(s) Rob. Gav. 46 (57, 3rd ed.).
(t) Sec Rob. Cav. 75 (94, 3rd cd.).
Tenure subject to the custom of borough-English pi-evails in several cities and ancient boroughs, and districts adjoining to them; the tenure is socage, but, according to the custom, the estate descends to the youngest son in exclusion of all the other children (z). The custom does not in general extend to collateral relations; but by special custom it may, so as to admit the youngest brother, instead of the eldest (a). Estates, as well in tail as in fee simple, descend according to this custom (b).
The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are denominated Terra Regis Edwardi, or Terras Regis (c). The tenants are freeholders (d), and possess certain ancient immunities, the chief of which is a right to sue and be sued only in their lord's court. Before the abolition of fines and recoveries, these proceedings, being judicial in their nature, could only take place, as to lands in ancient demesne, in the lord's court; but, as the nature of the tenure was not always known, much inconvenience frequently arose from the proceedings being taken by mistake in the usual Court of Common Pleas at Westminster; and these mistakes have given to the tenure a prominence in practice which it would not otherwise have possessed. Such mistakes, however, have been corrected, as far as possible, by the act for the abolition of fines and recoveries (e); and for the future, the substitution of a simple deed, in the place of those assurances, renders such mistakes impossible. So that this peculiar kind of socage tenure now possesses but little practical importance.
(u) An express saving of the custom of gavelkind is inserted in the act for the commutation of certain manorial rights, etc. Stat. 4 & 5 Vict. c. 35, s. 80.
(x) Kitchen on Courts, 200; Co. Litt. 140 a.
(y) See Bac. Abr. tit. Gavelkind (B) 3.
(z) Litt. s. 165; 2 Black. Com. 83.
(a) Comyns' Digest, tit. Bo-rough-English; Watk. Descents, 89 (94, 4th ed.). See Eider v.
Wood, 1 Kay & Johns. 644.
(b) Rob. Gav. 94 (120, 3rd edit.).
(c) 2 Scriv. Cop. 687.
(d) The account given by Black-stone of this tenure as altogether copyhold (2 Black. Com. 100) appears to be erroneous, though no doubt there are copyholds of some of the lands of such manors. 3rd Rep. of Real Property Commissioners, p. 13; 2 Scriv. Cop. 691.
So much then for the tenure of free and common socage, with its incidents and varieties. There is yet another kind of ancient tenure still subsisting, namely, the tenure of frankalmoign, or free alms, already mentioned (f), by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute 12 Car. II. c. 24, by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says (g), the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is moreover no chance of any escheat. This tenure is therefore a very near practical approach to that absolute dominion on the part of the tenant, which yet in theory the law never allows.
(e) Stat. 3 & 4 Will. IV. c. 74, 88. 4, 5, 6.
(f) Ante, p. 37.
(g) Litt. s. 135; Co. Litt. 67 b.