thus obtained a kind of ownership, which from its liability to arbitrary fines and quit-rents was at first little better than a tenancy at rack-rent. As other tenures in villeinage disappeared, there remained in the end three kinds of customary tenure which are now all called copyholds, and which differ rather in the history of their origin than in the rules by which they are governed, viz.: 1. Copyholds proper, which are described as parcel of Division of the manor held at the will of the lord according to the copyholds. custom of the manor. 2. Customary freeholds, or customaryholds, which are described as parcel of the manor held according to the custom thereof, but not at the will of the lord. estates. 3. Tenant-right estates, which are the customary free- Tenant-right holds of the northern parts of England, and are found in the north of Yorkshire, in that part of Lancashire called Over-Sands, in the south-west portions of Durham and Northumberland, in Westmoreland, and over the whole of Cumberland (n). The qualities of these tenant-right estates were discussed by Lord Ellenborough in an important judgment, from which the following sentences are extracted :—" These customary estates, known by the denomination of tenant-right, are peculiar to the northern parts of England in which border services against Scotland were anciently performed before the union of England and Scotland under the same government. And although these appear to have many qualities and incidents which do not properly and ordinarily belong to villeinage tenure, either pure or privileged (and out of one or other of these species of villeinage all copyhold is derived), and also have some which savour more of military tenure by escuage certain, which was (n) R. P. Comrs. 3 Rep. 20. See Co. Copyh. s. 32. See also as to tenants by border-services and the defence of Tynemouth Castle, ac cording to the custom of hus- Local freehold tenures. Ancient demesne. 1901. 1. Ch. 842 knight-service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll, and also are alienable contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon; notwithstanding all these anomalous circumstances, it seems to be now so far settled in courts of law that these customary tenant-right estates are not freehold, but that they fall in effect within the same consideration as copyholds, (so) that the quality of their tenure, in this respect, cannot properly any longer be drawn in question" (0). The military tenures being abolished in 1660 by the Act 12 Car. II. c. 24, the only freehold tenures now remaining are the ecclesiastical tenure of free alms and the various kinds of socage. Among these are the local tenures of ancient demesne, burgage, and gavelkind, the nature of which it is necessary briefly to discuss. Difficulties have often arisen from an indiscriminate application to copyhold cases of arguments derived from the rules applicable to these freeholds with customary incidents, which must not be confounded with the customary freeholds mentioned above. The same remark applies to those manorial socageholdings which survive in so many parts of the country, the free tenants of which resemble copyholders in many respects, as in the liability to customary heriots and reliefs, fines upon alienation, and the like (p). Ancient demesne is a tenure confined to socage lands held of the 1,422 manors which were described as Terra Regis in Domesday Book (9). The Real Property Com (0) Doe d. Reay v. Huntington, 4 East, 271. See also Burrell v. Dodd, 3 B. & P. 378. (p) See Passingham v. Pitty, 17 C. B. 299; Damerell v. Protheroe, 10 Q. B. 20; Warrick v. Queen's Coll., Oxford, L. R. 6 Ch. 716. (2) Bracton, i. c. 11; Britton, c. 66; Fleta, i. c. 8; Co. Copyh. s. 32; 4 Inst. 269; R. P. Comrs. 3 Rep. 12, 13. on almon to forcequer bad. cor. 1. Ch. 842 missioners stated that there was some confusion in the law There are, however, as a rule in manors of ancient Burgage tenure prevails only in certain cities and Burgage. boroughs, which have existed as such from time immemorial. Littleton says: "For the greater part such boroughs have divers customs and usages which be not had in other towns; for some of them have such a custom, that if a man have issue several sons and dieth, the youngest son shall inherit all the tenements which were his father's within the borough, as heir to his father by force of the custom: which is called borough-english. (r) Sects. 4, 5, 6, 40. Gavelkind. Also in some boroughs the wife shall have for her dower all the tenements which were her husband's" (s). In some other boroughs the widow has a moiety during her widowhood, or some other customary portion. Borough-english was so called in opposition to the law of descent prevailing in the towns under Norman law. Thus Nottingham was, as late as 1713, divided into the English borough and the French borough; in the one, real property descended to the youngest son in burgh-Engloyes, or borough-english: in the other, to the eldest by the ordinary law, which they called burgh-Francoyes (t). The tenure of gavelkind, by which most lands in Kent are held, is a very ancient species of socage, the name being derived from the old word "gafol," which signifies rent paid either in money, produce, or the performance of works of husbandry. Its principal incidents are the partibility of the inheritance among the males in each degree, the right of the widow and widower to have half the land for dower or curtesy until a second marriage (the widower taking his customary estate by the curtesy whether issue has been born of the marriage or not), the freedom from escheat for felony, and the infant's right to aliene by feoffment at the age of fifteen years. In many places in Kent the freeholders are subject to customary heriots, fines, and other ancient dues, and are compellable under penalty of distress to come for admittance into their tenancies. The most remarkable incident of this tenure being the partibility of the land upon descent, the word "gavelkind" has come to be applied to many copyholds which only resemble the freehold tenure in this particular: but this use of the word is improper, and apt to lead to mistakes. There are some few copyholds in the county, which generally follow the customs of gavelkind freeholds. (s) Litt. ss. 162, 163, 165, 166; Co. Litt. 109 a-111 a. (t) Yearb. Pasch. 1 Edw. III. 12, pl. 38; Rob. Gav., App. If such a copyhold is enfranchised the customs are extinguished (u): but nothing less than an Act of Parliament can alter a custom attached to a freehold tenure, which is said, therefore, to "run with the land," or be "inherent in the land" (x). There was at one time a practice of disgavelling by royal prerogative, or under royal licence, which soon became obsolete. A great number of estates in Kent were afterwards disgavelled by Acts of Parliament, which extended, however, only to the custom of partition of descent (y). The list of Acts includes the public Act of 31 Hen. VIII. c. 3, and the private Acts of 11 Hen. VII. c. 23; 15 Hen. VIII. c. 19; 2 & 3 Edw. VI. c. 1; 1 Eliz. c. 7; 8 Eliz. c. 10; and 21 Jac. I. c. 36 (z). All lands in this county are presumed to be held in gavelkind, until the contrary is proved. The test lies in proof of the tenure at the time of the Norman conquest, for "the law of gavelkind is unlike other customs; it is not good if it begins just before the reign of Richard the First. This custom existed long before other customs, and almost before any history of England." No land is now gavelkind which can be shown to have originally been held by a tenure higher than socage, such as frankalmoigne, or one of the military tenures. If the manor was originally in the superior tenure, the demesnes, wastes, advowsons, the freehold of the copyholds, and rents and profits arising out of the soil and belonging to the manor, are still held in free alms or in common socage, and not by the customary tenure (a). A manor properly consists of demesne lands, jurisdiction Nature of in a court-baron, and services of free tenants in fee liable (u) See post, c. xi. (z) Dickson's Case, Hetl. 64, 65. (y) Co. Litt. 140b; Wiseman v. Cotton, 1 Sid. 135; Doe d. Bacon v. Brydges, 6 M. & Gr. 282. (z) For lists of the lands affected, see Rob. Gav., App., and Elton, (a) Lushington v. Llandaff (Bishop manors. |