dies without issue, all the brothers shall inherit. And in default of brothers, their respective issue shall take jure repræsentationis; but then the nephews succeeding with their uncle, the descent is in stirpes, and not in capita." 124

"Neither is our custom of Gavelkind confined to inheritances in fee simple only; for though an estate-tail is a new kind of inheritance, introduced within time of memory by the statute de donis, yet if a man die seised of lands in Gavelkind in tail, whether general or special, all the sons shall inherit together as heirs of the body. . . for it is part of the old fee simple, though the tail be created de novo.' "125 (See also Sec. XIV.)

And it is the same in the case of descendible freeholds. The Act of 3 and 4 Will. IV, cap. 106 (A.D. 1833) now regulates the laws of Inheritance and Descent.

SEC. XI. "E des auaunditz tenemenz dont vn soule sute tant soulement soleit estre feit auaut, ne seit per la resoun de la partye fors vn soule sute faite sicome soleit auant, mes que touz les parceners facent contributioun a celui que face la sute pur eux."

"Even after partition of Gavelkind lands, but one suit shall be done for all the parceners for such tenements for which only one suit was before due; but all the parceners shall be contributory, according to their several portions, to him that does the suit for them." 126

At a period of our history when the suits and services imposed upon the land were of a most burthensome character, the exemption in the Custumal was one of great importance to the land-owner. At this period the lord held his manor-court (the court baron) every three weeks, the style of the court being "from three weeks to three weeks to be holden;" at which every tenant, holding lands of the lord within the manor, was bound personally to appear, to perform his suits and services, pay his quit-rents and relief (if any due), act as

124 Robinson on Gavelkind, p. 115.

125 Ibid., p. 119.

126 Ibid., p. 149.

one of the jury or homage in administering justice to the other tenants, present deaths and alienations by tenants, and protect the lord's demesnes, woods, and wastes from encroachments, and the like.

According to Lord Coke (1 Inst. 58")

nors.

"The court baron must be holden on some part of that which is within the mannor, for if it be holden out of the mannor, it is voyd; unlesse a lord, being seised of two or three mannors, hath usually, time out of mind, kept at any one of his mannors courts for all the said mannors, then, by custome, such courts are sufficient in law, albeit they be not holden within the several manAnd it is to be understood that this court is of two natures: the first is by the common law, and is called a court baron, as some have said, for that it is the freeholder's or freeman's court (for barons, in one sense, signifie freemen), and of that court the freeholders being suitors, be judges, and this may be kept from three weekes to three weekes. The second is a customary court, and that doth concerne copiholders, and therein the lord, or his steward, is the judge. Now as there can be no court baron without freeholders, so there cannot be this kind of customary court without copiholders or customary holders. And as there may be a court baron of freeholders only, without copiholders, and then is the steward the register, so there may be a customary court of copiholders onely, without freeholders, and then is the lord, or his steward, the judge. And when the court baron is of this double nature, the court-roll containeth as well matters appertaining to the customary court as to the court baron."

When, in addition to this constant suit and attendance of the freeholder in his lord's court, we consider that his personal attendance was frequently required at various other courts, as the TOURNE, which is a court of record holden before the sheriff" debet enim shiresgemot bis, hundreda et wapentachia duodecies in anno congregari," Co. 4 Inst. 259—i. e. "For the shiremot ought to be holden twice, and the hundred and wapentake courts twelve times in the year." Also at the COURT LEET, or View of Frankpledge (Francus plegius— Saxonicè Ƒneboɲogh, freboroe-Anglicè, freepledge), which is a court of record, at first derived and taken out of the Tourne, holden before the steward, who is judge thereof:-Lep, or ' leet, being a Saxon word cometh of the verb gelapan, or

zelepian (ze being added euphoniæ gratia), i. convenire, to assemble together, unde conventus. But "clericus ad letam venire non habet necesse, nisi ejus præsentia ex certis causis et considerationibus sit necessaria." 127 (Stat. of Marlebridge, cap. x, A.D. 1267.) The steward of this court must be learned in the law, for "Ignorantia judicis est calamitas innocentis." 128 The constables or petty constables are chosen by the common law, at the Leet or Tourne, and are, by the common law, conservators of the peace, and may take surety of the peace by obligation, and are as antient as Torns or Leets be. (Co. 4 Inst. 261-5.) Likewise at the COUNTY COURT, and at the HUNDRED COURT. As the Leet was derived out of the Tourn for the ease of the people, so this court of the hundred was derived out of the court of the county. There are constables of the hundred, commonly called chief constables, so named because constables of [upland] towns are called petit constables. These constables of hundreds were created by stat. 13 Edw. I, and their authority limited to five things:-1. To make the view of armour. II. To present before justices assigned, such defaults as they do see in the country about armour. III. To present defaults of suits of tourns. highways. v. To present all such as lodge strangers in uplandish towns for whom they will not answer. The petit constable is an officer by the common law. (Co. 4 Inst. 467.) Also at the court of the CORONER. And at the court of PEPOUDRES, vulgarly Pipowders. Curia pedis pulverisati, is incident to every fair and market, and so called because that for contracts and injuries done concerning the fair or market there shall be as speedy justice done for advancement of trade and traffic as the dust can fall from the foot, the proceeding there being de horá in horam (from hour to hour). It is a

IV.

Of

127 I. e., "A clerk or clergyman need not attend the leet, unless his presence be required for any particular cause."

128 I. e., "The ignorance of the judge is the calamity of the innocent."

court of record, holden before the steward of the court. (Co. 4 Inst. 271.) 129

When we consider, I repeat, the trouble, inconvenience, and expense sustained by the freeholder in attending so many courts, and the interruption to his agricultural and domestic pursuits, we may readily imagine that the privilege or exemption thus claimed by the Kentish men was one of real importance. That we may the better appreciate its importance, we will suppose that a tenant in Gavelkind dies, leaving six sons his coheirs: now, by the custom, one alone is competent to do suit and service at the lord's court, for the land, notwithstanding the partition, for himself and all his brethren, 'they contributing equally to the parcener who maketh the suite for them."

We must however observe that, by the statute of Merton, 20 Hen. III, cap. x (A.D. 1235)—

"It is provided and granted that every freeman which oweth suit to the country, trything, hundred, and wapentake, or to the court of his lord, may freely make his attorney to do those suits for him."

On this statute Lord Coke remarks:

"There be two kinds of suits-viz. suit reall, that is in respect of his resiance to a leet or tourne; and suit service, that is by reason of a tenure of his land of the county, hundred, wapentake, or mannor, whereunto a court baron is incident. Before this Act, every one who held by suit service ought to appeare in person, because the suitors were judges in those courts, otherwise he should be amerced. But this statute extends not to suit reall, because he cannot be within two leets. (Co. 2 Inst. 99.) Nor doth it extend to copiholders, but to freeholders only. And the freeholder must make a letter-of-attorney, which the steward ought to allow."

By the statute of Marlebridge (52 Hen. III, cap. ix, A.D. 1267) this Saxon privilege was extended to all freeholders. It provides

129 As by recent legislation most of these antient courts have become obsolete, I have merely noticed them, to throw some light upon the personal services with which our more remote ancestors were burthened.

"For doing suits unto courts of great lordes, or of meaner persons, from henceforth this order shall be observed-that none that is enfeoffed by deed from henceforth shall be distrained to do such suit to the court of his lord, without he be specially bound thereto by the form of his deed, these only except whose ancestors, or they themselves, have used to do such suit before the first voyage of the said King Henry into Britain, sithence which nine and thirty yeares and an half are passed, unto the time that these statutes were enacted. Likewise from henceforth none that is infeoffed without deed, from the time of the Conquest, or any other ancient feoffment, shall be distrained to do such suits, unless that he or his ancestors used to do it before the said voyage...... And if any inheritance whereof but one suit is due, descend unto many heirs as unto parceners, whoso hath the eldest part of the inheritance shall do that one suit for himself and his fellows, and the other coheirs shall be contributaries, according to their portion, for doing such suit. And if many feoffees be seised of an inheritance whereof but one suit is due, the lord of the fee shall have but that one suit, and shall not exact of the said inheritance but that one suit, as hath been used to be done before." (Co. 2 Inst:115.)

y

SEC. XII. "Ensement seient les chateus de Gauylekendeys parties en treis apres le exequies e les dettes rendues, si il eit issue mulier en vye, issi que la mort eyt la vne partie e les fitz e les filles muliers lautre partie, et la femme la tierce partie. Et si nul issue mulier en vie ne seit, eit la mort la meite, e la femme en vye lautre meytie."

This is an obsolete custom, and therefore requires but a short notice.

Lambard, after noticing this section of the Custumal, cites as follows from the Close Rolls, 9 Hen. III, memb. 13.

"Rex mandauit Vicecomiti Kanciæ quod omnia catalla quæ fuerunt Roberti Nereford in Heyham, Borham, &c. faceret esse in pace donec sciatur utrum filius et hæres dicti Roberti ea habere debeat aut alij pueri dicti Roberti unàcum eo, vel sine eo."

"The king hath commanded the Sheriff of Kent, that all the chattels which were of Robert Nereford in Heyham, Borham, &c. he shall cause to be in peace, until it shall be known whether the son and heir of the said Robert ought to have them, or the other sons of the said Robert, together with him, or without him."