, that this feoffment 
 
 Whether to 
 lands of 
 which the 
 
 seized in fee. was no Discontinuance, nor shall bind the infant, 
 
 purchase, because, the infant's purchase could not be a sub- 
 ject matter for the custom ; for, the Conqueror must be 
 presumed to confirm nothing but a privilege that is imme- 
 morial. (Bacon's Abr. tit. "Gavelkind"; see also Powell on 
 Mortgages by Coventry, vol. 1, p. 265, 6th ed. note G.) And 
 such is the opinion of many conveyancers. Mr. Wilson in 
 his edition of this work (p. 279) considers the point at least 
 doubtful, but inclines to the opinion, that the ^privilege is 
 confined *to infants taking by descent, and cites the Custumal 
 in support of it. On the contrary, Mr. Sandys (Consuet. 
 Kancize, p. 165) states, that " neither in practice at this day, 
 nor according to a succession of ancient records (referring to 
 those above mentioned), has the custom received so limited 
 and restricted a construction"; and with reference to the 
 Custumal, observes, that the doubt expressed by Mr. Wilson 
 would have greater weight, if our Kentish customs owed 
 their creation, origin, and existence to it ; " but as the Cus- 
 tumal is merely the record and allowance of customs which 
 have existed from the Saxon period of our history, we may 
 safely look to the ancient decisions of the justices in eyre, 
 and to the modern usage, as authoritative exponents of it." 
 (p. 168.) 
 
 If this custom were held to be confined to land acquired 
 by descent, the Inheritance Act (3 & 4 Will. 4, c. 106), 
 would, it is presumed, afiect this right to enfeoff where the 
 ancestor had devised the land to his heir ; for, by the 3rd 
 section it is enacted, that where land shall be devised to the 
 heir, or to the person who shall be the heir of the testator, 
 such heir shall be considered to have acquired the land as 
 a devisee, and not by descent ; thus conferring on him a 
 new estate by purchase.
 
 OF ALIENATION BY AN INFANT. 137 
 
 for the custom shall never enable him to do a CHAP. III. 
 tort; and therefore, shall be taken to extend only 
 to land whereof he is seized in fee. ( Vaughan v. 
 Hoicks^ Cro. Jac. 80.) (p) 
 
 It seems, that an infant may within the custom, Whether a 
 
 make a lease for life, or gift in tail, by livery S lf |; m tail, 
 
 . or for life by 
 
 proprid manu ; for a custom to grant lands in fee- ii ve ry be 
 
 simple, a fortiori extends to granting them for a within the 
 
 lesser estate. (Co. Copyh. sect. 33; Co. Litt. 52 custom> 
 
 b; Stanton v. Barnes, Cro. Eliz. 373.) Nay, if 
 
 a custom be to grant in fee et non aliter, yet he 
 
 may grant for life, or, to A. for life, remainder 
 
 to B. in tail. (Smartle v. Penhallow, Salk. 189, 
 
 per Holt, Ch. Just.) 
 
 Cp) A. feoffment by a tenant in tail of land in possession, 
 formerly caused a discontinuance of the entail, which had 
 the effect of taking away the right of entry of the issue, 
 and also of the remainder-men and reversioners, and to 
 put them to their actions to recover the estate ; but the stat. 
 3 & 4 Will. 4, c. 27, enacts, that no discontinuance shall 
 defeat any right of entry or action for the recovery of land, 
 (sec. 39.) And the stat. 8 & 9 Viet. c. 106, enacts, that no 
 feoffment shall in future have any tortious operation for any 
 purpose whatever, (sec. 4.) 
 
 T
 
 138 
 
 CHAP. IV. 
 
 BOOK II. 
 
 The origin 
 of this cus- 
 tom. Spelra. 
 of Feuds, 38. 
 
 Vide King 
 Ethelred's 
 charter in 
 the preface 
 to the 6th 
 Report. 
 
 What the 
 custom is. 
 
 THE FATHEK TO THE BOUGH, 
 AND THE SON TO THE PLOUGH. 
 
 THE hereditary lands among the Saxons (other- 
 wise called Bocland) were not subject to any feo- 
 dal service, and therefore, could not escheat to 
 any feodal lord. And this was the general usage 
 of England, till the Conqueror, introducing here- 
 ditary feuds, imposed therewith, among the rest 
 of the feodal servitudes, this of escheats. But 
 even then, as at this day, if a man fled for felony, 
 and was outlawed, he being esteemed a common 
 enemy, caput lupinum, one out of the King's 
 protection, his lands were forfeited to the Crown. 
 And our Kentish gavelkind retains these, as well 
 as many other properties of the Saxon allodium; 
 for, by the custom of Kent, if tenant in fee-sim- 
 ple of lands in gavelkind commit felony, and 
 suffer judgment of death, he shall incur for- 
 feiture of his goods, but his lands of that tenure 
 shall not be forfeited, nor escheat to the King,* 
 
 * Customs which are by reason of the land, as Gavelkind 
 and Borough-English, bind the King, but customs by reason 
 of the person or the goods do not. (35 Hen. 6, 28 a ; Bro. 
 Custom, 5.)
 
 THE FATHER TO THE BOUGH, ETC. 139 
 
 or other Lord of whom they are holden ; but CHAP. IV. 
 the heir, notwithstanding the offence of his an- 
 cestor, shall enter immediately, and enjoy the 
 lands by descent after the same customs and ser- 
 vices, by which they were before holden. (Con- 
 suetud. Kane., post; Lamb. Peramb. --5-^; 8 
 Edw. 2, Itin. Kane. Fitz. Prescription, 50; 22 
 Edw. 3, Prescription, 40, ibid, pi. 60; Dyer, 
 310 b ; 2 And. 152 ; Somn. 48, 53, 146 ; Bacon's 
 Use of the Law, oct. edit. 139 ; 1 Sid. 137 ; 1 
 H. H. P. C. 360 ; 3 Bulst. 215 ; Dr. & Stud. 40.) 
 Which has given occasion to the proverbial 
 expression, 
 
 The father to the bough, 
 And the son to the plough. 
 
 (Stat. 17 Edw. 2, de Prarog. Reg. c. 16.) Or, 
 as it is somewhat differently expressed in the 
 manuscript copy of the Consuetudines Kane, in 
 Lincoln's Inn Library : 
 
 The fader to the bonde, 
 And the son to the londe. 
 
 Nor shall the King have the year, day, and 
 waste of lands in gavelkind holden of a common 
 person, where the tenant is executed for felony. 
 (Consuetud. Kane., post; 8 Edw. 2, Itin. Kane. 
 Prescription, 50 ; 20 Hen. 6, 8 b ; Stamf. de 
 Prasrog. 49 b, 50 a; Lamb. Peramb. f ^; 3 Bulst. 
 215.) Which seems to be but a consequence of 
 the other custom, according to the general rule 
 in Bracton, 130 a, 131 a: " Non debet Rex de 
 
 T 2
 
 140 
 
 THE FATHEK TO THE BOUGH, 
 
 How it is 
 confined. 
 
 BOOK II. "jure habere annum et diem de aliqud terrd quce 
 " non possit esse escheata dominorum" 
 
 But this custom holds only where the defen- 
 dant submits to the judgment of the law, and not 
 where he withdraws himself from the hands of 
 justice, and will not abide a legal trial; for, if 
 tenant in gavelkind, being indicted for felony, 
 absent himself, and is outlawed after proclama- 
 tion made for him in the county, his heir shall 
 reap no benefit by the custom, but the lands 
 shall escheat to the lord [of whom they are 
 immediately holden]; and the King shall have 
 year, day, and waste in them, if holden of another, 
 in like manner as the common law directs, as to 
 lands which are not subject to the custom of 
 gavelkind. (Consuet. Kane., post ; Itin. Kane. 
 55 Hen. 3, rot. 86 ; 7 Edw. 1, Itin. Kane. rot. 
 31 ; 6 Edw. 2, Itin. Kane. plac. coron. rot. 
 62 ; 8 Edw. 2, Itin. Kane. Prescription, 50 ; 22 
 Edw. 3, Prescription, 40; Stath. Custom, pi. 2; 
 Lamb. Peramb. f^f; Stamf. de Prserog. 40 b; 
 2 Roll's Rep. 368 ; 1 H. H. P. C. 360; Wright on 
 Tenures, 210.) And so it was adjudged in Cane. 
 28 Eliz., between BTOCCLS and Savage. (Cited in the 
 margin of the last edition of Dyer, 310 b.) (q) 
 
 "In itinere W. de Ralegh, in Com. Kane. Assisa mortis 
 " antecessoris, &c. Si Adelophus, &c., ubi dicitur, quod felo- 
 
 (q) The common law lands of a felon, do not now es- 
 cheat to the lord of the fee (who in the case of freeholds is 
 generally the King), except for the crime of treason, or 
 murder. (54 Geo. 3, c. 145.)
 
 AND THE SON TO THE PLOUGH. 141 
 
 " nia antecessoris non impedit seisinam haeredis, nee succes- CHAP. IV. 
 
 " sionem ; sed hoc specialiter in Com. Kane, de tenementis 
 
 "quae tenentur in gavelkind, si ille qui feloniam fecerit, 
 "judicium sustinuerit" (Bract, lib. 4, fol. 276 b.) 
 
 It is said obiter in Chapman 's case (2 Roll's Rep. Whether a 
 
 368), that if a brother in gavelkind is attainted, ^ th .ershall 
 
 . . . ' inherit the 
 the land shall escheat; though otherwise it is, gavelkind 
 
 if the father be attainted, for, The father to the lands of his 
 bough, and the son to the plough ; and the reason cuted f or 
 there given is, that the custom shall be taken felony, 
 strictly. 
 
 But this is a mistaken opinion. Mr. Lambard 
 in his Peramb. f i^-, though he admits that some 
 have doubted whether the brother or uncle shall 
 have advantage of this custom, is notwithstanding 
 of opinion himself, that whoever the heir be, he 
 shall enjoy this privilege under the custom, as 
 well as the son ; because, the words of the Cus- 
 tumal extend to the heir in general, and are not 
 restrained to the son alone. 
 
 And it is a distinction unknown to most of the 
 authorities, both ancient and modern, the words 
 of which are general as to all heirs : 
 
 " Felonia antecessoris non impedit seisinam haeredis, nee 
 " successionem." (Bract, supra.) " By the custom of Kent, 
 " if a man be hanged for felony, the lord shall not have the 
 " escheat." (8 Edw. 2, Prescription, 50.) " The land is not 
 " forfeitable nor escheatable for felony." (Bacon's Use of the 
 Law, 139.) "If the ancestor be executed for felony, the 
 "land shall not escheat, but descend to the heir." (1 H. H. 
 P. C. 360.) 
 
 Rot. claus. 8 Rich. 2, m. 2, Kane. The King writes to 
 the sheriff of Kent, to re-deliver the gavelkind lands of a 
 man executed for felony, which he had seized. " Cum se-
 
 142 THE FATHER TO THE BOUGH, ETC. 
 
 BOOK II. " cundum consuetudinem de gavelkind in hoc casu, nos ha- 
 " here non debemus annum, diem, neque vastum, nee capi- 
 " tales domini inde escheatam ; sed proximi hceredes sic cou- 
 "victorum et suspensorum htereditatem suam immediate 
 " consequuntur, felonia ilia non obstante." (Taylor's Hist, 
 of Gavelk. 107.) 
 
 Dower of And by the same custom, the wife's dower of 
 gavelkind ^ e mo i e ^y o f gavelkind lands, was in no case 
 withstand- forfeitable for the felony of the husband, but 
 ing the felo- where the heir should lose his inheritance. (Con- 
 
 suet Kanc -> P st ; 8 Hen - 3 > Prescription, 60; 
 
 Lamb. Peramb. f^f ; Noy's Max. 28 ; Bract, lib. 
 
 4, fol. 311.) (r) 
 
 This custom This custom holds only in case of felony, and 
 extends not ex tends not to treason; for, if a man be any way 
 
 to high . -i ,. T /v 1- -I-I--I-IT 
 
 treason. attainted of this onence, his gavelkind lands are 
 forfeited to the King, notwithstanding this usage. 
 (Lamb. Peramb. f^; Dav. 37; 1 H. H. P. C. 
 360; Wright's Tenures, 118.) (s) 
 
 (r) The stat. 1 Edw. 6, c. 12, enacts, that the wife of a 
 person attainted, convicted, or outlawed for felony, shall not 
 be deprived of her dower, (sec. 17.) 
 
 (s) A forfeiture of lands for high treason, does not take 
 effect unless an attainder be had, which occurs only when 
 judgment of death or outlawry is given. And therefore, if 
 a traitor dies before judgment is pronounced, or is killed 
 in open rebellion, or hanged by martial law, it works no 
 forfeiture of his lands. ( 4 Bl. Com. 381, 387.)
 
 Various 
 readings in 
 Tottel's edi- 
 tion, 1556. 
 
 143 
 
 Various 
 readings in 
 the M. S. of 
 Lincoln's 
 Inn. 
 
 The title is 
 Consuetu- 
 dines Kan- 
 cice. 
 
 THE 
 
 CUSTUMAL OF KENT.* 
 
 FROM MR. LAMBARD S COPY, WITH HIS 
 TRANSLATION. 
 
 The title is 
 Constitutio- 
 nes Kane. 
 
 THESE are the usages, and customes, 
 
 a Et les cus- Ces sount les vsayes, ** et les custumes, * Et les cus- 
 
 tumes omit- , , . , ,, , . tumes omit- 
 
 tec l. the which the comunaltyoi Kent claim- ^ 
 
 les ques le comunaute de Kent, clei- 
 
 * As I have subjoined this Custumal to my 
 own work, it may possibly be expected, that 
 I should say something concerning the nature 
 and authority of it ; especially as the latter 
 has been attacked by Sir Henry Spelman, 
 who, in his Treatise of Feuds, c. 14, says, 
 that there are such differences between Tot- 
 tel's and Lambard's copies, that both their 
 authorities may be questioned. But what 
 foundation there is for this assertion, is left to 
 the judgment of the reader, on the view of 
 those differences which are here noted in the 
 margin. 
 
 I have not been negligent in my endeavours 
 to find out, whether this Custumal be any-
 
 144 CUSTUMAL OF KENT. 
 
 Various eth to have in the tenements of gavel- Various 
 
 ladings in t tenements de qauyle- read . in g s M - 
 
 Tottelsedit. * * S. Line. Inn. 
 
 * The words kind, and in the men of gavelkind, *al- * The words 
 between the kmde g en gentz de gauilekendevs* d- between the 
 stars omit- * stars, and 
 
 ted. likewise the 
 
 where on record. Mr. Lambard's copy men- 
 tions, that the usages therein contained, were 
 
 (a) A.D. 1293. allowed in Eyre in the 21st year of Edw. l.(a) 
 It happens, that the records of that iter are 
 perfectly preserved, and I have perused them 
 all, viz., the Chief Justice's (Berewicke) roll, 
 the Rex roll, the roll of the Pleas of the 
 Crown, and the Quo Warranto roll, but there 
 is no such record among them, nor among 
 those of any other iter ; and the language of 
 the Custumal, being different from that where- 
 in the proceedings before those Justices were 
 recorded (which were ever in latin), leaves 
 us little reason to believe that it had its origin 
 there. 
 
 Lord Coke gives it the high appellation of 
 Statutum de Consuetudinibus Kancice, but, it 
 seems, on no other foundation, than that it 
 is sometimes to be met with in old collec- 
 tions of statutes, as are many other matters 
 which were never enacted by authority of 
 
 <6) A.D. 1556. parliament, and is so printed by Tottel (b} ; 
 for, I have examined the parliament rolls of 
 the 21st year of Edw. 1 (of which date the 
 Custumal appears to be by the conclusion), 
 and those of the preceding and subsequent 
 years, being much the same as are published 
 by Ryley, under the name of Placita Parlia- 
 mentaria, and it does not occur there. 
 
 I then hoped to have found it at the Tower,
 
 CUSTUMAL OF KENT. 145 
 
 Various lowed in Eire before John of Berwike Various 
 readings in kwes m Eire Mn d& Berewike readings M. 
 
 I otters edit. o. Line. Inn. 
 
 following 
 
 words cesta- 
 but on inquiry, was informed, that there was scauo { r que 
 
 no such record in that office. toutes les 
 
 I have, notwithstanding, little reason to la- cors de Ken- 
 ment my search, since it first brought me to te ^' a *" e 
 
 the knowledge of those records of the Kentish ,, 
 
 the sentence 
 iters, which are inserted in this book, and begins 
 
 going to almost every point of our customs, Solent 
 take away, in a great measure, the necessity frankz, &c. 
 of authenticating the Custumal: which I 
 imagine rather to have been a private collec- 
 tion of such things as had been found per 
 * Vide ante, totum comitatum *, or were otherwise known 
 to be the custom of Kent, than a record of a 
 public nature ; and the words of Mr. Lam- 
 bard's copy, that these customs were allowed 
 before the Justices in Eyre, in the 21st Edw. 
 1, seem to favour a conjecture, that they might 
 be extracted by command of those judges 
 from the records of their predecessors, for the 
 information of their own and future times. 
 
 However, thus much may be said for the 
 present authority of the Custumal, whether 
 authentic in its original or not, that it has 
 received such a sanction from its antiquity, 
 as to have been admitted in evidence to a 
 jury, even from Mr. Lambard's copy. (Laun- 
 der v. Brooks, Cro. Car. 562.) (c) 
 
 (c) Mr. Lambard says, that he had copied the 
 Custumal from an ancient and fair written Roll, that 
 was given to him by Mr. George Multon, his father- 
 in-law, and which sometime belonged to Baron Hales 
 of this County. (Peramb. p. 569, edit. 1596.) 
 
 U
 
 146 CUSTUMAL OF KENT. 
 
 Various and his companions, the justicesin Eire Various 
 ^ adl "PV? e ses compagnions, justices en Eire l?^ 88 ^' 
 
 in Kent, the 21 yeere of King E., the 
 en Kent, le 21 an le Roy Ed., 
 
 sonne of King Henrie.* That is to say, 
 fitz le Roy Henrie* Cestascauoir, 
 
 that all the bodies of Kentish men be 
 a Les corps que toutes a les cors de Kenteys seyent 
 
 gavelkindes. 
 
 tree, as well as the other free bodies 
 francz, auxi come les autres fraunz cors 
 
 b The whole of Englande. b * And that they ought * The whole 
 
 passage con- J) eng l eterre . Et que Hz ne dui- Passage con- 
 
 cerning the cernmg the 
 
 escheator not the eschetor of the King to chuse, escheator 
 
 uent le esclietour le Roy elire, omitte(L 
 
 nor ever in any time did they ; but 
 ne vnkes en nul temps ne fesoint ; mes 
 
 the King shall take, or cause to be 
 le Roy prengne, ou face pren- 
 
 taken, such an one as it shall please 
 dre, tiel come luy plerra, 
 
 him, to serve him in that which shall 
 de ceo qui soit mistier a luy 
 
 be needful. And that they may their 
 seruir. Et quilz pusent lour 
 
 landes and their tenements give and 
 c Doner ou terres et lour tenementz c f doner et f Doner ou 
 
 sell, without licence asked of their 
 vender, saunz conge demaunder a lour
 
 CUSTUMAL OF KENT. 147 
 
 Various lordes ; saving unto the lordes, the Various 
 
 readings m seiqneraqes ; sauues a seiqnoraqes, les readings M. 
 Tottel'sedit. 9 S.Lmc.Inn. 
 
 rents and the services due out of the 
 rentz e les sernices dues des 
 
 same tenements. And that all and 
 mesmes le tenementz. Et que touz e 
 
 every of them may by writ of the King, 
 chescun puseit per bre le Roy, 
 
 or by plaint, plede for the obtaining 
 a Asondroit. ou per pleynt, pleder pur a * lour droit *Asondroit. 
 
 of their right, as wel of their 
 b Desouth. purchaser, auxibien b f de lour f Desouz. 
 
 lordes as of other men. And they 
 seignerages come des autres gentz. Et 
 
 clairne also, that the communaltie of 
 c Auxibien clament c auxi, que la commune de 
 
 monaunce gavelkindmen, which hold none other 
 de la gavel- gauylekendeys, que ne tenent mes 
 
 than -tenements of gavelkinde nature, 
 que tenement gauylekendeys, 
 
 ought not to come to the common 
 ne deiuent venir a la commune 
 
 summonce of the Eire, but onely by 
 somonse del Eire, mes ke per 
 
 the borsholder, and foure men of the 
 borgesaldre, et iiij hommes* de la * The words 
 borowe: except the townes which 
 borghe: hors pris les villees que ted. 
 
 u 2
 
 148 CUSTUMAL OF KENT. 
 
 Various ought to aunswere by twelve men in Various 
 
 readings in ^^ responder per xij hommes* en readings M. 
 Tottelsedit. * y S. Line. Inn. 
 
 the Eire. And they claime also, that if 
 le Eire. Et clament auxi, que sil 
 
 any tenant in gavelkinde be attainted 
 nul tenant en gauylekend seit atteint 
 
 of felonie, for which he suffereth 
 de felonie, per que il suffre 
 
 execution of death, the King shall 
 a Fuise. a -f iuyse * de mort, eit le Roy f lues. 
 
 have all his goods, and his heire forth- 
 touz ses chateux, e son eir meinte- 
 
 with after his death, shall be inherit- 
 nant apres sa wort, seit enherite 
 
 able to all his landes and tenements 
 de touz ses terres et tenemenz 
 
 which he held in gavelkinde in fee, 
 que il tient en gauylekende en fee, 
 
 and in inheritance ; and he shall hold 
 e en heritage; e les tiendra 
 
 them by the same services and cus- 
 per yiesmes les seruices et cus- 
 
 tomes, as his auncestors held them ; 
 tomes, sicome ses auncestres les tyn- 
 
 * Perhaps it should be justice de mort, for 
 it will be difficult to fix the true signification 
 of any of the other wprds.
 
 CUSTUMAL OF KENT. f 149 
 
 Various whereupon it is said in Kentish : " the Various 
 readings in drQnt dmt est dist en Kenteis:* * " be readings M. 
 Tottels edit. S. Line. Inn. 
 
 a Sonde the- father to the boughe, and the sonne * Son the 
 to J>e boughe, and J* son 
 
 the sonne to t th ploilglL And if ^ e ] iave a the son to 
 the plough. . .the londe. 
 
 to J>e plogh. Et si il eit 
 
 wife, foorthwith be she endowed by 
 femme, meintenant seit dowe per 
 
 the heire (if he be of age), of the 
 
 b Sil soit del le heir, b f sil seit doge, de la f Sile' soit 
 age a aver et T_ ii / 11 ,1 i -i i . dage a aver 
 
 tener solonc one halle oi all the landes and tene- e t tenir 
 
 le fourme meytie de touz les terres^ e tene- solonc le 
 
 avaunt dit. . ' fourme 
 
 Et de celes ments, which her husband held of avant dit. 
 
 terres le m^r que son baroun tint de Et de , celes 
 Roy,&c.(but terns le 
 
 falsely). gavelkind nature in fee, to have and Roy,&c.(but 
 
 gauylekend en fee, a auer e ase y> 
 
 to hold according to the forme here- 
 a tener solonc la fourme de 
 
 after declared. And of such lands 
 suthdyte. Et de tiels terres 
 
 the King shall not have the yeere, 
 le Roy ne auera an, ne wast, 
 
 nor wast, but only the goods, as is 
 mes tant soulment les chateux, sicome 
 
 before said. And if any man of 
 il est auant dit. Et si nul 
 
 gavelkind, either for felonie, or for 
 gauylekendeis, pur felonie, oupiir
 
 150 CUSTUMAL OF KENT. 
 
 Various suspicion of felonie, withdraw him Various 
 
 readings in ret defeknie, se suthrei T ^ n & M - 
 Tottel s edit. * k. Line. Inn . 
 
 out of the country, and be demanded 
 a Peace. de la a pees, e seit en counte 
 
 in the countie as he ought, and be 
 demande com il appent, e 
 
 afterward outlawed, or put himselfe 
 puis vtlaghe, ou sil se met 
 
 into the holy church, and abjure the 
 en seinte eglise, et foriure la 
 
 land and the realme ; the King shall 
 b Ove le terre b * one le reaume ; le Roy auera * The words 
 
 reaume, ore le 
 
 omitted. have the yeere and the wast of his reaume, 
 
 c De ses Ian e le wast c f de ces omitted - 
 tenementes De ces te- 
 
 e de ses ter- landes, and of all his tenements, to- nementz et 
 
 res ceo aue ^ de ces terres, 
 
 de'luysont terres i et de touz ses tenement, ceoquedelui 
 tenus,en- ,, .-, -,-, , . 3 , , -, sont tenus, 
 
 sembiement, gether with all his goodes and chattels : ensemble- 
 
 &c. (but ensemblement one touz ces chateus : ment ' &c - 
 falsely.) (but falsely.) 
 
 so that after the yeere and the day, 
 issint que apres Ian e le iour, le 
 
 the next lord, or lordes, shall have 
 plus procheyn seig., ou seigneurs, eyent 
 
 their eschetes of those lands and tene- 
 leur eschetes de celes terres e tene- 
 ments, every lorde that which is 
 menz, chescun seigneur ceo que de
 
 CUSTUMAL OF KENT. 151 
 
 Various immediately holden of him. And Various 
 
 readings in fay est tenu sans men. * Et read . in S 3 M - 
 Tottelsedit. y S. Line. Inn. 
 
 they claime also, that if any tenant 
 clament auxij que si ascun tenant 
 
 * Mr. Somner (p. 170) gives us from an 
 ancient copy of the Custumal, formerly re- 
 gistered in a book belonging to the abbey of 
 St. Austin, Canterbury, another clause, fol- 
 lowing the words, est de lui tenu sans men, 
 viz. E si home ou femme seit feloun de sei 
 mesmes, que il sey mesmes de gre se ocye, le 
 Roy aura le chatteux tuts, et nient le an ne le 
 wast, mes le heir seit tantot enherite sans con- 
 tredit, kar tout seit il feloun de sey mesmes, 
 il neyt my atteint de felonye. Thus in En- 
 glish, And if a man or woman shall be a 
 felon of him or herself, who shall kill him or 
 herself of his or her own accord, the King 
 shall have all the chattels, and not the year 
 nor the waste, but the heir shall immediately 
 inherit without contradiction, for though he. 
 or she be a felon of him or herself, he or she 
 is not attainted of felony. This has been 
 omitted in later copies (as I suppose) because 
 no other than the common law. [See Rex 
 v. Bridger, 1 Mees. & W. 145.] But I chose 
 to take notice of it, because I have found it 
 to have been formerly disputed, whether one 
 felo de se did not forfeit his lands by the 
 custom of Kent. 
 
 For, in 55 Hen. 3 (Itin. Kane., rot. 34, in 
 dorso), in bar of an assize, it is pleaded, that 
 the father of the plaintiff 'fecit feloniam de se, 
 and that the custom of Kent is such, that if
 
 152 
 
 CUSTUMAL OF KENT. 
 
 Various in gavelkinde die, and be an in- Various 
 
 T ^T !?, en qauylekende murL et seit in- readings M. 
 lottelsedit. S. Line. Inn. 
 
 heritour of landes and tenements in 
 herite de terres e de tenemenz de 
 
 gavelkinde, that all his sons shall part 
 gauylekende, que touz ses fitz partent 
 
 that inheritance by equall portions. 
 eel heritage per ouele pordoun. 
 
 And if there be no heire male, let 
 Et si nul heir madle ne seit, seit 
 
 the partition be made between the 
 a Partition, la * * partye feit entre les * Particion. 
 
 females, even as between brothers. 
 females, sicome entres les freres. 
 
 And let the messuage also be departed 
 Et la mesuaye seit autreci 
 
 between them, but the harth for fire 
 entre eux departi, mes le astre 
 
 shall remain to the youngest sonne, 
 
 denwrra all pune, b f t The words 
 
 ou al punee 
 omitted. 
 
 b Oual 
 
 punee 
 
 omitted. 
 
 a man facial feloniam de se, his sons can 
 claim nothing in any land whereof he died 
 seized, nor his wife her dower, et petit quod 
 inquiratur per viros legates de comitatu. Pas- 
 tea totus comitatus recordatur, quod ille qui 
 facit feloniam de se, non forisfacit terram 
 suam. And thereupon, the plain tin has judg- 
 ment to recover his seisin.
 
 CUSTUMAL OF KENT. 153 
 
 Various or daughter : and be the value thereof Various 
 readings in m ^ punee : e fa value seit de ceo readings M. 
 Tottels edit. S. Line. Inn. 
 
 delivered to each of the parceners of 
 
 liure a chescun des parceners de 
 
 that heritage, from xl feete from. 
 a Piece del. eel heritage, a xl * pes de 
 
 that astre, if the tenement will so 
 eel astre, si le tenement le pent 
 
 suffer. And then let the eldest 
 
 b Frere suffrir. Et donkz le eyne b * * Frere 
 omitted. omitted, 
 
 brother have the first choice, and 
 
 frere eit la primere electioun, e 
 
 Ir 
 
 the others afterward, according to 
 les autres apres, per 
 
 their degree. Likewise, of houses 
 degree. Ensement, de mesons 
 
 which shall be found in such mes- 
 
 c En ses que serront trouets c f en tieus me- f En ses 
 mains, soient mesons, soi- 
 
 parties suages, let them be departed amongst ent parties 
 
 enter, &c. suages., seient departye entre ent er, &c. 
 
 the heires by equall portions, that 
 les heirs per ouele porcioun, ceo 
 
 is to weete, by foote if need be, 
 est asauoir, per peies sil est mistier ', 
 
 saving the couert of the astre, which 
 sauue le couert del astre, que 
 
 shall remain to the youngest son, or 
 remeynt al pune, ou al punee,
 
 154 CUSTUMAL OF KENT. 
 
 Various daughter, as is before said: so ne- Various 
 
 r ^T!, n , sicome il est auandist: issi queue- fadings M. 
 Tottel s edit. S. Line. Inn . 
 
 vertheless, that the youngest make 
 quedont, que le pune face 
 
 reasonable amends to his parceners 
 a Reasonable a * r enable gre a ces parceners * Resonable. 
 
 for the part which to them belongeth, 
 de la partye que a eux appent, 
 
 by the award of good men. And of 
 per agard de bone gentz. E des 
 
 the aforesaid tenements, whereof 
 auaunditz tenemenz, dont 
 
 one only suit was wont to be made 
 vn soule sute tant soulement soleit estre 
 
 before time, be there not by reason 
 feit auant, ne seit per la resoun 
 
 of the partition but one sole suite 
 b Partition, de la b partye fors vn soule sute 
 
 made, as it was before accustomed : 
 faite, sicome soleit auant: 
 
 but yet let all the parceners make 
 mes que touz les parceners facent 
 
 contribution to the parcener which 
 contributions, a celui que face la 
 
 maketh the suite for them. In like 
 sute pur eux. Ensement, 
 
 sort, let the goods of gauelkinde per- 
 seient les cliateus de gauylekendeys
 
 CUSTUMAL OF KENT. 
 
 155 
 
 Various 
 readings in 
 Tottel's edit. 
 
 a The words 
 e les filles 
 omitted. 
 
 b Partie. 
 
 c The words 
 per le seig- 
 neur omit- 
 ted. 
 
 sons be parted into three parts, after 
 parties en treis, apres 
 
 the funerals and the debts paied, if 
 le exequies e les dettes rendues, si 
 
 there be lawfull issue in life : so that 
 il y eit issue viulier en vye : issi que 
 
 the dead haue one part, and his 
 la mort eyt la vne partie, e les 
 
 lawfull sonnes and daughters an other 
 fitz, * * e les filles muliers lautre 
 
 part, and the wife the third part, 
 partie, et la f femme la tierce partie. 
 
 A -. . f ,n i P -IT . 
 
 And ii there be no lawiull issue in 
 
 * Et si nul issue mulier en 
 
 life, let the dead have the one halfe, 
 vie ne seit, eit la mort la meite, 
 
 and the wife alive the other halfe. 
 e la femme en vye lautre b meytie* 
 
 And if the heire, or heires, shall be 
 Et si le heir, ou lez heirs, seit, ou 
 
 under the age of fifteen yeers, let the 
 seyent dedeins le age de xv ans, seit la 
 
 nourtriture of them be committed 
 nouriture de eux bailie 
 
 by the lorde, to the next of the bloud 
 c \per le seig., al plus procheyn del 
 
 to whom the inheritance cannot 
 sank, a qui heritage ne pent 
 
 x 2 
 
 Various 
 readings M. 
 S. Line. Inn. 
 
 * The words 
 
 e les filles 
 
 omitted. 
 
 f Femme en 
 vie la tierce 
 par te. 
 
 The words 
 
 stars are 
 omitted. 
 
 The words 
 
 ted.
 
 156 CUSTUMAL OF KENT. 
 
 Various descend. So that the lorde take Various 
 
 readings in descendre. Issi que le seign. pur readings M. 
 Tottel s edit. B. Line. Inn. 
 
 nothing for the committing thereof. 
 a Bailment, le a bail rein ne prengne. 
 
 And let not the heire be married by 
 b Son. Et quil ne seit marie per b * * Son. 
 
 the lorde, but by his owne will, 
 le seign., mes per sa volunte demeine, 
 
 and by the aduise of his friends, if 
 et per le conseil de ces amys, sil 
 
 he will. And when such heire, or 
 veut Et quant eel heir, ou 
 
 heires, shall come to the full age of 
 ceux heirs, sont de plener age de 
 
 fifteen yeers, let their lands and 
 xv auns, seient a eux lour terres, e 
 
 tenements be delivered unto them, 
 lour tenemenz liures, ensemble- 
 together with their goods, and -with 
 ment oue lour chateaux, et one 
 
 profits 
 the emprovments of the same lands, 
 
 c Approwe- l es t enprouemenz de celes terres, { Approwe- 
 
 ments. . . , , . n , mentz. 
 
 remaining above then: reasonable 
 
 d Raisonable. Outre J r enable SUSti- J Resonable. 
 
 sustenance : of the which profits 
 nance: de quel enprouement
 
 CUSTUMAL OF KENT. 
 
 157 
 
 Various 
 readings in 
 Tottel's edit. 
 
 a Lui avera 
 en noriture, 
 au qui le 
 . seygniour et 
 ses heyres 
 eel nouriture 
 avera baillie. 
 
 b Averont 
 passe. 
 
 c Doner ou 
 vender. 
 
 d Lour. 
 
 and goods, let him be bounde to 
 e chateux, seit tenu a 
 
 make aunswere which had the educa- 
 respondre celui qui de a * luy auera 
 
 tion of the heire, or els the lord, or 
 la noriture, ou le seigneur, ou 
 
 his heires, which committed the same 
 ses heires, que eel noriture auera 
 
 education. And this is to be under- 
 baitte. Et ceo fet a sauoir, 
 
 stood, that from such time as those 
 que del houre que ceux 
 
 heires in gavelkind, be of, or have 
 heirs gauylekende, b f seient, ou 
 
 passed, the age of fifteen yeeres, it 
 ount passe, le age de xv auns, 
 
 is lawfull for them, their lands or 
 list a eux, lour terres ou 
 
 tenements to give and sell at their 
 tenement J doner e vendre a 
 
 pleasure: saving the services to the 
 lour volunte : sauues las seruices au 
 
 chief lordes as is before said. 
 ^chefz seignorages com il est deuant dit. 
 
 And if any such tenant in gauelkind 
 Et si nul tiel tenant en gauylekend 
 
 die, and have a wife that overliveth 
 meurty e eit femme que suruiue, 
 
 Various 
 readings M. 
 S. Line. Inn. 
 
 * Lui avera 
 en noreture 
 onke seig- 
 nour et ses 
 heirs cele 
 noreture 
 avera bailie. 
 
 f Averont 
 passe. 
 
 J Doner ou 
 vendre. 
 
 Lour.
 
 158 CUSTUMAL OF KENT. 
 
 Various Mm, let that wife by and by be Various 
 readings in ^ ^ f emmg meintenant readings M. 
 
 lottelsedit. * a. Line. Inn. 
 
 endowed (of the one halfe of the tene- 
 douue de la meite des tene- 
 
 ments whereof her husband died 
 mentz dont son baroun morust 
 
 vested and seised) by the heires, if 
 
 a The words a * vestu e seisi, per les heirs, sil * The words 
 vestu e ,-, -, c i ,-, i -, .n vestu e 
 
 omitted. the 7 be of a e > or b y the lords > lf omitted. 
 
 seient de age, * ou per les seigneures, si The words 
 T i . . between the 
 
 the heires be not 01 age : so that s t ar s omit- 
 
 les heirs ne seient pas de age : * issi que ted - 
 
 she may have the one halfe moitie of 
 ele eyt la meite de 
 
 those lands and tenements, to holde 
 
 b Et tiendra celes terres e tenemenz, b a tener 
 
 tant come 
 
 ele se tient so long as she keepeth her a widow, 
 
 veufue ou j an f com e \ e se tyent veue, 
 
 desenfantee, 
 
 de enfant soit or shall be attainted of childbirth, 
 
 ou de enfanter seit atteint, 
 
 after the ancient usage : that is to 
 per le aundenne vsage: ceo est 
 
 say, that if when she is delivered of 
 asauoir,- que quant ele enfaunte, e 
 
 childe, the infant be heard crie, 
 lenfant seit oy crier, 
 
 and that the hue and crie be raised, and 
 c Et le crie c f e <l ue ^ hu e le cry seit leue, ( Et la crie
 
 CUSTUMAL OF KENT. 159 
 
 Various the countrie be assembled and have Various 
 
 readings in & fe & ensemble - e event T ^^\ M ' 
 Totters edit. * S. Line. Inn. 
 
 soit leve, et the view of the childe so borne, and of soit leve, et 
 
 the mother, then let her lose her dowre 
 Za mere, adonks perde son dowere 
 
 wholly, and otherwise not, so long as 
 enter ement, e autrement nyent, 
 
 she holdeth her a widow: whereof it is 
 tant come ele se tient veue : dont il est 
 
 said hi Kentish: " he that doth wende 
 
 a Sey is wed- dist en Kenteis : a * " j~e J>at hip penbe * Seye is 
 ne, sey is le- . wedne, seye 
 
 vedne. her,lethimlendeher."Andtheyclaime yslenedy. 
 
 j*e, hip lenbe." E clament 
 
 also, that if a man take a wife which 
 auxi, que homme que prent femme que 
 
 hath inheritance of gauelkind, and 
 eit heritage de gauylekend, e 
 
 the wife dieth before him, let the 
 la femme murge auant luy, eit le 
 
 husband have the one halfe of those 
 baroun le meite de celes 
 
 lands and tenements whereof she 
 terres et tenemenz tant come il 
 
 died seised, so long as he holdeth him 
 
 b Veufuer. se tient b veuers (dont c f il morust t Ele. 
 C E1. 
 
 a widower, without doing any strippe, 
 
 seisei), saunz estrepement,
 
 160 CUSTUMAL OF KENT. 
 
 Various or waste, or banishment, whether Various 
 
 S^T!?* ou wast ou exile fere, le quel kil fadings M. 
 Tottel s edit. * S. Line. Inn. 
 
 there were issue between them or no : 
 y eit heir entre eux ou noun: 
 
 and if he take another wife, let him 
 et sil prent femme, trestout 
 
 loose all. And if any tenement of 
 perde. Et si nul tenement de 
 
 gauelkinde do escheate (and that 
 gauylekend eschete (et ceo 
 
 escheate be to any lorde which 
 eschete seit a nul seigneur que 
 
 holdeth by fee of hawberke, or by 
 tiene per fee de hawberk, ou per 
 
 cessavit 
 serieancie) by death, or by gauelate 
 
 * The words seriauncye) * per mort, ou per gaue- 
 
 between the 
 
 stars omit- as is hereafter saide, or be to him 
 
 ted - late sicome il est suthdite, * ou li seit 
 
 given up 
 
 rend red by his tenaunt, which before 
 rendu de son tenant, que de li 
 
 held it of him by quite claime thereof 
 auant le tyntper quite clamaunce de ceo 
 
 made, or if his escheate be by gaue- 
 a Gavelet. fete, ou seit sa eschete per 8 * gaue- * Gavtlete. 
 
 late as is hereafter saide, let this 
 late sicome il est de suthdit, remeyne
 
 CUSTUMAL OF KENT. 161 
 
 Various land remain to the heires vnpart- Various 
 readings in cd& ferre ^ he j res a * i mpart .readings M. 
 Tottel s edit. o. Line. Inn . 
 
 a Non port- able. And this is to be vnderstood, * Noun 
 ables. 77 TTT, / . .7 portables. 
 
 able. Lt ceo jet asauoir, La K 
 
 where the tenant so rendring, doth 
 ou le tenant ensi rendant, nule 
 
 reteine no seruice to himselfe, but 
 
 The words seruice retent deuers sey, * sauuet The words 
 between the between the 
 
 stars omit- saueth neverthelesse to the other stars omit- 
 
 nequedent as autres ' 
 
 lordes, their fees, fermes, and the 
 seigneurages, fees, fermes, e les 
 
 rents wherewith the aforesaid tene- 
 rentes dont les auant diz tene- 
 
 ments of gavelkind (so rendred) 
 menz de gauylekende ensi rendus 
 
 were before charged, by him, or 
 auant furent charges, per ceux, ou per 
 
 them, which might charge them. 
 celuy, que le charger poent, ou poeyt* 
 
 And they claime also, that if 
 E clament auxi, que si nul 
 
 withhold 
 
 any tenant in gauelkinde reteine his 
 tenant en gauylekende reteine sa 
 
 rent, and his seruices of the tenement 
 rent, e son seruice del tenement
 
 162 CUSTUMAL OF KENT. 
 
 Various which he holdeth of his lord, let the Various 
 
 ^ tient de SOH Sei 9 neur ' 1 mr 9 e le 
 lord seeke by the award of his court., 
 seign. per agard de sa court, 
 
 from three weekes to three weekes, to 
 de treys semeynes en treys semeynes 
 
 finde some distresse upon that tene- 
 truue destresse sur eel tene- 
 
 ment, vntill the fourth court, alwaies 
 ment, tant que a la quart court, a totefet 
 
 with witnesses: and if within that time, 
 per tesmoynage: et si dedens eel temps, 
 
 he can finde no distresse in that tene- 
 ne trusse destresse en eel tene- 
 ment, whereby he may have iustice 
 ment, per queux il puisse son te- 
 
 of his tenant, then, at the fourth 
 nant iustiser, done, a la quart 
 
 court, let it be awarded, that he shall 
 court, seit agard, quil pregne 
 
 take that tenement into his hande 
 eel tenement en sa mein 
 
 in the name of a distresse, as if it were 
 en noum de destresse, ausi come 
 
 an oxe, or a cow, and let him keepe it 
 boef, ou vache, e le tiene 
 
 a yeere and a day in his hand 
 vn an e vn iour en sa mein
 
 CUSTUMAL OF KENT. 163 
 
 Various without manuring it : within which Various 
 readings m a * sance me y n ouerir : dens quel readings M - 
 Tottel s edit. S. Line. Inn. 
 
 "Sansmein- terme, if the tenaunt come, and pay *Sanzmain- 
 terme, si le tenant vent, e rend nour * 
 
 his arrerages, and make reasonable 
 
 b Face rai- ses arrerages, e b feit rendbles 
 
 sonables 
 
 amendes de amends for the withholding, then let 
 
 la dette. amendes f de la detenue, a done t D e la 
 
 dette. 
 him have and enjoy his tenement as 
 
 eit, e ioise son tenement sicom 
 
 his auncestors and he before held it. 
 c Les teig- ses auncestors c J e ly 'auant le tyndront. \ Les te- 
 
 And if he do not come before the yeere 
 d Dedeyns. Et sil ne vent d deuant Ian Dedeins. 
 
 and the day past, then let the lord 
 e Eyt. % e le iour passe, done e || auge le seigneur || Aille. 
 
 go to the next countie court with the 
 
 f Courte al prochein l counte suiant oue 
 (but falsely.) 
 
 witnesses of his owne court, and 
 
 tesmoynage de sa court, e face la 
 
 pronounce there this processe to 
 pronuncier eel proces pur 
 
 have further witnesse. And by the 
 tesmoynage auer. Et per 
 
 award of his court (after that countie 
 agard de sa court, apres ceo 
 
 court holden), he shall enter, and 
 
 Court. g counte tenue, entra, e 
 
 Y 2
 
 164 CUSTUMAL OF KENT. 
 
 Various manure in those lands and tene- Various 
 readings in a * meynouem en ce l es terres e tene readings ,M. 
 Tottel'sedit. y S. Line. Inn. 
 
 a Mainera. ments as in his own demeanes. And if * Meignera. 
 menz sicome en son demeyne. Et si 
 
 the tenant come afterward, and will 
 le tenant vent apres, e voitte 
 
 rehave his tenements, and hold them 
 ces tenemenz reauer, e tener si- 
 
 as he did before, let him make agree- 
 come il fist deuaunt, face gree 
 
 ment with the lord, according as it is 
 al seigneur, sicome il est 
 
 anciently said : 
 auncienement dist : 
 
 * " Neghe j-ype j-elbe, anb neghe j-yp 
 
 gelbe : 
 
 Anb piji ponb poji pe pejie, eja he 
 bicome healbep.." 
 
 * z. e. Hath he not since anything given, 
 and hath he not since anything paid ? then 
 let him pay five pounds for his were, or 
 amercement, before he become tenant or 
 holder again. 
 
 But some copies have the first verse thus, 
 Nigon sithe selde, and nigon sithe gelde, i. e. 
 Let him nine times pay, and nine times repay. 
 (Lamb. Peramb. 553.)
 
 CUSTUMAL OF KENT. 165 
 
 Various Also they claim, that no man ought Various 
 
 readings in a* ^ -j c l eyment qm nu l homme deit readings M. 
 
 Tottels edit. S . Line. Inn. 
 
 a The words to make oath upon a book (neither by * The words 
 
 aussi il cley- ^. . aussi il cley- 
 
 ment, omit- serment sur liure fere, per ment omit _ 
 
 ted, and the ^ -i i -i * e d> an d the 
 
 sentence distresse, nor by the power 01 the lord, sentence 
 
 runs thus, destress, ne per poer de seigneur, ws,Nepur 
 
 Neperpueur poure, &c., 
 
 delseigniour nor o f ^ bailife) against his will, asinTotteTs 
 
 ne des bail- , 7 7 . -. edition. 
 
 lifesencoun- ne de oaylif encountre sa volume, 
 
 tre sa volan- 
 
 tesansbriefe without the writ of the King (unless 
 
 leRoynesoit saunz b re f fa Roy (sinon 
 
 __ rtrtw *f t/ \ 
 
 mis a ser- 
 
 ment sinon i t be f or f ea } ty to b 
 
 pour fealtie, * . * \ 
 
 &c. P er foaute jere a son seigneur), 
 
 but only before the coroner, or other 
 meske per devaunt coronner, ou auter 
 
 minister of the King, as hath royal 
 
 The words minister le Roy, * qui real poer eyont The words 
 between the between the 
 
 stars omit- power to enquire of trespass commit- stars omit- 
 
 de enquirer de trespas fet en- te<J - 
 
 Tottel's edition reads these verses, 
 Neighe sithe yeld, neighe sithe gelt, 
 And yef \i. e. give] you for the were, then 
 is he holder. 
 
 And the M.S. of Lincoln's Inn still differently, 
 
 Nenghe syche zelde, venge site geld, 
 
 And xis pund for the were, yen is he heldere.
 
 166 CUSTUMAL OF KENT. 
 
 Various ted against the crown of our lord the Various 
 
 readings in countre i a coronne nostre seigneur le readings M. 
 1 ottel s edit. o. Line. Inn. 
 
 King. And they claime also, that 
 Roy* E cleyment auxi, que 
 
 every Kentish man may essoin an- 
 
 *Aseigniour checun Kenteys put autre assonier, a * * Aseignour 
 added. . added, 
 
 other, either in the Kings court, or 
 
 en la court le Roy, en 
 
 in the county, or in the hundreth, or in 
 countej en hundreth, e en 
 
 the court of his lord, where essoine 
 la court son seigneur, la ou assoigne 
 
 lieth, and that as well in the case of 
 gist, aussi bien de commune sute 
 
 commune sute as of plea. Moreover, 
 b De common come b f de play. Estre, f De com- 
 
 plee. -i-i T j -i n mune P lea - 
 
 they claim by an especial deed of 
 
 ceo il cleyment per especial fet le 
 
 King Henrie the Third, father of King 
 Roy Henrie, pere le Roy 
 
 Edward which now is (whom God 
 
 The words Edward * que ore est, que Dieu The words 
 between the N , ~ , -, . , between the 
 
 stars omit- sa ve), that of the tenements which are stars omit . 
 
 ted. garde, * que de tenements que sont ted. 
 
 holden in gavelkinde there shall nobat- 
 tenus en gauylekende ne seit prise 
 
 tail be joined, nor grand assise taken 
 c The words c J battaille, ne graund assise per + The words
 
 CUSTUMAL OF KENT. 167 
 
 Various by xii knights, as it is used in other Various 
 
 readings in ^i chiuallers. sicome aillours est prise fadings M. 
 Tottels edit. S. Line. Inn . 
 
 battaille ne places of the realme, that is to weet, battaille ne 
 omitted. , . omitted. 
 
 en le reaume, ceo est a savoir, 
 
 where the tenant and demandant hold 
 la ou tenant e le demaundant tenent 
 
 by gavelkinde : but in the place of 
 per gauylekende : mes en lu de 
 
 these graund assises, let juries be taken 
 ces graundes assises, seient prises jurees 
 
 by xii men being tenants in gavelkind: 
 per xii homes tenantz en gauylekend: 
 
 so that four tenants of gavelkinde 
 
 * issi que quatre tenantz de gauilekend The words 
 
 between the 
 
 choose xii tenants of gavelkinde to be stars omit- 
 elisent xii tenantz de gauylekende 
 
 jurors. And the charter of the King 
 iurours, E le chartre le Roy 
 
 of this especialtie is in the custody 
 de ceste espedaute est en la garde 
 
 of Sir John of Norwood, the day of 
 a Norward. Sire Johan de a Norwode, le jour de 
 
 St. Alphey, in Canterburie, the yeare 
 
 b Elphe. S. b f Elphegh, en Canterbyre, c J le an \ Elphe. 
 
 c Lan du Tr . t Lan le 
 
 reigneleroy OI King Edward, the SOnne of King reigneleroy 
 
 Edwardxxi. fe R oy Edward, k fiz le Roy Edwardxxi.
 
 168 CUSTUMAL OF KENT. 
 
 Various Henrie, the xxi. * These be the Various 
 
 readings in Henrie. xxi. Ces sont Us aaings M. 
 
 Tottel s edit. S. Line. Inn. 
 
 usages of gavelkind, and of gavel- 
 usages de gauylekend, e de gauyle- 
 
 kinde men in Kent, which were be- 
 kendeys en Kent, que furent de- 
 fore the Conquest, and at the Con- 
 uaunt le Conquest, e en le Con- 
 
 quest, and ever since till now. 
 quest, e totes houres ieskes en ca. 
 
 * Neither the M.S. of Lincoln's Inn, nor 
 Tottel's edition, have this conclusion, and it 
 is repugnant to the last privilege, which is 
 claimed under the charter of King Henry 3, 
 [rot. claus. 16, m. 14.]
 
 169 
 
 SELECTION 
 
 OP 
 
 PRECEDENTS OF FEOFFMENTS BY INFANT 
 HEIRS IN GAVELKIND (a). 
 
 No. I. 
 
 FEOFFMENT BY AN INFANT HEIE TO A PURCHASER 
 IN FEE, WITH POWER OF ATTORNEY TO RECEIVE 
 SEISIN. (VARIATION, WHERE HIS MOTHER CON- 
 CURS TO EXTINGUISH HER DOWER.) 
 
 THIS INDENTURE, made the day of , Date. 
 18 , BETWEEN (Feoffor) of, &c., of the first part, Parties. 
 [(Feoff or 1 s mother) of, &c., widow, of the second 
 part,] (Purchaser) of, &c., of the third part, and 
 (Attorney to receive seisin) of, &c., of the fourth 
 part. 
 
 (a) Inserted by the Editor.
 
 170 PRECEDENTS OF FEOFFMENTS 
 
 Recital of WHEREAS (Feoffor's father) late of, &c., died 
 death* intestate on or about the day of , 18 , 
 seized in fee of the hereditaments hereinafter 
 described, and intended to be hereby granted 
 and enfeoffed, leaving the said [(Feoffor's mother) 
 his widow, and] (Feoffor) his only son and heir- 
 at-law and in gavelkind, him surviving. 
 That feoffor AND WHEREAS the said (Feoffor} is an infant, 
 
 f , \ M / 
 
 but he has attained the age of fifteen years and 
 upwards, he having been baptized at , on the 
 day of , 18 . 
 Of custom AND WHEREAS the said hereditaments are 
 
 authorizing situate in ^ County of Kent, and are descend- 
 
 the convey- J 
 
 ance by ible according to the custom of gavelkind ; and 
 
 by the said custom, it is lawful for an heir, having 
 attained the age of fifteen years (6), to enter upon 
 the lands which he takes by descent (c), and 
 there by delivery of seisin thereof, to convey the 
 same as fully and effectually as if of the age of 
 twenty-one years. 
 
 Of contract AND WHEREAS the said (Feoffor) has con- 
 tracted with the said (Purchaser), for the ab- 
 solute sale to him of the said hereditaments with 
 their appurtenances, free from all incumbrances 
 (except land tax and quit rents, if any, payable 
 
 (5) This custom extends to a female heir. See ante, 
 p. 117. 
 
 (c) See ante, p. 134, and note (o).
 
 BY INFANT HEIRS IN GAVELKIND. 171 
 
 in respect thereof), for the sum of . [And the 
 said (Feoffors mother} being entitled to dower 
 out of the said hereditaments and premises, has 
 agreed to concur in these presents for the pur- 
 pose of extinguishing the same.] 
 
 Now THIS INDENTURE WITNESSETH, that in Testatum. 
 pursuance of the said contract, and in considera- Considera- 
 tion of the sum of sterling, paid by the said tlon * 
 (Purchaser} to the said (Feoffor) upon or before 
 the execution of these presents, the receipt Receipt, 
 whereof the said (Feoffor) doth hereby acknow- 
 ledge (d), and therefrom doth hereby release the 
 said (Purchaser), his heirs, executors, adminis- 
 trators, and assigns. HE, the said (Feoffor), HATH Conveying 
 given, . granted, and enfeoffed, and by these 
 presents DOTH confirm, [AND the said (Feoffors 
 mother) for the purpose of extinguishing her right 
 of dower in the said hereditaments, DOTH here- 
 by release and quit claim,] unto the said (Pur- 
 chaser) and his heirs, ALL &c., [parcels.] AND Parcels, 
 all rights, members, and appurtenances, to the 
 same belonging, or reputed to belong. AND all All-estate 
 the estate, right, title, and interest, both legal 
 and equitable, of him [them] the said (Feoffor) 
 
 (<f) An infant being entitled by the custom, to enfeoff his 
 lands on attaining the age of fifteen years, it seems neces- 
 sarily to follow, that he may receive and give a valid dis- 
 charge for the purchase money. (See the opinion of Lord 
 Kenyon, cited in Crewe v. Dicken, 4 Ves. 99.) 
 
 z 2
 
 172 PRECEDENTS OF FEOFFMENTS 
 
 All-deeds [and (Feoffor's mother) respectively] therein. To- 
 
 clause. GETHER with all deeds, and writings, relating to 
 
 the title thereof, now in the custody or power of 
 
 the said (Feoff or) [and (Feoffors mother), or either 
 
 of them,] or which he [they or either of them] 
 
 can obtain without suit at law, or in equity. 
 
 Habendum, To HAVE AND TO HOLD the said hereditaments 
 
 ' gg C r and premises hereby granted and enfeoffed with 
 
 their appurtenances, UNTO, and to the use of the 
 
 said (Purchaser\ his heirs and assigns for ever. 
 
 Declaration AND the said (Purchaser) hereby declares, that 
 
 widow^f * n case ^ e s ^ a ^ l eave a widow, she shall not be 
 dower. entitled to dower out of the said hereditaments 
 and premises (e). 
 
 AND the said (Purchaser) DOTH by these pre- 
 
 Letterofat- sents, nominate and appoint the said (Attorney 
 
 ceive^sebln ^ receive seisin), his attorney, for him, and in his 
 
 name, to accept, and take possession and seisin, 
 
 of all the said hereditaments and premises hereby 
 
 granted and enfeoffed, or some part thereof, in 
 
 the name of the whole, from the said (Feoff or). 
 
 To HOLD according to the tenor and effect of 
 
 Hiistes- these presents (/). IN WITNESS, &c. 
 tibus. 
 
 (e) No warranty can be annexed to a feoffment by an 
 infant of gavelkind lands. See ante, p. 133. 
 
 (f) If this clause be inserted, the feoffment will require 
 a deed stamp in addition to the ad valorem duty ; but the 
 purchaser may of course receive seisin in person.
 
 BY INFANT HEIRS IN GAVELKIND. 173 
 
 MEMORANDUM OF LIVERY OF SEISIN TO BE 
 INDORSED ON THE PRECEDING DEED OF FEOFF- 
 MENT. (VARIATION, WHERE THE PREMISES ARE 
 LET.) (g) 
 
 BE IT REMEMBERED that on the day of the Memoran- 
 date of the within written indenture (or any V e 
 other day as the case may be) (h), the within named sin, &c. 
 (Feoffor) in his proper person (i), entered into 
 and upon the within described hereditaments 
 and premises, and [if the premises are let, omit 
 " and", and add, " with the consent of the within 
 named the tenant [or, tenants] in possession 
 (testified by his [or, their] signing this memoran- 
 dum (j) without prejudice to his tenancy [or, their 
 respective tenancies),] and took peaceable posses- 
 sion and seisin of the said hereditaments and pre- 
 mises, and with the like consent"] delivered 
 peaceable possession and seisin thereof, unto the 
 
 (g) As to how livery of seisin is usually made, see 
 Woodf. Landl. & T. p. 126, et seq., 7th edit. 
 
 (h) The livery of seisin need not be made on the day of 
 the date of the deed. (See Roe d. Heale v. Rashleigh, 
 3 Barn. & Aid. 156.) 
 
 (z) See ante, p. 118. 
 
 (/) Where the lands are in the occupation of tenants, Lessee should 
 whether holding by lease or tenancy from year to year, it subscri ^e me- 
 seems to be a prudent precaution, to make them subscribe 
 the memorandum of livery, in order to prevent any question 
 as to their assent having been obtained. (4 Jarm. Convey, 
 by Sweet, p. 69.)
 
 174 PRECEDENTS OF FEOFFMENTS, ETC. 
 
 within named (Attorney), as Attorney for the with- 
 in named (Purchaser], (or, (Purchaser) in person, 
 Separate as the case may be.) [Where part of the premises 
 
 rt; 1S ~ ^ * n ^ e OCGU P a ^ on f one tenant, and part of ano- 
 ther, add these words, " A separate seisin having 
 been delivered of the hereditaments and pre- 
 mises in the tenure or occupation of (one tenant), 
 and of the hereditaments and premises in the 
 tenure or occupation of (the other tenant) respec- 
 tively " (&).] To HOLD unto the said (Purchaser), 
 and his heirs, according to the tenor and effect 
 of the within written indenture. And that such 
 seisin was accepted by the said (Attorney) [or, 
 (Purchaser)] accordingly in our presence. AND 
 that on the same day, the within mentioned sum 
 of , was paid into the proper hands of the 
 said (Feoff or) in our presence (/). 
 
 [TENANTS NAMES.] (WITNESSES.) 
 
 (k) See Woodfall's Landl. & Tenant, p. 127, 7th edit. 
 
 (7) It is usual to add to the memorandum of livery of 
 seisin, an attestation that the purchase money has been paid 
 to the infant, instead of indorsing a separate receipt for it.
 
 175 
 
 No. II. 
 
 FEOFFMENT BY AN INFANT HEIR OF HIS UNDI- 
 VIDED MOIETY OF PREMISES TO A PURCHASER 
 IN FEE. 
 
 THIS INDENTURE, made the day of, Date. 
 18 , BETWEEN (Feoffor) of, &c., of the one Parties. 
 part, and (Purchaser) of, &c., of the other part. 
 
 WHEREAS (Feoffor 's Father) late of, &c., died Recital of 
 
 intestate on or about the day of , 18 , 
 
 seized in fee of the lands and hereditaments 
 hereinafter described, which upon his decease, 
 descended to the said (Feoffor}, and , as his 
 only sons and coheirs by the custom of gavelkind. 
 
 AND WHEREAS by the said Custom, heirs in Of custom 
 gavelkind having attained the age of fifteen years, 
 
 are enabled to enter upon the lands so descended ance by 
 to them, and there by delivery of seisin thereof, 
 to convey the same as fully and effectually as if 
 of the age of twenty-one years. 
 
 AND WHEREAS the said (Feoffor) is above the Of feoffbr's, 
 said age of fifteen years, that is to say, of the 
 age of years, or thereabouts, he having been 
 baptized at , on the day of , 18 .
 
 176 
 
 PRECEDENTS OF FEOFFMENTS 
 
 Of contract 
 to purchase. 
 
 Testatum. 
 
 That in pur- 
 suance ofthe 
 said custom, 
 
 the heir 
 grants and 
 enfeoffs. 
 
 Parcels. 
 
 All-estate 
 clause. 
 
 AND WHEREAS the said (Purchaser) has con- 
 tracted with the said (Feoff or), for the purchase 
 of his undivided moiety or equal half part of and 
 in the lands and hereditaments hereinafter des- 
 cribed, free from incumbrances (except land-tax 
 and quit-rents, if any), for the sum of . 
 
 Now THIS INDENTURE WITNESSETH, that in 
 pursuance of the said custom, and in considera- 
 tion of the sum of sterling, paid by the said 
 (Purchaser) to the said (Feoff or) upon or before the 
 execution of these presents, the receipt whereof 
 the said (Feoffor) doth hereby acknowledge, and 
 therefrom doth hereby release the said (Pur- 
 chaser), his heirs, executors, administrators, and 
 assigns. HE, the said (Feoffor), HATH given, 
 granted, and enfeoffed, and by these presents 
 DOTH confirm, unto the said (Purchaser) and his 
 heirs, ALL THAT the undivided moiety or equal 
 half part or share, and all other the share and 
 interest of him the said (Feoffor} of and in, ALL 
 THAT, &c., [describe parcels, .] And of and in the 
 rights, members, and appurtenances, to the same 
 belonging, or reputed to belong. AND the re- 
 version and reversions, remainder and remain- 
 ders, yearly, and other rents, issues, and profits 
 of the said moiety and premises. AND all the 
 estate, right, title, and interest, of him the said 
 (Feoffor) of and in the said moiety and premises. 
 AND all deeds, and writings, relating to the title
 
 BY INFANT HEIRS IN GAVELKIND. 177 
 
 thereof, now in the custody or power of the All-deeds 
 said (Feoff or), or which he can obtain without clause - 
 suit at law, or in equity. 
 
 To HAVE AND TO HOLD the said undivided Habendum 
 moiety or equal half part or share, and other the Jj e 
 
 share and interest expressed to be hereby granted ser in fee. 
 and enfeoffed, of and in the said lands and he- 
 reditaments with their appurtenances, UNTO and 
 to the use of the said (Purchaser), his heirs and 
 
 assigns for ever. IN WITNESS, &c. Hiistesti- 
 
 bus. 
 
 MEMORANDUM OF LIVERY OF SEISIN AND AT- 
 TESTATION TO BE INDORSED ON THE PRECEDING 
 DEED. 
 
 MEMORANDUM, that on the day and year first Memoran- 
 
 within written, the within named (Feoffor) in dumpflivery 
 
 ' ,, of seism, &c. 
 
 his proper person, entered upon the within des- 
 cribed lands and hereditaments, and delivered 
 peaceable possession and seisin of his within 
 mentioned undivided moiety or half part thereof, 
 unto the within named (Purchaser), in his own 
 proper person ; To HOLD unto the said (Purchaser), 
 and his heirs, according to the tenor and effect 
 of the within written indenture, in our presence. 
 And that on the same day, the within mentioned 
 sum of , was paid into the proper hands of 
 
 A A
 
 178 PRECEDENTS OF FEOFFMENTS, ETC. 
 
 the said (Feoffor). And thereupon he signed, 
 sealed, and delivered, as his act and deed, the 
 within written indenture, in our presence. 
 
 (SUBSCRIPTION OF WITNESSES, &c.)
 
 179 
 
 No. III. 
 
 FEOFFMENT BY AN INFANT HEIR OF HIS UNDI- 
 VIDED THIRD PART OF PREMISES TO HIS 
 TWO BROTHERS WHO ARE OF AGE, AND WHO 
 BY THE SAME DEED CONVEY THE ENTIRETY OF 
 THE SAID PREMISES TO A TRUSTEE, TO SUCH 
 USES AS THEY SHALL APPOINT; THE MOTHER 
 CONCURRING TO RELEASE HER DOWER (m). 
 
 THIS INDENTURE, made the day of , Date. 
 18 , BETWEEN A. B., of, &c., of the first part, Parties. 
 C. D., of, &c., and E. F., of, &c., of the second 
 part, G. H., of, &c., widow, of the third part, 
 and (Trustee}, of, &c., of the fourth part. 
 
 WHEREAS (the Father) died intestate on or Recital of 
 
 about the day of , 18, seized in fee of deathof an ~ 
 
 . . cestor. 
 
 the hereditaments hereinafter described, and in- 
 tended to be hereby granted and enfeoffed, 
 leaving the said G. H., his widow, and the said 
 
 (m) This deed will require a 35s. stamp in addition to the 
 ad valorem duty. 
 
 A A 2
 
 180 
 
 PRECEDENTS OF FEOFFMENTS 
 
 Of contract 
 to purchase. 
 
 Of agree- 
 ment to con- 
 vey to uses. 
 
 That the 
 mother be- 
 ing entitled 
 to dower 
 consents to 
 release the 
 same. 
 
 Testatum. 
 
 Considera- 
 tion. 
 
 Receipt. 
 
 A. B., C. D., and E. F., Ms three only sons and 
 coheirs in gavelkind him surviving. (Recite, that 
 A. B. is an infant, and that the premises are in 
 Kent, ut ante, No. 1.) 
 
 AND WHEREAS the said C. D., and E. F., have 
 contracted with the said A. B., for the purchase 
 of his undivided third part or share, of and in 
 the hereditaments hereinafter described, free 
 from incumbrances, for the sum of . 
 
 AND WHEREAS the said A. B., has at the re- 
 quest of the said C. D., and E. F., agreed to 
 concur with them in conveying the entirety of 
 the said hereditaments, to the uses hereinafter 
 declared concerning the same. AND the said 
 G. H. being entitled to dower out of the said 
 hereditaments, has, at the Request of the said 
 A. B., C. D., and E. F., consented to release the 
 same from all manner of dower and freebench 
 of her the said G. H. therein. 
 
 NOW THIS INDENTURE WITNESSETH, that in pUT- 
 
 suance of the said contract, and in consideration 
 of the sum of sterling to the said A. B., 
 paid by the said C. D., and E. F., upon or before 
 the execution of these presents, in equal shares 
 and proportions, in full for the absolute purchase 
 of the fee simple and inheritance of his undi- 
 vided third part or share in the hereditaments 
 hereby granted and enfeoffed, the receipt whereof 
 the said A. B. dotli hereby acknowledge, HE,
 
 BY INFANT HEIRS IN GAVELKIND. 181 
 
 the said A. B., HATH granted and enfeoffed, and Conveying 
 by these presents DOTH confirm; AND the said words - 
 C. D., and E. F., Do, and each of them DOTH 
 hereby grant and convey; AND the said G. H., 
 for the purpose of releasing her right of dower 
 in the said hereditaments, DOTH hereby release 
 and quit claim, unto the said (Trustee) and his 
 heirs, ALL &c. (parcels.} AND all rights, mem- Parcels, 
 bers, and appurtenances, to the same belonging, General 
 or reputed to belong. AND all the estate, right, words- 
 title, and interest, both legal and equitable, of 
 them the said A. B., C. D., E. F., and G. H., 
 respectively therein. 
 
 To HAVE AND TO HOLD the said hereditaments Habendum. 
 and premises expressed to be hereby granted 
 and enfeoffed with their appurtenances, UNTO the 
 said (Trustee) , and his heirs, To SUCH USES, upon 
 such trusts, and in such manner, as the said Uses to bar 
 C. D., and E. F., shall jointly at any time or dower ' 
 times by deed or deeds appoint ; AND in default 
 of, and until such appointment, As to one full 
 equal undivided moiety or half part (the whole 
 into two equal parts or shares to be divided) of 
 and in the said hereditaments and premises, or 
 such of them as shall not be otherwise jointly ap- 
 pointed in manner aforesaid; To SUCH USES, 
 upon such trusts, and in such manner, as the 
 said C. D. shall at any time or times by deed 
 or deeds appoint ; AND in default of, and until
 
 182 PRECEDENTS OF FEOFFMENTS 
 
 such appointment, To THE USE of the said C. D. 
 and his assigns during his life, without impeach- 
 ment of waste; after AND the determination of 
 that estate by any means in his lifetime, To THE 
 USE of the said (Trustee) his executors and ad- 
 ministrators during the life of, and IN TKUST for 
 the said C. D. and his assigns; AND after the de- 
 termination of the said hereinbefore lastly limited 
 estate, To THE USE of the said C. D., his heirs 
 and assigns for ever. AND as to the remaining 
 one full equal undivided moiety or half part 
 thereof; To SUCH USES, upon such trusts, and in 
 such manner, as the said E. F. shall at any time 
 or times by deed or deeds appoint; AND in de- 
 fault of, and until such appointment, To THE 
 USE of the said E. F. and his assigns during his 
 life, without impeachment of waste; AND after the 
 determination of that estate by any means in his 
 lifetime, To THE USE of the said (Trustee) his 
 executors and administrators during the life of, 
 and IN TRUST for the said E. F. and his assigns; 
 AND after the determination of the -said herein- 
 before lastly limited estate, To THE USE of the 
 Hiis testi- said E. F., his heirs and assigns for ever. IN 
 
 buS> WITNESS, &C.
 
 BY INFANT HEIRS IN GAVELKIND. 183 
 
 MEMORANDUM OF LIVERY OF SEISIN AND AT- 
 TESTATION TO BE ENDORSED ON THE PRECEDING 
 FEOFFMENT. 
 
 MEMORANDUM, that on the day and year first Memoran- 
 within written, the within named (Feo/or) in his 
 proper person entered upon the within described 
 hereditaments, and delivered peaceable possession 
 and seisin of his within mentioned undivided 
 third part or share thereof unto the within named 
 (Trustee). To HOLD unto the said (Trustee) and 
 his heirs, to the uses within mentioned, and 
 according, &c. (ut ante, No. 2.) 
 
 (SUBSCRIPTION OF WITNESSES, &c.)
 
 185 
 
 APPENDIX. 
 
 EXTRACT FROM THE THIRD REAL PROPERTY 
 REPORT RELATING TO THE CUSTOM OF 
 GAVELKIND (a). 
 
 AFTER very mature deliberation, we are of opinion that Custom of ga- 
 
 the custom of Gavelkind should be abolished. velki ? d P' 
 
 . posed to be 
 
 This custom prevails with respect to socage lands, over abolished. 
 
 almost the whole of the county of Kent, and in a qualified It prevails 
 manner, over copyhold lands in various parts of the King- ^jfY^fK nt 
 dom. It is attended with many serious practical inconve- and over copy- 
 
 niences, which do not admit of an effectual cure, except by h . olds m va ~ . 
 ., , -.... J nous parts of 
 
 its abolition^ the k gdom . 
 
 The principal peculiarities which distinguish socage lands i s attended 
 subject to the custom of Gavelkind, from free and common w . ith inconve- 
 
 socage, are : 1. That the land descends to all males in T 
 
 Peculiarities 
 
 equal degree, in equal shares. 2. That the husband is of this custom. 
 
 tenant by the curtesy of his deceased wife's land, whether 
 
 there were issue born alive or not. 3. That the widow is 
 
 dowable of one-half, instead of a third. 4. That an infant 
 
 may alien by feoffment at the age of fifteen. 5. That 
 
 upon a conviction of felony, there is no escheat by reason 
 
 of corruption of blood. 
 
 (a) Made in 1832. 
 
 B B
 
 186 
 
 EXTRACT FROM THE THIRD 
 
 If any persons contend that Gavelkind is preferable to 
 free and common socage, as it now subsists, they ought to 
 argue for its extension over the whole realm ; for there is 
 nothing in the situation or circumstances of the county of 
 Kent, which renders the custom peculiarly adapted to that 
 district. 
 Corruption of By stat. 54 Geo. 3, c. 145, corruption of blood is now 
 
 blood now invariably saved upon attainder for felony, except in cases 
 
 saved upon 
 
 attainder, ex- of treason, petit treason, and murder. 
 
 cept in cases of The peculiarities of Gavelkind which substantially con- 
 treason' and tinue, respect only descent, curtesy, dower, and alienation. 
 murder. The three last may be speedily disposed of; no one will 
 
 The only pe- probably contend, that for these alone, the county of Kent 
 gavelkind sub- should be under a different system of law from the rest of 
 stantially con- England. 
 
 thos^^-espect- ^ n our ^ rst Report W 6 expressed an opinion, that the 
 
 ing descent, husband should be entitled to be tenant by the curtesy, 
 
 er^anTaliena- wnet ^ er there were issue or not ; and we proposed that 
 
 tio'n. this should become the general law of the land. We like- 
 
 Alterations wise, in the same Report, suggested several new regulations 
 
 infiret m Report as * ^ e TI S^ to dower ; and these, if approved of, ought 
 
 in regard to to be generally adopted (). With regard to the proportion 
 
 and f the husband's lands to be enjoyed by the wife, we are 
 
 not aware of any reason why it should be different in diffe- 
 rent counties. 
 
 Astothepow- The power of aliening land at the age of fifteen is, per- 
 1 ' ^ at ^ a P s ' defensible as an expedient for palliating the extreme 
 inconvenience which is felt in making out titles to Gavelkind 
 lands, on account of the frequency of descent to infant 
 heirs. In any other view, it is an absurd exception to the 
 wise rule of law for the protection of minors, that every 
 contract entered into by a person under twenty-one years 
 of age, unless for necessaries, is absolutely void. 
 
 As to the rule The expediency of preserving Gavelkind tenure must 
 
 of descent. reg f. U p 0n if g peculiar rule of descent. 
 
 Political con- If the subject were treated on political ground, two 
 
 connected 8 questions present themselves. 1. Rebus integris is this a 
 
 with it. 
 
 (6) See accordingly, the statute 3 & 4 Will. 4, c. 105.
 
 REAL PROPERTY REPORT. 
 
 187 
 
 good rule of descent ? 2. If not, is there now any serious 
 objection to its abolition ? 
 
 The Gavelkind rule of descent has neither the advantages 
 of primogeniture, nor of equal partibility. 
 
 If it were allowed to take effect independently of settle- 
 ments and wills, it must, in a few generations, break down 
 ancient families, and cause a subdivision of the land un- 
 favorable to agriculture, and to every sort of improvement. 
 In the meantime, the daughters would be left wholly unpro- 
 vided for. It would not be the peculiar duty of the eldest 
 brother, to whom no especial favour is shewn, to provide for 
 them ; and they would be deprived of the consequence they 
 might have enjoyed in society, had the family estate re- 
 mained entire under one head. 
 
 It appears by the examinations taken before us, that 
 Gavelkind descent is generally controlled by settlements and 
 wills, which shows that, in truth, it does not peculiarly suit 
 the necessities and inclinations of the owners of the soil. 
 The distribution of property, which, in the majority of 
 cases, a prudent owner would himself direct, must be con- 
 sidered the proper distribution to be made upon intestacy 
 by the law. 
 
 But, independently of political considerations, there are Mischiefs at- 
 mischiefs attending this mode of descent, which induce us 
 to recommend its abolition. cent. 
 
 When an intestacy of the owner of an unsettled estate In case of an 
 
 held in Gavelkind does happen, it sometimes occasions great m jestacy, no 
 
 sale nor parti- 
 inconvemence. It is often important to some of the sons tion, nor lease 
 
 to have their shares converted into money, in order to f tne estate 
 enable them to embark in trades or professions. In France lint ji t jj e 
 and other countries, where the law of equal partibility is youngest son 
 established, a power is given, on the death of the ancestor, 
 to sell or divide the estate; but, by the custom of Gavelkind, 
 each heir takes, as copartner, an undivided share ; and no 
 sale nor complete partition, nor even a valid lease of the 
 estate, can be made, until the youngest son attains the 
 proper age to execute a conveyance (c\ 
 
 (c) On the death of a mortgagee in fee of gavelkind lands intestate, 
 
 B B 2
 
 188 
 
 EXTRACT FROM THE THIRD 
 
 Titles are ren- 
 deredinlricate, 
 and dealings 
 with the pro- 
 perty are re- 
 tarded or im- 
 peded on ac- 
 count of the 
 subdivision of 
 the land. 
 
 These incon- 
 veniences 
 more frequent- 
 ly occur in the 
 descent of trust 
 estates. 
 
 Titles are frequently rendered intricate by the land being 
 frittered into shares, and errors are liable to arise in assu- 
 rances of the shares. Where there have been several 
 descents or intricate transactions, parties frequently mis- 
 take the amount of their shares. It has been proved 
 before us, that instances not unfrequently occur in 
 which, from the minority, or foreign residence, or embar- 
 rassed title of some of the parceners, or from the unwilling- 
 ness of some to concur in the sales or other dispositions of 
 the property, dealings with it are expensive, difficult, pro- 
 ductive of litigation, or impracticable, and the shares of the 
 parceners able and willing to dispose of them, are greatly 
 reduced below their intrinsic value. 
 
 A conveyancer of the first eminence, to a question re- 
 specting the operation of the custom of Gavelkind, an- 
 swered, "I have more than once had titles before me, in 
 " which it was almost impossible to ascertain with accuracy 
 "how far the estate was divided. I know it did come to 
 " half a seventy-second in one instance, and it was amaz- 
 ingly complicated. I have had several times great diffi- 
 " culty in deducing the title, on account of the subdivisions 
 "of the estate. I had one instance, in which there were 
 "twenty-nine parties interested in property that was not 
 "worth above 300."* 
 
 These inconveniences necessarily occur more frequently, 
 and in greater aggravation, in the descent of trust estates, 
 as to which there is great danger of intestacy, and great 
 difficulty after a considerable lapse of time in tracing the 
 pedigree of a family not having any beneficial interest in 
 the estate. 
 
 leaving several coheirs, some, or all of whom are infants, no recon- 
 veyance of the legal estate can be obtained until all the coheirs have 
 attained their majority, without a petition being presented to the 
 Court of Chancery for that purpose. (See stat. 13 & 14 Viet. c. 60, 
 sec. 7; Re Kent, 8 Law Jour. (N.S.) 169 Ch. ; 1st Hep. Real Prop. 
 Com. p. 168. Exam, of J. J. Park, Esq.; 2 Jur. 26; and note (&), 
 ante, p. 46.) 
 
 * See Appendix to 1st Report, p. 270. Examination of A. R. 
 Sidebottom, Esq.
 
 REAL PROPERTY REPORT. 
 
 189 
 
 Palliations have been suggested to us, which, after deli- Palliations 
 beration, we have been obliged to reject. As to trust ^^if'v bUt 
 estates, it has been proposed that they should descend to been rejected, 
 the eldest son according to the rules of the common law, 
 or that one of the co-heirs in Gavelkind should be em- 
 powered to convey the whole interest. But questions would 
 arise, whether the case were or were not, one of naked 
 trust ; and if one co-heir in Gavelkind were allowed to 
 convey the entirety, there could be no certainty (at least 
 without the establishment of a General Register) that there 
 has not been a prior conveyance by another of the co-heirs, 
 to say nothing of the objection to there being two modes of 
 descent and alienation for the same land. 
 
 Some have proposed, that there should be a power given 
 to every tenant in fee of Gavelkind land, by an instrument 
 to be enrolled, to declare the land disgavelled ; but there 
 is great reason to fear, that whatever means should be used 
 for preserving evidence of the identity of the lands, this 
 power would, in the end, only aggravate the evil, by intro- 
 ducing an increased uncertainty in determining what lands 
 are disgavelled, and what remain subject to the custom. 
 Seven Acts of Parliament for disgavelling particular estates 
 have passed, and have produced, and are still likely to pro- 
 duce very great inconvenience. The lands thereby dis- 
 gavelled are not set out by metes and bounds, and are only 
 designated by the names of the owners, at whose instance 
 the Acts were passed. In the great majority of instances, 
 the evidence necessary to identify the lands is utterly gone, 
 and they have returned to the custom of Gavelkind, although 
 in some cases, if their identity could be proved, they might 
 now be claimed by the common law heir (d~). 
 
 A total and simultaneous abolition of the custom appears A total aboli- 
 the most simple and effectual remedy; and, provision ^jj^f*" 
 being made for existing interests, and time being given to mended, 
 make the dispositions of property which will become neces- 
 sary in consequence of the new law, we are not aware that 
 
 (rf) See ante, note (,;'), p. 43.
 
 190 
 
 EXTRACT .FROM THE THIRD 
 
 it would do any injustice. No individual would be deprived 
 of any interest in the land which he now enjoys, and the 
 owner of an estate might settle or devise it in any manner 
 he might think proper. 
 Remarks on It is said, that the inhabitants of Kent have a strong pre- 
 
 the supposed dilection for the ancient custom for which their county has 
 
 predilection of 
 
 the inhabi- been remarkable. 
 
 tants of Kent Though much regard is due from the legislature to the 
 feelings of those whose interests are to be dealt with, yet, 
 this principle is not to be put in competition with a certain 
 and considerable public good. The feeling in this case pro- 
 bably arose, from comparing Gavelkind in former times with 
 the tenure which would have been substituted for it, instead 
 of comparing it with free and common socage in its improved 
 state, and must therefore be allowed to have now the cha- 
 racter of prejudice. 
 
 Questions It is material to observe, that there appears to be a 
 
 likely to in- growing danger of questions arising as to what lands in 
 what lands in Kent are exempt from the custom of Gavelkind. A gentle- 
 Kent are ex- man of great eminence at the bar, who has become a pur- 
 custom 6 cnaser f large estates in Kent, being asked whether there 
 be any prevailing uncertainty on the subject, says, "I think 
 " it very probable that questions may arise upon the subject ; 
 "you find it generally laid down, that all lands in Kent are 
 " Gavelkind, and that therefore, no great inconvenience 
 " arises ; it must be very clearly proved they are not Gavel- 
 "kind, and it is said such proofs cannot be given. I bought 
 " an estate the other day, where it was perfectly clear it 
 " was not Gavelkind. I have purchased three estates in 
 " Kent, where I am perfectly satisfied none of them are of 
 " gavelkind tenure ; and now the records are thrown open 
 " by the Parliamentary Commissioners, I have no doubt 
 " many more such will be found." He afterwards goes on 
 to state, that he has no doubt that some lands in Kent were 
 held in capite, and never were Gavelkind, and that there are 
 many monastery lands in the County which were held in 
 Frankalmoign, and which may not be Gavelkind (e). He 
 
 (e) See ante, p. 34, and note (e).
 
 REAL PROPERTY REPORT. 
 
 191 
 
 adds, that on a purchase of land in Kent, there is an addi- 
 tional expense in ascertaining whether it be Gavelkind or 
 not.* 
 
 A recent case was proved to us, in which a regular Gavel- 
 kind title was shewn to lands in Kent ; but the name of a 
 person mentioned in one of the disgavelling Acts appearing 
 in the abstract, inquiries were made to ascertain whether 
 the lands might not have been disgavelled ; and, by means 
 of a county history, and an inquisitio post mortem it was 
 ascertained, that they had descended on the death of the 
 person named to his common law heir. They had after- 
 wards been treated as Gavelkind, and a legal estate being 
 outstanding, the Gavelkind heirs (who were infants) were 
 declared to be infant trustees within the statute of Anne, 
 and conveyed accordingly ; each conveying only his share. 
 The discovery induced counsel to treat the land as dis- 
 gavelled, and to require a conveyance of the entirety from 
 the common law heir. This occasioned a new application 
 to the Court of Chancery, the heir having died leaving an 
 infant son, who conveyed under the order of the Court. 
 
 No lapse of time or adverse possession can alter the 
 tenure ; and where, from the inspection of ancient re- 
 cords, which have recently become more accessible, it 
 shall appear that lands long treated as Gavelkind had once 
 been held in capite, or disgavelled, the Gavelkind title can 
 only be supported by resorting to the fiction of gavelling or 
 regavelling Acts, now lost, having been passed by the 
 Legislature (f). 
 
 The true, simple, and effectual remedy, seems to us to be, Proposal for 
 
 to pass an Act to disgavel the whole County ; and, for the ana ctto disga- 
 
 vel the whole 
 
 * Sec Appendix to 1st Eeport,p. 228. Examination of John Bell, Esq. 
 
 (/) The statute of limitations (3 & 4 Will. 4, c. 27), renders it now 
 unnecessary to resort to any such fiction ; for, although no length of 
 desuetude will alter the tenure of gavelkind land, and on usage will 
 restore the ancient tenure of land which has once been disgavelled, 
 yet the claim of any particular heir may at all times be barred by ad- 
 verse possession under the statute of limitations. (See 1 Byth. Con- 
 vey, by Sweet, 136.)
 
 EXTRACT FROM THE THIRD, ETC. 
 
 county, and to 
 deelare that all 
 freehold lands 
 within it shall 
 he held in free 
 and common 
 socage, subject 
 to the ordinary 
 
 dower, aliena- 
 tion, and des- 
 
 Gavelkind 
 
 cent\lso d pro- 
 posed to he 
 abolished,with 
 respect to co- 
 pyhold lands 
 throughout the 
 kingdom. 
 
 purpose of quieting all questions whether any of the pecu- 
 
 j^ ar cus t ms prevailing in the County depend upon Gavel- 
 
 . , \, 
 
 kind, to declare that all the freehold lands within the 
 
 County shall be held in free and common socage, subject to 
 
 ., , ., /, -, , , 
 
 * ne same rules as other iree and common socage lands res- 
 
 pecting curtesy, dower, alienation, and descent. 
 
 Thus > b ? abolishin S the custom of Gavelkind, and sub- 
 jecting all freehold land in Kent to all the incidents of 
 ordinary socage tenure, a great deal of old law will be taken 
 away, without any danger of new questions arising. Alter- 
 ations in jurisprudence must always be proposed with anxiety, 
 when they introduce new texts admitting of contrary con- 
 structions ; but an amendment which abrogates an old head 
 of law, and introduces no new one, is a certain good. 
 
 On the same principles, we are of opinion that the mode 
 ^ descent according to the custom of Gavelkind, which 
 prevails over copyhold lands in various parts of the King- 
 d ghould likewise be abolished (g\ 
 
 ^ gee accordingly, the statute 15 & 16 Viet. c. 51, sec. 34, ante, 
 p. 20, n. (a).
 
 193 
 
 INDEX. 
 
 ALIENATION: See INFANT. 
 
 BOROUGH-ENGLISH: where the custom may be supported, 19. 
 
 copyhold lands cease to be subject to the custom of, on being enfran- 
 chised, 20 n. 
 
 courts of law take notice of the custom of, 22. 
 
 cannot traverse that there is no such custom as, 24. 
 
 special customs of, must be pleaded, 26. 
 
 cannot begin at this day, 33. 
 
 descent of lands in, no act of the owner can alter, 38. 
 
 remainder and reversion in lands in, descend as lands in possession, 46. 
 
 uses and trusts descend in the like manner, 46. 
 
 executory trusts in lands held in, descend to the eldest son, 47 n. 
 
 descent of lands in, by representation, 57. 
 in tail, 59. 
 pur auter vie, 61. 
 
 copyhold lands descendible after the manner of, surrendered to a man 
 and his heirs, who dies before admittance, the right descends to the 
 customary heir, 61. 
 
 who is heir in, to take by purchase, 69. 
 
 to take advantage of a condition annexed to lands aliened 
 in, 70. 
 
 when words of condition in a will of lands in, shall be construed a 
 limitation, 73. 
 
 custom of, binds the King, 138 n. 
 
 See COMMON, CUSTOMS. 
 
 C C
 
 194 INDEX. 
 
 COHEIR : See PARCENER. 
 
 COMMON out of gavelkind or borough-english land follows the nature 
 
 of the land, 105. 
 out of gavelkind land, whether a widow shall be endowed of, 105. 
 
 CONDITION : who is heir to take advantage of a, annexed to lands 
 
 aliened in gavelkind or borough-english. 70. 
 
 when words of, in a will of lands in gavelkind or borough-english 
 shall be construed a limitation, 73. 
 
 COPYHOLD LANDS out of Kent descendible after the manner of 
 gavelkind or borough-english, cease to be subject to a customary 
 descent on enfranchisement, 20 n. 
 
 descendible after the manner of gavelkind or borough-english, sur- 
 rendered to a man and his heirs, who dies before admittance, the 
 right descends to the customary heir, 61. 
 jurisdiction of the Court of Chancery to decree partition of, 62 n. 
 
 See BOROUGH-ENGLISH. 
 CROWN : descent of gavelkind lands in the hands of, 36. 
 
 CURTESY : tenant by, in gavelkind lands, 77. 
 
 husband entitled after issue had only to a moiety so long as he lives 
 
 unmarried, 78. 
 husband entitled to a moiety as long as he lives unmarried though no 
 
 issue had, 88. 
 origin of the custom, 93. 
 of waste by tenant by, 94. 
 
 CUSTOMS: special, of Kent, whether part of the custom of gavelkind, 7 n. 
 of gavelkind, where they may be supported out of Kent, 19. 
 
 manner of pleading the, 21. 
 distinct between general and special, 24. 
 courts of law take notice only of the general, and not of the special 
 
 customs, 25. 
 
 of borough-english, distinction between general and special, 26. 
 of gavelkind, no usage against in Kent, 31. 
 what, bind the King, 138 n. 
 
 See BOROUGH-ENGLISH, DESCENT, DOWER, FELONY, GAVELKIND, 
 INFANT. 
 
 CUSTUMAL OF KENT, 143-168. 
 nature and authority of it, 1 43 n.
 
 INDEX. 
 
 195 
 
 CY-PRES: whether the doctrine of, can be applied to gavelkind lands, 75. 
 
 DESCENT : partible, antiquity and universality of, in England, 9. 
 right of primogeniture, how and when introduced into England, 11. 
 among the Saxons, 9. 
 
 the state of, in England at the Conquest, 11. 
 of gavelkind lands, whether the King has power to change the, 33. 
 
 in the hands of the crown, 34. 
 
 of gavelkind or borough-english, no act of the owner can alter, 38. 
 of gavelkind lands in the right line, 55. 
 
 by representation, 56. 
 
 of borough-english lands by representation, 57. 
 of gavelkind lands in the collateral line, 57. 
 
 from a coheir, 57 n. 
 
 to brothers of the half-blood, 57 n. 
 of an estate tail in gavelkind lands, 59. 
 
 in borough-english lands, 59. 
 
 cases relating to, 59. 
 of estates pur auter vie in gavelkind lands, 60. 
 
 in borough-english lands, 61. 
 
 whether the customary alienation by an infant be confined to lands 
 coming to him by descent, 134, 135 n. 
 
 See INFANT, REMAINDER, RENT, TITHES, TRUSTS, USE. 
 
 DEVISE of gavelkind lands to three sons, and if any of them die with- 
 out issue, then the others to be his heir ; held, an estate tail in 
 each, remainder over in fee, 59. 
 
 whether gavelkind lands devised to husband and wife for their lives, 
 remainder, to the next heir male of their bodies for ever, be a 
 devise in tail to husband and wife, 59. 
 
 of gavelkind lands to testator's sons equally to be divided among them, 
 gives them an estate by purchase, 70 n. 
 
 of gavelkind or borough-english lands, worda of condition construed 
 a limitation, 73. 
 
 widows may devise crops growing on lands held in dower, 113. 
 
 DOWER of lands in gavelkind, 95. 
 
 widow entitled to a moiety so long as she lives chaste and unmar- 
 ried, 95, 96. 
 
 how the incontinency must be proved in order to a forfeiture, 97. 
 who may take advantage of the forfeiture, 101. 
 the heir shall have the emblements after forfeiture, 101. 
 whether against the lessee, 102 & n. 
 
 C C 2
 
 196 INDEX. 
 
 DOWER : (continued) 
 
 where an action lies for calling tenant in dower in gavelkind a 
 
 whore, 102. 
 
 of what things she shall be endowed of a moiety, 103. 
 whether of a bailiwick or profits of a fair, 103. 
 
 of common in gross, 105. 
 
 of a rent, 105. 
 
 of tithes impropriate, 105. 
 what remedies lie for this dower, 106. 
 
 a court of equity now generally resorted to for the recovery of, 106 n. 
 of the manner of demanding, 107. 
 how to be assigned, 108. 
 
 customary, whether it can be waved for dower at common law, 111. 
 widows may devise crops growing on lands held in, 113. 
 not forfeited for the felony of the husband where the heir inherits, 142. 
 
 ENTRY : where the entry of one parcener is the seisin of all, 63 & n. 
 ETYMOLOGY of the word gavelkind, 1. 
 
 EVIDENCE of the disgavelling statutes, 43 & n. 
 
 of particular custom, Lambard's copy of the Custumal admitted, 145 n. 
 
 EXCHANGING gavelkind lands in Kent for common socage lands in 
 another county, effect of, 36 n. 
 
 EXTENDING lands of the heirs in gavelkind on a judgment entered 
 up against their ancestor, 67. 
 
 FAIR, or MARKET holden on gavelkind or borough-english land, 
 
 what profits of, follow the nature of the land, 47. 
 whether a widow shall be endowed of a moiety of the profits of a, 103. 
 
 FELONY : lands of tenant in gavelkind committing, and suffering 
 
 judgment of death, not forfeited, and do not escheat, 138. 
 origin of the custom, 138. 
 
 the King not entitled to the year, day, and waste, 139. 
 the custom does not hold if the defendant Avithdraw from justice, 140. 
 whether a brother shall inherit the gavelkind lands of his brother 
 
 executed for felony, 141. 
 
 dower not forfeited where the heir inherits, 142. 
 the custom extends not to high treason, 142.
 
 INDEX. 197 
 
 FELONY : (continued) 
 
 the custom rendered nugatory, 142 n. 
 
 FEOFFMENTS : precedents of, by infant heirs in gavelkind, 169-183. 
 
 GAVELKIND : etymology of the word, 1. 
 a tenure, 4. 
 
 other significations of the word, 5. 
 
 whether the special customs of Kent be part of the custom of, 7 n. 
 reason of the continuance of, in Kent, 17. 
 custom of, where it may be supported out of Kent, 19. 
 copyhold lands out of Kent cease to be subject to the custom of, on 
 
 enfranchisement, 20 n. 
 manner of pleading the custom of, in Kent, 21. 
 
 out of Kent, 23. 
 
 custom of, cannot be traversed, 24. 
 customs of, general and special, 24. 
 courts of law take notice only of the general, and not of the special 
 
 customs of, 25. 
 
 all lands in Kent presumed to be, 27. 
 all ancient socage lands in Kent are, 28. 
 actual partition of lands in, not necessary, 28. 
 knight-service lands in Kent, not, 29. 
 
 no prescription or usage in Kent against the general custom of, 30, 31. 
 of the effect of changing the tenure of knight-service into socage, 32. 
 
 or socage into knight-service, 33. 
 cannot be created at this day by the King's grant, 33. 
 whether the King has power to change the descent of lands in, 33. 
 lands in the hands of the crown, descent of, 36. 
 no act of the owner can alter the descent of lands in, 38. 
 custom of, nothing can extinguish but an act of parliament, 38. 
 remainder and reversion in lands in, descend as lands in possesion, 46. 
 uses and trusts descend in the same manner, 46 & n. 
 reconveyance of legal estate by infant heirs in, 47 n., 187 n. 
 executory trusts in, descend to the eldest son, 47 n. 
 what rents out of lands in, follow the nature of the land, 48. 
 generality of, throughout Kent, 53. 
 descent of lands in, in the right line, 55. 
 
 by representation, 56. 
 
 in the collateral line, 57. 
 
 in tail, 59. 
 
 pur auter vie, 60. 
 suit service by parceners in, 63. 
 of action of debt against heirs in, on the bond of their ancestor, 64 & n.
 
 198 
 
 INDEX. 
 
 GAVELKIND : (continued) 
 
 of extending the lands of heirs in, on a judgment entered up against 
 
 their ancestor, 67. 
 
 who are heirs in, to take by purchase, 68. 
 
 who is heir to take advantage of a condition annexed to lands in, 70. 
 when words of condition in a will of lands in, shall be construed a 
 
 limitation, 73. 
 
 whether the doctrine of cy-pres can be applied to lands in, 75. 
 of tenancy by the curtesy of lands held in, 77-94. 
 of the customary dower of lands held in, 95-114. 
 of the customary wardship of an infant possessed of lands held in, 115. 
 of alienation by an infant of lands in, 116-137. 
 custom of, binds the King, 138 n. 
 lands of tenant in, committing felony and suffering judgment of 
 
 death, not forfeited, and do not escheat, 138-142. 
 precedents of feoffments by infant heirs in, 169-183. 
 report of the Real Property Commissioners relating to the custom 
 
 of, 185-192. 
 
 See CURTESY, DESCENT, DEVISE, DOWER, FELONY, INFANT, 
 PARCENERS, STATUTES. 
 
 GUARDIAN : See WARDSHIP. 
 
 HEIRS in gavelkind, brothers of the half blood may succeed together 
 as, 57 n. 
 
 of action of debt against, on the bond of their ancestor, 
 64 & n. 
 
 of extending the lands of, on a judgment entered up 
 against their ancestor, 67. 
 
 to what purposes all the sons are not, 68. 
 
 in gavelkind and borough-english, ,who are, to take by purchase, 
 68. 
 
 precedents of feoffments by, 169-183. 
 
 See BOROUGH-ENGLISH, CONDITION, WARDSHIP. 
 
 INFANT : alienation of gavelkind lands by, at fifteen, 116. 
 
 of an estate in possession must be by feoffment, and the 
 livery of seisin propria manu, 118. 
 
 whether the custom extends to any other conveyance, 118. 
 does not enable him to make a will, 118. 
 does not extend to the grant of a reversion on an estate 
 for life, 118.
 
 INDEX. 
 
 199 
 
 INFANT : (continued) 
 
 custom warrants a release, where the infant is not in actual pos- 
 session and seisin of the land, 120. 
 whether a warranty by, on the feoffment be good, 133. 
 
 the custOrnai'y alienation be confined to a sale, 133, 134 n. 
 to lands coming by descent, 134, 135 n. 
 to lands of which he is seized in fee, 136. 
 
 may make a lease for life, or gift in tail, by livery propria manu, 137. 
 whether payment of consideration money to the, on a sale be good, 
 171 n. 
 
 KENT : reason of the continuance of gavelkind in, 17. 
 all lands in, presumed to be gavelkind, 27. 
 all ancient socage lands in, are gavelkind, 28. 
 knight-service lands in, not gavelkind, 29. 
 no prescription or usage in, against the general custom, 30, 31. 
 nothing can extinguish the custom of gavelkind in, but an Act of 
 
 Parliament, 38. 
 generality of gavelkind throughout, 53. 
 
 See CUSTOMS. 
 
 KNIGHT-SERVICE lands in Kent not gavelkind, 29. 
 manner of creation of, 30. 
 
 of the effect of changing the tenure of knight-service into socage, 32. 
 or socage into knight-service, 33. 
 
 LIVERY OF SEISIN : how usually made, 173 n. 
 
 need not be made on the day of the date of the deed, 173 n. 
 
 MARKET: See FAIR. 
 
 PARCENERS in gavelkind, one, may distrain for the whole rent, 50 n. 
 but cannot sue separately for a portion of it, 50 n. 
 descent from, 57 n. 
 
 bill in Chancery for partition by, 61 n. 
 of suit service by, 63. 
 
 where the entry of one, is the seisin of all, 63 & n. 
 the non-joinder of one, in a writ may be pleaded in 
 abatement, 65 n. 
 
 See PARTITION.
 
 200 MDEX. 
 
 PARTITION of gavelkind lands, actual, not necessary to support the 
 
 custom, 28. 
 
 manner of, of gavelkind lands, 61. 
 writ of, abolished, 61 n. 
 bill in Chancery for obtaining, 61 n. 
 of the capital messuage, 62. 
 rent for equality of, 63 & n. 
 
 PLEADING the custom of gavelkind in Kent, manner of, 21. 
 out of the county, 23. 
 
 distinction between general and special customs, 24. 
 the custom of borough-english, 26. 
 in action of debt against heirs in gavelkind, 64. 
 the like in borough-english, 66. 
 
 See WRIT. 
 
 PRECEDENTS of feoffments by infant heirs in gavelkind, 169-183. 
 PRESCRIPTION against gavelkind in Kent cannot prevail, 30. 
 PRIMOGENITURE : See DESCENT. 
 
 PURCHASE : who is heir to take gavelkind and borough-english lands 
 by, 68. 
 
 in trusts executed, 46 & n. 
 in trusts executory, 47 n. 
 
 RELEASE by an infant, when the custom warrants a, 120. 
 RELIEF : case where equity refused to grant, 75. 
 
 REMAINDER and REVERSION in gavelkind lands descend as lands 
 in possession, 46. 
 
 RENT out of gavelkind or borough-english land, what, follows the 
 
 nature of the land, 48, 105. 
 one coheir in gavelkind may distrain for the whole rent, 50 n. 
 
 but cannot sue separately for a portion of it, 50 n. 
 for equality of partition, 63 & n. 
 out of gavelkind land, whether a widow shall be endowed of, 105. 
 
 REPORT of the Real Property Commissioners relating to the custom 
 of gavelkind, 185-192..
 
 INDEX. 201 
 
 SOCAGE lands in Kent are gavelkind, 28. 
 
 of the effect of changing the tenure of knight-service into socage, 32. 
 or socage into knight-service, 33. 
 
 STATUTES : disgavelling, list of, 39. 
 
 only one now in print, 39 n. 
 
 names of the persons included in the, 39 n. 
 
 contents of the, 40. 
 
 take away the partibility only of gavelkind, and not the other quali- 
 ties, 42. 
 
 how to be proved in evidence, 43 & n. 
 
 of 31 Hen. 8, c. 3, whether the statute book printed by the King's 
 printer may be read in evidence, 44. 
 
 SUIT-SERVICE by parceners in gavelkind, 63. 
 
 TITHES impropriate out of gavelkind land, descend to the eldest 
 son, 52 & n. 
 
 whether a widow shall be endowed of a moiety of, 105. 
 
 TRUSTS in gavelkind land follow the nature of the land, 46 & n. 
 executory, of lands in gavelkind or borough-english, who is heir to 
 take under, 47 n. 
 
 USE in gavelkind land follows the nature of the land, 46. 
 
 WARDSHIP of gavelkind lands, customary,. 11 5. 
 rendered unfrequent, 116 n. 
 
 WARRANTY by an infant on a feoffment void, 133. 
 effect of a, taken away by recent statutes, 133 n. 
 
 WILL : custom does not enable infant tenant in gavelkind to make, 
 118 & n. 
 
 See DEVISE. 
 
 WRIT of partition abolished, 61 n. 
 
 dower unde nihil habet seldom resorted to, 106 n. 
 
 PRINTED BY HENRT IGGLESDEN, HIGH STREET, ASHFOBD.
 
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