CUSTOM-continued.

damore) not to extend to the heir of one who
died before admittance, but this would seem
to have been by the strictness of the custom,
Page 31, 32
when destroyed
32, 545
semble, that unity of possession in the lord will
destroy the custom of copyhold lands in the
nature of gavelkind or borough-English..ib.
not destroyed by severance of the freehold
to seize as forfeited for want of claim, within a
fixed period, is not binding on persons be-
yond sea, or under any disability.. 24, 288,
445

7

semble, that a custom requiring the expression
of a husband's consent on the face of the
131
surrender, is not void in law
whether a custom negativing the right to sur-
render to the use of a will could have been
supported
22, n.
or would have been bad as suggested by Lord
Thurlow in Pike & White, [reference to the
judgment delivered by Lord Abinger in Doe &
Llewellin, in which the Court of Exchequer
inferred that copyholds passed by will, a
contrary custom not being found,]212,213, n.
confirmation of the decision in Rex v. Rigge,
that a custom for the steward to prepare all
surrenders is good
531 & n.
reference to the customs of the Forest of
602
Knaresborough
See DESCENT; EVIDENCE; ESTATE TAIL;
FAIR; GUARDIAN; LEET; LUNATIC; PORT-
REEVE; PRESENTMENT OF SURRENDER; SUR-

RENDER.

..

CUSTOMARY COURTS. See COURT BARON,
(Customary).

CUSTOMARY FREEHOLDS (or Customary
holds, or Privileged Copyholds);

semble, that customary freeholds passing by
surrender and admittance, are on a footing
with pure copyholds with regard to the
bankrupt laws
83, n., 302, n.
erroneously stated in Doe & Parke, that cus-
tomaryholds were first mentioned in the bank-
rupt act of 6 Geo. 4, c. 16
origin and nature of the tenure

302, n.

..

561

were anciently called privileged villenage or

when reputation is admissible evidence
a liberal construction of, is induced by the title
29
of freebench
attaches to a lineal descent

28

ib. 44

a particular custom as to descent attaches to
an estate pur autre vie

villein socage
called by Lord Coke copyholds of frank tenure,
562

ib.

30

and to a rent granted de novo, or reserved out
of copyholds
and to a resulting use or reversion in fee
but where a descent is according to the custom
of gavelkind or borough-English, the words
"right heirs" were only descriptio persona
where there was no limitation to the ancestor,
and the descent was to the heir at common law:
but now see 3 & 4 Will. 4, c. 106, s. 2.. ib.
the custom of descent extends to trust estates,
with an exception

court

CUSTOMARY FREEHOLDS-continued.
an inrolment of a customary conveyance under
a special custom, held not to be an admit-
tance within the stamp act Page 575, n.
held in Doe & Danvers, that a will to direct the
uses of a surrender of a customary estate,
was not within the statute of frauds .. 576
and that such will was not a creation or decla-
ration, or assignment of a trust within the
7th section of the act
.. ib.
semble, that a recovery might have been suf-
fered in the Common Pleas of customary
freeholds, passing by surrender in a borough
.. 563, n.
are not within the meaning "frank-tenements,"
but the tenants have a customary freehold
interest, though not a freehold tenure.. 563
not being members of the county court, they
were incapable of voting at elections prior to
2 Will. 4, c. 45
566, 567
except for waste, or other freehold land allotted
in respect of their customary estate, when
the tenure was not altered by act of parlia-
ment
557
whether the lord can seize as in the case of
ordinary freeholds
566
the wife is not dowable of a trust estate ..568,
569, n.
their distinction from ordinary copyhold must
be observed in the mode of pleading
568
a custom that the grantee by deed should be
admitted in the lifetime of the grantor, is
good
24, 284, n., 568, n.
a right of entry, when passing by surrender and
admittance, was not tolled by descent, 569, n.
whether a devise of an equitable interest must

..

but not to casual services, as fealty, &c. .. ib.
Sir Edward Coke and other subsequent writers,
following Rastell's ed. of the stats., made
this forty years for rents, &c.
ib. n.
semble that the 50 years was reckoned from
the seizin of the ancestor, and not the death
of the particular tenant
482
and that the grantor or settler was to have been
considered an ancestor of the remainder-man
within the meaning of 32 H. 8.
ib.
the word "predecessor" in the act had rela-
tion to corporations only, and not to a tenant
for life
482, n.
taking possession under a defective title remits
to a prior title

482

plaints in nature of the grand writ of right,
473, 483, &c.
the mere writ of right was applicable only to an
estate in fee simple
483

but was not alone applicable, as a writ of es-
cheat, in nature of a writ of right, lay for the
lord on the death of a tenant in fee simple;
(but an ejectment is the proper mode of try-
ing the lord's title ;)
483, n.
the lord had the remedy of formedon in reverter
on the death of tenant in tail without heirs
inheritable, and there being no remainder, ib.
and of intrusion or ejectment, if a copyholder
in fee in remainder or reversion died without
heirs, and afterwards the tenant for life died,
and a stranger entered

ib.
even before the stat. de donis the reversioner
had the remedy of a formedon in the reverter
upon a gift to a man and the heirs of his
body, who aliened before he had issue, and
afterwards died without any

483
after the stat. de donis, a tenant in tail by de-
scent, or in remainder, had a peculiar writ of
right called also a formedon
ib.
but there was no formedon in remainder at
common law
55, D.

a formedon was applicable to an entry or abate-
ment by a stranger, upon the decease of the
ancestor, tenant in tail
483, 484, n.

the writ of formedon was limited by stat. 21
Jac. c. 16, to twenty years
484
the twenty years in the case of a formedon in
the descender began to run when the title de-

CUSTOMARY PLAINTS-continued.

..

scended to the first heir in tail, unless he lay
under some legal disability :-and once be-
ginning to run, no subsequent disability
Page 484
would have availed
but a possession even for thirty years might not
ib. n.
have been adverse
the law as to disabilities was altered by 3 & 4
W. 4, c. 27 (post, tit. Ejectment,")
App. 1028, &c.
the stat. of 21 Jac. rendered the writ of forme-
don almost obsolete, the remedy by ejectment
being equally available, but a formedon had
sometimes been preferred, as affording better
means of obtaining information of the title
484
relied upon by the defendant
the writ of quod ei deforceat was given by the
stat. of Westm. 2 to tenants in tail, and for
life, &c., when barred of entry, or by reco-
very on non-appearance in a possessory suit,
485
but not after recovery upon defence, and hence
ib. n.
the practice of common recoveries
one coparcener who was deforced by another
might have had a writ of right de rationabili
parte, distinguishable from the possessory
485
remedy of a nuper obiit
plaints in analogy to the above remedies at
common law were available to copyholders,
plaints in nature of writs of right were not so
complicated as real suits at common law, ib.
but the same accuracy was requisite in the
486
pleadings
the established practice not to allow a demand-
ant to amend, confirmed by the cases of
Tooth & Boddington and Worley & Blunt,
486, 487
but the rigour of the practice had been relaxed
under special circumstances, Webb & Lane,
486

..

ib.

..

been enforced by an application to the Court
of Common Pleas for a mandate to put the
party into possession by the posse manerii,
but probably the Court of B. R. would have
enforced the execution of the lord's precept
Page 489
to the bailiff
the judgment would probably be held to sus-
489, n.
tain an ejectment
the limitation in plaints in nature of the writ of
right was sixty years, if founded on the seizin
of the ancestor; and thirty years if founded
on the demandant's own seizin

490

but an uninterrupted possession even for sixty
years would not have created a title, when
the right of entry was suspended by the con-
tinuance of a prior estate

ib.

an estate might have been enjoyed adversely
for many hundred years, and yet been reco-
vered by a remainder-man or reversioner in
fee, not by writ of right after an adverse pos-
session for sixty years, but by ejectment
brought within twenty years after the right of
entry accrued. Taylor & Horde; Doe &
491
Horde

..

by 3 & 4 Will. 4, c. 27, entry or action to re-
cover land, limited to twenty years, but with
an allowance of ten years from the termina-
tion of disability
App. 1024, &c.
and to 40 years even in cases of disability,

..

App. 1028
See EJECTMENT; FOREIGN COURT; MANDA-
MUS; REMITTER.

DECENNARIES; DECINERS [desiners or dozi-
ners]; See LEET.

DECINERS; surrenders are taken by, in the
manor of Kettering, under a special custom,
and presented and inroiled at the following
126, n.

court

..

DE DONIS, statute of, does not extend to
54, &c., 86
copy holds
DEFORCEMENT; its nature defined (tit. Cus-
474, &c.
tomary Plaints)
DEMESNES; the word in its ordinary significa-
tion is applicable only to the lands which
the lord of the manor either actually or po-
662, n.
tentially has, in propriis manibus
after severance they cannot reunite, if the de-
14
misable quality has been destroyed
no ground for a supposed distinction between a
tenancy escheating, and a purchase by the

and cannot be claimed by prescription
formerly, but no longer, disposed of by the
crown for charitable uses

ib.

no longer any distinction between the death of
a person being and not being within the age
of discretion, when killed by any animal,
644, 645

a clear distinction between death occasioned in
aquá dulci and aquá salsá
645
in the latter there can be no deodand, even if it
be an arm of the sea
ib.
the merchandize of a ship is not forfeited by a
death occasioned by a fall from the vessel,
646, n.
that which is the immediate cause of death, as
a wheel of a carriage, or part of the loading
of it, is alone forfeited 645, 646, 647
but formerly all things moving to the death
were considered deodands
645 & n.
the value of the wheel, or other thing forfeited,
is set by the coroner's inquest, and taken in
lieu of it
645

when the violence of a stream is influential to
the death, a horse or carriage on or in which
the person is riding will not be forfeited, 646
it is immaterial to whom the ownership of that

which is the cause of death may belong ib.
nothing can be forfeited as a deodand which
forms part of, or is affixed to, the freehold,
646, 647
whether a hay-rick is forfeited when the death is
occasioned by a fall from it
647, n.

DEPOSIT; the rule that it creates an equitable

mortgage confirmed
See COPIES OF COURT ROLL.

DERELICT LANDS, belong to the crown, but
lands imperceptibly added to demesnes by
alluvion, &c., belong to the lord,

32, 33, 666, n.
DESCENT; of copyholds is governed by the
rules of common law
27, 28, 29, 43

a person may take as heir in special tail without
being heir general

..

29

ib.

but no person can prescribe a mode of descent
not sanctioned by the general rule of law, or
by custom
the heir would have taken by descent, and not
by purchase, when the two rights met, 43, 143
so when there was a limitation in the same in-
strument to the ancestor for life
30
the cases went upon the supposition that the
heir had no election
275
the rule extended equally to a devise to the
heir with an executory devise over, and to a
devise from the heir upon a contingency, ib.
and to a devise to the heir, charged with debts,
44, 276
by 3 & 4 Will. 4, c. 106, under a devise to the
heir, he takes by the will, and not by descent,
43, n., 143, n.
a limitation to the person conveying, or his
heirs, will create an estate by purchase, s. 4,
44, n., 143, n., 295, n.
and a lineal ancestor takes as heir, in preference
to collaterals, s. 6
143, n.
so a father is preferred to a brother or sister,
43, n., 143, n.

s. 3

when the descent is according to the custom of
borough-English or gavelkind, a younger
child is not compellable to bring a copyhold
into hotchpot

44

of copyholds would not have tolled an entry,
(and see 3 & 4 Will. 4, c. 27, s. 39) 46
a right of entry no longer barred by.. 47, n.
86, n., 377, n.
semble, that under a limitation to A. and his
heirs, or his executors or administrators, for
the life of B., the heirs in the one case, and
the executors or administrators in the other,
would take as special occupants, and not by
descent
351, n.
observations on the subject of descent of copy-
holds enfranchised under 4 & 5 Vict. c. 35,
26, 27, D.
See BOROUGH-ENGLISH; COPYHOLDS; CUS
TOM; DEVISE; ENCROACHMENT; GAVEL

KIND.

DEVISE; a limitation by will to A. and his
heirs, and if he should die without leaving
any child, to B., creates a fee conditional,
there being no custom to intail Page 55, n.
by 1 Vict. c. 26, copyholds and customary
freeholds are devisable, with the formalities
prescribed by s. 9.-(A general reference to
the statute in p. 233, n.) 211, n., 233, n.
and the right extends to estates pur autre vie,
(s. 3)
52, 125, n., 233, n.
and to contingent, executory, and other future
interests, (s. 3)
138, n., 418, n.
by custom copyholds were devisable without a
surrender to will, even before the late stat.
of 55 Geo. 3, c. 192
lands possessed at the date of the will passed
by a general devise, although the words of a
subsequent surrender to will were future,

212

213, 214

a devise containing a description applicable to
after purchased lands would have passed
them, when surrendered to uses already de-
clared
214
a feme covert cannot devise pursuant to a sur-
render made when sole 128, 129, 215, 267
by a joint tenant pursuant to a surrender to
will, is good, though the surrender be not
presented till after his death
since 1 Vict. c. 26, a parol will of copyholds,
and a parol revocation of a will, not good,
235, n.

215

prior to the late stat. of 55 Geo. 3, c. 192, a
general devise of all real estates wonld not
have passed copyholds (but see Doe & Lud-
lam, infra)

236
unless under an evident or constructive inten-
tion
ib.
the intention was implied from a surrender to
will
236, 239
the cases of Chapman & Hart, and Byas &
Byas
236, 237
implied also when the testator had no freeholds,
237, 238
reference to Church & Mundy and Judd &
Pratt, &c.
ib.
presumption of the intention would

not have
been raised, even in favour of creditors,
where there were freeholds
236, 238
unless the freeholds were insufficient, 236, 238,
239
distinction between creditors, and wife or chil-
dren, in raising the presumption of intention,
238, 239
when the intention would have been presumed
from superadded words, such as "which I
have surrendered to the use of my will," or
"and which I have surrendered, &c.," or
"the copyhold parts thereof having been sur-
rendered, &c."
239, 240

the cases of Strutt & Finch and Oxenforth &
Cawkwell
240

DEVISE-(continued.)

the words "freehold and copyhold lands"
raised the presumption of passing unsur-
rendered copyholds, even if the testator
possessed others which had been surrendered,
Page 241

authorities and dicta which appeared to the
author to be irreconcilable with the case of
Doe & Ludlam, which decided that after the
act of 55 Geo. 3, c. 192, a general devise of
real estates would pass copyholds not surren-
dered to will, although the testator had free-
holds
241, &c.
the decision in Doe & Ludlam confirmed by
the Vice Chancellor
242, n.
the rule in Rose & Bartlett, 7 Car. 1, excluding
leaseholds from the operation of a general
devise of land, did not apply to leases for
lives
241, n.
whether under a general devise of lands, copy-
holds of inheritance and leaseholds for years
would have passed (Roe d. Pye v. Bird),
246, 247
whether the act of 55 Geo. 3 supplied a sur-
render in favour of a power of sale 247
or so as to defeat a widow's freebench
ib., n.
the construction is not governed by any express
legal terms, but the intention is the guide,

247

copyholds pass by the words "my copyhold
ground rent
ib., n.
the words " property," "estate," &c., may
pass the interest as well as the land.. 247,
248
whether the fee will pass to executors in trust
to sell, by the words "goods, chattels, estate
and effects"
248, n.
even the words "
personal estate or property
will pass copyholds, where the intention is
clear

248

Paris & Miller, in which the word "share
was held to pass the fee, decided on the ef-
fect of that word alone, and the devise being
of the actual existing interest 248, 249, n.
by 28 s. of 1 Vict. c. 26, the fee or other whole
estate passes without words of limitation, un-
less a contrary intention appears 249, n.
the whole remainder of all those lands, &c,
after a devise for life, held to pass a fee,

and of the words "all I am worth, &c." ib.
a charge which might continue beyond the life
of the devisee will induce the construction of
a fee
250
so also a charge in gross, or of debts, &c. ib.
but only where the devisee is charged person..
ally
250, n.
general words or terms of locality may restrain
the effect of the word "estate," &c. 250
but the words "all the said estates," engrafted
on a devise of "messuages, lands," &c. for
life, pass a fee
251

an estate in fee in a prior devisee, may be im-
plied from subsequent limitations
ib.

a fee will pass by an exception out of land
devised in fee
251, n.