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other socage land, under the statute of wills, and consequently that the defendants, who were devisees, were entitled to it under the devise made to them.

In the manor of Irthington in Cumberland, and other the manors parcel of the barony of Gilsland, the estates pass by customary conveyance of bargain and sale, the operative words being grant bargain sell alien and surrender all, &c. the customary property of, &c. held of the lord as parcel of the manor of A., parcel of the barony of Gilsland, habendum to the alienee his heirs and assigns for ever, at the will of the lord, according to the custom of the manor ; with the license of the lord indorsed thereon by the steward. And in all these manors the freehold of the customary tenements is in the lord (a).

Another case of peculiar interest connected with this subject is Doe d. Cook & Wife v. Danvers (6). The estate appeared, by a case reserved at the trial, of ejectment, for the opinion of the Court of King's Bench, to be holden of the manor of Stebunheath, otherwise Stepney, in Middlesex, by copy of court-roll, (but not ad voluntatem domini,) and to pass by surrender and admittance, and to have been leased under

(a) Doe d. Earl of Carlisle v. tenements, as the heir of J. T., and Towns, 2 Barn. & Adolp. 585. A the steward tendered to the defendcourt is held twice a year for the ma- ant a written admittance on a stamp, nors within the above barony, at which which he refused to accept, but was the tenants are called by the roll, willing to have his name inrolled and and proclamations are made in case to pay the customary fee of one shilof death or alienation, for the heirs ling. Upon such refusal the lord or new tenants to appear, and on ap- seised quousque. But the court of pearance the names of such tenants B. R. held that such an inrolment are entered on a roll by the steward, was not an admittance within the who receives a fee of one shilling provisions of the stamp act of 55 from each tenant, and a further fee Geo. 3. c. 184, but that on an alienof five shillings for the indorsement ation the estate passed by the cusof a license of alienation. In the

tomary conveyance, and that on a above case of Doe & Towns procla- descent the heir became entitled as mation had been made for the defend. in the case of freehold property. ant to be admitted to two customary (6) 7 East 299.

a previous license from the lord ; and it also appeared to have been surrendered by the late owner, to the uses of her will. And the court ruled, that it being so circumstanced, whether held at the will of the lord or not, the freehold was in the lord and not in the tenant, and that with respect to all the questions arising in the case, it was to be taken and considered as copyhold.

The court had entertained a doubt in the above case how far the will could be considered a will in writing under the terms of the surrender, and whether under the 7th and 9th sections of the statute of frauds, the will must not be signed by the party, as thrown out by Lord Kenyon in Doe d. Tempest v. Dancer (1796), and according to what is reported to have been said by Lord Hardwicke, in Tufnell & Page, “ that “ when such will was in writing, and signed by the party, that “ was sufficient.” But they now expressed themselves satisfied, that a will to direct the uses of a surrender of a copyhold or of a customary estate passing by surrender, was not within the statute of frauds, and need not be signed, unless such signature be required by the terms of the surrender to the uses of the will; and added, that although they thought it would have been the sounder construction to have holden, that copyholds were comprised in the general words of the 5th and 6th sections of the act, “ all devises and bequests of any lands

or tenements;" yet it was a settled point, that the lands pass by the surrender and will taken together, as if the devisee's name was inserted in the surrender, and that they do not pass by the will : that the 7th section, requiring declarations or mentions of trusts of land to be in writing, signed by the party enabled to declare the trust, or by his will; and the 9th section requiring all grants and assignments of trusts to be also in writing, signed by the party granting or assigning, or by such last will or devise, did not extend to surrenders of copyhold or customary estates, but referred only to such will as the statute recognized, viz. a will attested by three or four witnesses, –a will of such lands not being a creation or declaration,—or a grant or assignment of a trust (a). And as to the question which had arisen, whether the will stated in the case was to be considered a will in writing, the court referring to 1 And. 34. 3 Leo. 79. 2 Keb. 128. Carey & Askew, 2 Bro. C. C., and a note to Wagstaff v. Wagstaff, 2 P. W. 259. a. (b), also ruled, that the instrument in question, which was the written instructions for a will disposing of the above customary estate to the lessor of the plaintiff, and which had been pronounced as the will of the testator by the prerogative court, was a will in writing within the terms of the surrender; and judgment was therefore given for the plaintiff.

It is proper, however, to apprise the reader, that in a recent case (c), (in which the principal question was, whether the effect of a union of the fee of customary tenements with the estate for life of the lord, was an absolute extinguishment of the customary interest, or only a suspension of it during the life of the lord (d)) the present Master of the Rolls held, that, as the custom of the manor required a bargain and sale, as well as a surrender and admittance, to pass the customary tenements which were the subject of the suit, they were plainly freehold (or, in other words, that the freehold was in the tenant, and not in the lord). And his Honor added, “ The necessity of surrender and admittance is probably a remnant of the ancient tenure of villenage, and does not affect the freehold nature of the interest, although it prevents the customary tenement from being strictly of freehold tenure,-a distinction which is well established.” But, with great deference to so high an authority, I would submit that, as the form of the deed of conveyance was not calculated to pass a freehold interest either at common law, or under the statute of uses, the above case is not distinguishable from that of Doe & Huntington, and that, con(a) Ante, pt. 1, p. 107.

see 3 Russ. 112, argo. in Willan & (6) Ante, pt. 1, p. 291, et seq. Lancaster.

(c) Bingham v. Woodgate, 1 Russ. (d) Vide this case, ante, pt. 1, & Myl. 32. S. C., (called also Hudlestone v. Corbelt,) I Taml. 183. And

pp. 44, 646.

sistently with the opinion expressed by the court in the last mentioned case, and in Stephenson & Hill (a), and Burrell & Dodd (6), the customary tenements in the principal case, ‘ fell within the same consideration as copyholds, the freehold interest, therefore, being in the tenant, and not in the lord (c).

In concluding my observations on the qualities of customary freehold tenure, it is proper to notice, that the Court of Common Pleas, in the case of Burrell v. Dodd (d), decided that customary or tenant-right estates, held of the lord by certain rents and services according to the custom of the manor, are not within the statutes of partition, and, consequently, that it was a sufficient objection to the plaintiff's obtaining judgment under a writ de partitione faciendâ, that the land, upon the face of the plea, appeared not to be freehold, properly so called. And the court, in giving judgment, observed, that in some points the law regardeth such tenants no more than as mere tenants at will, “ for the freehold at the common law resteth not in them but in their lords, unless it be in copyholds of frank tenure, which are most usual in ancient demesne.” This case may therefore be added to the several other authorities fixing the freehold interest in the lord, in customary freehold lands, whether passing by surrender or by deed of grant or bargain and sale (e).

I have had frequent occasion in the course of the present chapter to speak of tenants in ANCIENT DEMESNE; and I purpose now to proceed to a consideration of the peculiar nature and properties of that tenure.

(a) Ubi sup.

2d vol. p. 59. Mr. Eden there men(6) Infrà.

tions that this doctrine (as he was in(c) Vide also 1 Sho. 287. 2 Sir formed) had been discussed, as apW. Bl. 1116. Brown v. Rawlins, plying to certain customary estates 7 East, 409. S. C. (Bourne v. Raw within the manors of the Bishop of lins) 3 Smith, 405. Milbank & Durham, but that the question had Dallaval, 19 Eliz. cited in Brown not called for judicial determination. & Rawlins, (7 East, 429, 430.) 10 And see further as to customary East 276, argo. in Curlis y. Daniel. freeholds, ante, pt. 1, p. 194 (tit. (d) 3 Bos. & Pul. 378.

"SURRENDER'); p.605. (tit.PLEAD(e) See the note to Carey v. As- ING'); p. 626. (tit. MANDAMUS '). kew, Eden's Ed. of Brown's C. C.

CHAP. XIX.

Of Ancient Demesne.

6

It may be proper to premise, that the Court of Ancient Demesne, is a Court Baron, and not a Court of Record (a); a writ of error, therefore, does not lie in it, but the relief is by writ of false judgment (b).

The tenure of Ancient Demesne is confined to such lands as were held in socage of manors belonging to the crown in the reign of Edward the Confessor (c), and in the reign of William the Conqueror (d), and sometimes therefore designated socage in ancient tenure'—and whenever a question arises as to the particular lands being ancient demesne, it is to be decided by the production of Domesday-book (e); wherein the lands which were in the possession of King Edward, are called terræ Regis Edwardi, and those which were in the possession of William the Conqueror, are called terræ Regis.

(a) Kitch. 187, cites 9 Ed. 4. 43. 6. 34, in which it was certified by 3 H. 4. 26. Ib. 190. 4 Inst. 269. domesday-book, that London was Comy. 94, and 1 Salk. 340, in Hunt not ancient demesne. (N. B. The v. Bourne (or Burn). And the appendix to the second General Resuitors are the judges of the court. port from the Commissioners on Kitch. 190, (cites 34 H. 6. 38; 12 Public Records, reprinted 1819, p. H. 4. 17; 3 H. 4. 16; 6 H. 4.2). 467, cites for this 37 H. 6. 27. Vide 4 Inst. 269. Jentleman's case, 6 Co. 2 Leo. 191.) Saunders v. Welch, 11 b. F. N. B. 11. G. (n. b.) cited 1 Salk. 57. Gilb. Ev. 69.

(6) F. N. B. 12. Kitch. 187, 190. Lex Man. 28. Doe d. Rust v. Roe, Jentleman's case, sup.

2 Burr. 1048. But whether parcel (c) F. N. B. 14. D. Kitch. 192. or not of a manor which is ancient

(d) 2 Inst. 542. 4. Inst. 269. demesne, is to be tried per pais. Lex. Man. 26–7. Hunt v. Burn, Kitch. 192-3, cites 12 Ass. 18. 22 1. Salk. 57. S. C. Holt 60. F. N. B. Ass. 45. Hunt v. Burn, sup. Hop14 D.

kins v. Pace, 1 Sho. 271, ca. 168. (e) 9 Co. 31, a. Kitch. 192, cites S. C. Comb. 183. 9 Co. 31. a. Br. 49 E. 3. 22. ; and also a trial, 7 H. Trials pl. 120.

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