for not making claim, for owing to the privity of estate that is between him and the copyholder he might have made a claim as well as the copyholder himself. But a fine fraudulently levied by a copyholder who pretends no title to the inheritance will not bar the lord, for the Statute of Fines was intended "to avoid strife, and therefore cannot extend to estates by fraud” (k). And it has also been held that copyholds are within the seventh section of the Statute of Frauds (1), which requires all declarations of trust to be in writing (m). And in the same way general statutes made for the public advantage will be extended to copyholders, though only freeholders are named, as the Statute of Merton, 20 Hen. III. c. 4, and 13 Edw. I. c. 46, relating to inclosures of wastes by the owners leaving sufficient for the commoners (n).

(k) Fermor's case, 3 Rep. 77 a. (7) 29 Car. II. c. 3.

(m) Withers v. Withers, Amb. 151.

(n) See Shakespear v. Peppin, 6 T. R. 741; Grant v. Gunner, 1 Taunt. 435.

CHAPTER V.

Customary descent.

Freeholds may be subject to customs of descent.

THE DESCENT OF COPYHOLDS.

In the absence of a local custom of descent, and so far as such local custom does not expressly extend, copyhold lands are governed by the ordinary law of inheritance (a). Such special customs are strictly construed, so that if the actual words of a custom declare that in certain instances the land shall descend in a particular way, and there stop, if there be no person to answer the literal description, the common law must declare to whom the estate shall descend (b). The word "descent" may have a special meaning in a presentment or statement of a particular custom (c).

Freehold lands as well as copyholds are not unfrequently subject to particular customs of descent, and these are found in various ancient cities and boroughs, as well as in manors of ancient demesne and manors of the ordinary kind; but local customs of this kind can only be claimed for districts of certain kinds. "In a town which is neither city nor borough, the custom of gavelkind or borough-english cannot be alleged: but these are customs which may be in cities or boroughs; also if lands be within a manor, fee or seignory, the same may be of the nature of gavelkind or borough-english" (d). And the customary descent in gavelkind extends, as has been already men

(a) Denn d. Goodwin v. Spray, 1 T. R. 466.

(b) In re Smart, Smart v. Smart, 18 Ch. Div. 165.

(c) See Bickley v. Bickley, L. R. 4 Eq. 216.

(d) Co. Litt. 110 b.

tioned (e), through all lands in Kent which can be presumed to have Been originally held in socage. Such customs have been allowed in ancient districts of legal importance such as honours and sokes, which may comprise several manors, hundreds, castleries, and other lordships.

between customs as

The main difference between the customs extending to Difference freeholds and copyholds respectively, is that, in the first case, the custom will "run with the land" (f); and in the applying to case of copyholds, the custom being a part of the copyhold copyholds. tenure will disappear on enfranchisement or extinguish"There are customs," says

ment of the tenure (g).
Watkins, "such as borough-english and gavelkind, which
run with the land, so that the land cannot be discharged
of them by fine, recovery, enfranchisement, or escheat, or
any other means than a positive Act of Parliament" (h).
He points out that this would be the case where the
custom refers solely to the locality of the lands, but that
if it be pleaded that all lands held by copy of court roll,
or parcel of the manor of B., descend to the youngest son,
such lands when enfranchised would of necessity cease to
be copyhold. The passage, which the same writer cites
from Robinson on Gavelkind as if it had related to copy-
holds, appears rather to relate to a freehold, subject to a
custom running with the land (i).

freeholds and

Another point to be noticed is, that the word "gavel- What gavelkind" is applied in common parlance to all customs of kind implies. partible descent both in freeholds and copyholds (k); and in the same way the word "borough-english" is used as a general name for every descent to the youngest, although the term in its strict legal sense applies only to the

(e) Ante, pp. 8, 9.

(f) Co. Litt. 110 b. (g) See post, c. xi.

(h) Watk. Copyh. ii. 65, 66; Dickson's case, Hetl. 64, 65.

(i) See further as to customs

running with the land, Bro. Abr.

66

'Custom," 19, and "Extinguishment," 14, and Wiseman v. Cotton, 1 Sid. 135.

(k) See Wiseman v. Cotton, 1 Sid. 135.

What boroughenglish implies.

Varieties of local customs

youngest son, and not to females or collaterals; but the word "gavelkind" in pleading will imply nothing more than partible descent among males, and the word boroughenglish nothing more than descent to the youngest son, and all other varieties of customary descent must be specially described and proved (1).

The chief varieties of these local customs of inheritance

of inheritance. seem to be as follows:

Varieties of descent in gavelkind.

Borough. english.

(1.) Descent in Kentish gavelkind, or under similar customs, where the land descends in the same course as the ancient socage lands in Kent, the males in each degree taking as coparceners, and the custom extending to collaterals, subject in each case to the rule of representation (m).

(2.) Customs of the same nature as gavelkind, but less extensive; as that the partible descent shall only be for sons and not for males in any other degree, or that females shall never come into the inheritance, as in the manor of Tynemouth (n); or more extensive, as that females and males should share together, as is stated to have been the case in Wareham in Dorset (o); with other variations in other places, as that the land shall descend to the youngest son if it is under a certain value, but if worth more it is to be parted among all the sons (p). (3.) Borough-english proper, or the general custom of

(1) Clement v. Scudamore, 6 Mod.

120.

(m) As to the prevalence of these customs in ancient times, see Glanv. vii. c. 3; as to the Welsh varieties of gavelkind found at Chester, Usk, Trelleg, Archenfield, and in the Vale of Glamorgan, see Rob. Gav. i. c. 3; Taylor, Gav. c. 2; Elton, Tenures of Kent, c. 4; the statutes 27 Hen. VIII. c. 26; 34 & 35 Hen. VIII. c. 26; as to the Irish variety of gavelkind, the Case of Tanistry, Dav. 28 b; as to

Exeter, 23 Eliz. c. 12 (Pr.); as to Wareham (Dorset) and the Isle of Portland, Taylor, Gav. 101; as to the Soke of Oswaldbeck (Notts), 32 Hen. VIII. c. 29; as to Stepney and Hackney, 21 Jac. I. c. 6 (Pr.)

(n) See Newton v. Shafto, 1 Sid. 267; Sympson v. Quinley, 1 Vent. 88.

(0) Watk. Copyh. ii. 515, citing Plac. de Jur. et Ass. 16 Edw. I. (p) R. P. Comm. 1 Rep. App.

254.

borough-english, where the youngest son inherits his father's land. This custom occurs both in freeholds and copyholds, and there is no difference in the mode of its application to lands of different tenures, except that in the case of freeholds the custom runs with the land, and is not extinguished by a purchase on the part of the lord (q). The rules relating to gavelkind and borough-english lands are the same, except as to the quantity taken by the heir; in gavelkind each son as heir taking an equal part, but in borough-english the youngest taking the whole as heir. Borough-english, though very rare in Kent, is not absolutely unknown in the few copyholds which exist in that county (r), but prevails largely in the counties of Sussex and Surrey, and in the manors of Islington and Edmonton, near London (s).

youngest.

(4.) There are many special customs analogous to Varieties of borough-english proper to which that name is applied in descent to the common parlance, but which might appropriately be classified under the wider name of "junior right." It has been laid down that, the principal custom being confined to the case of sons, every variation must be specially pleaded and proved. There is an early case which gives a somewhat larger significance in pleading to the term borough-english. There it was said that "the law takes notice of the customs of borough-english and gavelkind, what they are, and the consequences of such customs: and though it be true that borough-english custom primâ facie gives only to the youngest son, yet upon that foundation of alleging it to be borough-english land, such an addition or enlargement of it, as to go to the youngest