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nesses,-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 & Lancaster.
(b) Ante, pt. 1, p. 291, et seq. (c) Bingham v. Woodgate, 1 Russ. & Myl. 32. S. C., (called also Hudlestone v. Corbett,) 1 Taml. 183. And
(d) Vide this case, ante, pt. 1,
pp. 44, 646.
sistently with the opinion expressed by the court in the last mentioned case, and in Stephenson & Hill (a), and Burrell & Dodd (b), 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 facienda, 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. (b) Infrà.
(c) Vide also 1 Sho. 287. 2 Sir W. Bl. 1116. Brown v. Rawlins, 7 East, 409. S. C. (Bourne v. Rawlins) 3 Smith, 405. Milbank & Dallaval, 19 Eliz. cited in Brown & Rawlins, (7 East, 429, 430.) 10 East 276, argo. in Curtis v. Daniel.
(d) 3 Bos. & Pul. 378.
(e) See the note to Carey v. Askew, Eden's Ed. of Brown's C. C.
2d vol. p. 59. Mr. Eden there mentions that this doctrine (as he was informed) had been discussed, as applying to certain customary estates within the manors of the Bishop of Durham, but that the question had not called for judicial determination. And see further as to customary freeholds, ante, pt. 1, p. 194 (tit. 'SURRENDER'); p.605. (tit. 'PLEADING'); p. 626. (tit. MANDAMUS').
Of Ancient Demesne.
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. 3 H. 4. 26. Ib. 190. 4 Inst. 269. Comy. 94, and 1 Salk. 340, in Hunt v. Bourne (or Burn). And the suitors are the judges of the court. Kitch. 190, (cites 34 H. 6. 38; 12 H. 4. 17; 3 H. 4. 16; 6 H. 4. 2). 4 Inst. 269. Jentleman's case, 6 Co. 11 b. F. N. B. 11. G. (n. b.)
(b) F. N. B. 12. Kitch. 187, 190. Jentleman's case, sup.
(c) F. N. B. 14. D. Kitch. 192. (d) 2 Inst. 542. 4 Inst. 269. Lex. Man. 26-7. Hunt v. Burn, 1. Salk. 57. S. C. Holt 60. F. N. B. 14 D.
(e) 9 Co. 31, a. Kitch. 192, cites 49 E. 3. 22.; and also a trial, 7 H.
6. 34, in which it was certified by domesday-book, that London was not ancient demesne. (N. B. The appendix to the second General Report from the Commissioners on Public Records, reprinted 1819, p. 467, cites for this 37 H. 6. 27. Vide 2 Leo. 191.) Saunders v. Welch, cited 1 Salk. 57. Gilb. Ev. 69. Lex Man. 28. Doe d. Rust v. Roe, 2 Burr. 1048. But whether parcel or not of a manor which is ancient demesne, is to be tried per pais. Kitch. 192-3, cites 12 Ass. 18. 22 Ass. 45. Hunt v. Burn, sup. Hopkins v. Pace, 1 Sho. 271, ca. 168. S. C. Comb. 183. 9 Co. 31. a. Br. Trials pl. 120.
Domesday-book (a), which about fifty years ago was reprinted by government, under an address of the House of Lords (b), records the survey made by command of William the Conqueror, of all the manors throughout England, except those
(a) The better opinion seems to be, that this book was compiled upon the introduction, or rather on the complete establishment, of feudal tenure in England by William the Conqueror, for the purposes of military defence; and, as Sir Martin Wright supposes, (Ten. 56), "in order to discover the quantity of every man's fee, and to fix his homage." Sir Wm. Blackstone observes, "We learn from the Saxon Chronicle (A.D. 1085), that in the 19th year of King William's reign, an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For as soon as the danger was over, the king held a great council to inquire into the state of the nation; the immediate consequence of which was the compiling of the great survey, called Domesdaybook, which was finished in the next
year; and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person." 2 vol. Com. 48. And adds, (Ib. p. 51.) "In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures, that the king ' is the universal lord and original pro'prietor of all the lands in his kingdom and that no man doth or can 'possess any part of it, but what has mediately or immediately been de'rived as a gift from him, to be held ' upon feodal services.""
The reader, however, is reminded, that most of our ancient text writers are agreed, that military services and feuds may be traced to the Saxon polity, but that the feudal law was completely established about the middle of the reign of William the Conqueror. Vide Harg. & Butl. notes to Co. Lit. 64. a. & b., 65. a., 191. a.
(b) And is said to be executed with the most scrupulous fidelity and correctness: See first Report of the House of Commons on Public Records, Appendix A. 1. a. 1 Phill. on Ev. 321.
in the northern counties, viz. Northumberland, Cumberland, Westmoreland, and Durham (a); and part of Lancashire.
This survey is supposed by some ancient writers, to have been undertaken about the year 1081, and to have been finished in 1086 (b); but the exact time of its commencement is differently stated by historians, some affirming that it was begun in 1085, and finished in about a year (c).
Domesday-book has been sometimes called Liber de Wintonia, or Rotulus Wintonia, which is considered to be evidence of the first place of its deposit. It appears to have been re
(a) A valuable supplement to Domesday-book was, a few years ago, reprinted, entitled the Boldonbook, or Survey of the Palatinate of Durham. In the appendix to the second general Report from the Commissioners on Public Records, (p. 475,) it is stated, that Hugh Pudsey, called also, De Puteaco, De Pusar, and De Pusaz, nephew to Stephen, king of England, caused this survey to be made in 1183; and that it probably had its name from Boldon, a village and parish near Sunderland, in the same diocese, where either it was compiled, or according to the census of whose inhabitants, the other manors, &c. in that bishopric were regulated. This useful work adds, "Of the motives or reasons which led "to this compilation, we have no re"cord; but Bishop Pudsey affected "the state of a sovereign in his own palatinate; in which there were "many royal rights, which had been
enjoyed by its prelates long before "the conquest, and were continued "long after; several of which re"main even to the present day. And "perhaps it was in consequence of