DEMESNE.

[BOOK II. PART II. ANCIENT party, he may have a writ of disceit, and avoid the fine or recovery (1); for lands in ancient demesne were not originally within the jurisdiction of the courts of Westminster; and the tenants enjoy the privilege not to be called from the business of the plough by any foreign litigation".

If, however, the lord be party, then the lands become frank-free, and are within the jurisdiction of the courts of Westminster; for the privilege of ancient demesne being established solely for the benefit of lord and tenant, they may destroy it at pleasure.

If a fine be levied of lands, part ancient demesne, and part frank-free, and the lord bring a writ of disceit, the court of B. R. upon view of the transcript of the record, and proof that part are ancient demesne, will reverse and avoid the fine as to that parcel; but they will not order the fine to be torn off the file, as in cases where the whole fine is reversed, because it shall stand good as to the frank-fee; but they will order a mark to be made on the fine, to signify that it is cancelled as to that part; and in this case the tertenant must be made party by scire facias; for otherwise the conusance of him that was party to the fine shall not bind, if the tenements are frank-free: because by that means the ter-tenant might be dispossessed without notice: whereas if he appear upon the scire facias, he may plead a release or confirmation in bar, and so preserve his possession. But if a fine be levied of land all ancient demesne,

(1) But he cannot bring a scire facias, because not a party to the fine or recovery, 3 Lev. 419, that a termor may have a writ of disceit, and make it ancient demesne at least during the term. 1 Rol. Abr. 327. And see as to this remedy, Rex v. Hadlow, Bl. Rep. 1170; Rer v. Mead, 2 Wils. 17; Zouch v. Thompson, 1 Ld. Raym. 177.

DEMESNE.

and the lord reverse it by writ of disceit, it seems doubtful ANCIENT from the books, whether the fine shall stand good between the parties (1); some say, that it ought not to be wholly set aside, nor the conusor restored to his land against his own solemn acknowledgment on record, especially since the lord, who brings the writ of disceit, seeks nothing but to restore the land to the privileges of ancient demesne; others on the contrary hold, that the writ of disceit, and the reversal thereupon, wholly avoid the fine, and restore the conusor to the possession of the land; and the conusance, though on record, shall be no estoppel; because it was made in a court that had no jurisdiction of the matter; and therefore the whole proceedings coram non judice (2). And if the lord enfeoff another in the tenancy, this makes the land frank-free, because the services are perpetually extinguished'. So if the lord release to the tenant all his right in the tenancy, or if he confirm to him to hold by certain services at the common law, these will make the land frank-free.

Bro. tit. Fine, 101; 17 E. 3, 31; F. N. B. 98, a; 9H. 7, 12; 8 E. 4, 6; 1 Rol. Abr. 863; F. N. B. 19; 4 Inst. 270; Cro. Eliz. 471.

f Rol. Abr. 324.

See Rol. Abr. 324, 325, and the cases there cited.

(1) But if after the fine levied, the conusor release to the conusee, and his heirs, or confirm his estate, he shall retain the lands, notwithstanding the fine be destroyed; because by the release or confirmation, his estate will be made firm and rightful. 4 Inst. 470; 10 Co. 50; Fitz. Disceit, 37; 1 Leon. 290. If tenant in tail of lands in ancient demesne, lease for sixty years, and afterwards levy a fine with proclamations in the Common Pleas, and this be reversed in a writ of disceit, yet by the better opinion, quoad the lessee, this fine shall be avoided, but shall make the lease good against the issue in tail. 1 Leon. 290; and see 1 Lutw. 710, 711.

(2) See more of the suspension or destruction of the customary descent, &c. incident to lands in ancient demesne, Rob. Gav. 70, 72,

GAVELKIND.

CHAP. III.

OF ESTATES IN GAVELKIND.

THE
tenure called Gavelkind is generally acknowledged
to be of feudal origin, and a species of soccage tenure,
and is supposed, before the Norman conquest, to have
been the grand custom of the realm. But it is now to
be found chiefly in the county of Kent (1) where it is
generally supposed to have been preserved from the inno-
vations of the Conqueror, by the well-known and suc-
cessful struggles made by the Kentish men to preserve

Wright, 207, 211; and being such is within the stat. 12 Car. 2, and is conveyed

and devised as estates at common law.

Seld. Analect. 1. 2, c. 7.

(1) It appears that nearly all the land in Kent was formerly gavelkind, see stat. 18 Hen. 6; for though this custom extends only to tenements of soccage tenure, yet there were very few lands in that county held by military service. 2 Mayn. 610; Rob. Gav. 87. But the quantity exempt from this custom, with respect to its particular quality of descent, which is the chief incident in which it differs from other lands, has been greatly increased by the disgavelling statutes. The presumption of law, however, still is, that all the lands in the county are gavelkind, till the contrary is shown, which contributes greatly to the maintenance of the custom. Indeed, the difficulty of proving what estates the persons comprehended in the disgavelling statutes were seised of at the time of passing those acts, together with that of showing what lands were formerly holden by knight's service, and the expense attending the search of registers for evidence of this kind, have operated so favourably for the custom, that it is the opinion of some, that there is nearly as much land in this country subject to the controul of the custom, as there was before the disgavelling statutes wer nade. See Rob. Gavelk. 80.

their ancient laws and privileges; it is, however, to be GAVELKIND. met with in some other parts of the kingdom, where it probably escaped the general fate of other property, either out of favour to particular owners, or other local or adventitious circumstances now unknown.

Of the many opinions concerning the original of this custom, the most probable seems to be, that it was first introduced by the Roman clergy, and therefore propagated more extensively in Kent, because there the Christian religion was first propagated (1).

But how this property came to escape, and to remain entire down to the people of Kent from their Saxon ancestors, is not agreed among the several antiquaries; some of them tell us, that the Kentishmen came with boughs, and demanded their customs to be confirmed by the Conqueror, or else resolved to oppose his march; others reject that story as a monkish fable, and think the Kentishmen submitted, and that the custom came with Odo, bishop of Bayeux, from Normandy; this, however, appears to have less probability, when we consider the many exemptions of the Kentish lands from feudal slaveries. Probably, therefore, notwithstanding the rejecting the story of their opposing the Conqueror with arms, it might thus far be true, that they came with their boughs to submit themselves to him on his first entry, and petitioned for the establishment of their rights and customs; which the Conqueror, who was a very politic prince, might, to gain reputation with his new people, benignly grant as an example of his clemency; a conjecture which

See 32 Hen. 8, c. 29; Kitch. Courts, 200.

(1) This tenure is reckoned by the best antiquaries to be the same with the Saxon Bockland, which was allodial and exempt from the feudal services. Somner, 12, 35, 37. But see more particularly of the origin of this custom, Rob. Gavelk. c. 21; White's Hist. Manch. 36; Wright Ten, 207.

GAVELKIND. appears the more probable, because this complexion is

given to the story by the monks (the historians of those times,) who are well known not to have been very favourable to his character; and the romantic part of the story might be invented by Spot, to aggrandize his own monastery d

The properties by which this tenure is distinguished from others, are various. But before these be separately noticed, it will be proper to apprize the reader, that the customs of gavelkind are to be divided into, 1. Such as are parcel of and comprehended under the name of gavelkind, as absolutely requisite and essential to the nature of these lands, such as partibility amongst males (without which it cannot exist, and which will alone constitute gavelkind;) and 2. Such customs as are collateral only to gavelkind, and not at all essential to its existence; as, that the husband shall be tenant by the curtesy of a moiety, whether he have issue or no; that the wife shall be endowed of a moiety, the customary wardship of the infant, his power of aliening at the age of fifteen, and the like, which are now customary privileges annexed to lands of this nature in some places (as the county of Kent,) but not in others; a distinction proper to be attended to, for this reason, that the courts of law take judicial notice of the general customs only, leaving the others to be specially pleaded by the party intending to avail himself of themf (1).

Taylor's History of Gavelkind, 132, 171; Somner,

12.

e Rob. Gavelk. 42.

f

Raym. 76; 1 Sid. 107; Cro. Car. 562.

(1) As the special usages and laws of particular places tend, in the instances where they prevail, to defeat the course of the common law, the general rule is, that the proof of a custom is turned upon him who would take advantage of it, but it is a peculiar favour allowed by the courts of law in this custom, that all lands whatever, lying