Of customs running with the land. [66] and when that determined by her death, the second daughter was the eldest (k). There are some customs, as those of Borough-English and Gavelkind, which run with the land; so that the lands cannot be discharged of them by fine, rècovery, enfranchisement, or escheat, or any other mean than a positive act of parliament (). But this seems only to hold when the custom relates solely to the locality of the lands as if it be pleaded that all lands within the borough of B. descend to the youngest son; the lands must for ever remain within the borough of B. whether they escheat or become enfranchised, &c. and, consequently, within, and subject to, the custom. *(k) 1 Lev. 172. Newton & Shafto. And see 8 Vin. 9. Desc. (N. 11.) pl. 4. But if the eldest daughter had died, leaving a daughter who survived the grandmother, she should have had the lands jure representationis. See Godfrey & Bullock, ante, p. [60-1]. (1) Robins, Gav, b. 1. c. 5. p. 52. But 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, it would be otherwise; for the moment such lands become enfranchised, they would of neces sity cease to be copyhold, and to be parcel of the manor; and, consequently, without the custom. The scite of the lands cannot be changed; and, consequently, the custom attached to that scite must continue. But a custom attached to the tenure of the lands must be gone on the destruction of that tenure. If the lord purchase a copyhold within his manor or borough, where the custom runs with the land, the descent, it is said, shall remain as before (m). But the consequence of this might eventually be curious. Suppose the manor to descend to the heir at common law, and the purchased lands to the younger son, and the lord die; now the manor would go to one person, and the [ 67 ] (m) See Robins. Gavelk. 70. 73. & qu. freehold of the purchased lands to another; and so the demisable quality of the lands. would for ever be gone: as the lord could not grant the lands of another person to be held of himself by copy, and the younger son is not lord of the manor to grant. But if the manor and such purchased lands had gone together, the lands might have been granted by copy after the purchase (n). L (n) Ante, vol. 1. ch. 2. p. [36]. CHAP. III. OF FREEBENCH. [68] FREEBENCH is that estate which, by the what. For the term is equally applicable to the estate of the husband as to that of the widow; and anciently it was equally applied to the former as the latter (a): though of (a) Vide Mich. 9 Ed. 3. pl. 44. fol. 38. a. and Robins. Gav. b. 2. c. 1. p. 136. So the estate of the husband was called his dower. Vide M. 9 Ed. 3. ubi supra. And hence Rastal, in his Table or Index to Fitzherbert's Abridgment, begins [69] later days the estate of the husband has been denominated his curtesy, while the term of freebench has been confined to the widow's estate. On the widow or husband acceding to the estate on the death of the other, such widow or husband immediately becomes a tenant of the manor, and enabled to sit on the homage as one of the pares curiæ. Hence the widow or husband was denomi nated a bencher (b): and hence the etymology of the term (c). But though the term of Freebench is now the head of Dower with "Dower par le Courtesy." Widowers or widows to have an abatement of rent. See Appendix, No. II. Customs of Yetminster prima. (b) See ante, vol. 1. p. [272-4]. (c) Hence also the bench of judges, or justices, in the other courts: the King's Bench, and Common Bench, &c. "Thou robed man of justice, take thy place;And thou his yoke-fellow of equity, Bench by his side." Shakespeare, Lear, act 3. sc. 6. |