Wiseman v Cotton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 306
COURT OF KING'S BENCH
wiseman against cotton. Lands disgavelled by Act of Parliament, yet the custom to devise remains. S. C. Kaym. 59, 76. 1 Sid. 77, 135. 1 Keb. 288, 372, 492, 505. Hard. 325. 2 Danv. 441. On a trial at Bar in a feigned issue, directed out of Chancery : the question was, If the lands in question having been gavelkind, and disgavelled by Act of Parliament in the time of Edward the Sixth are that notwithstanding devisable? And the case was found specially, that Roper being seized of the lands in question, which were then gavelkind and departible, it was on his petition enacted by Parliament, that his lands should be disgavelled to all intents and purposes, and descendible as lands at common law, to the eldest son only : and it was objected, that the custom to devise, is a custom of gavelkind, arid that by disgavelling the land the custom of devising is as well taken away as the custom of partibility; for it is a custom incident to gavel- 1LE7.80. MICH. 14 CAR. II. IN B. R. 307 kind ; and cited the Statute of the Customs of Kent, 13 E. and 4 E. 1, Com' Banco, Eot. 2. Fitz. Aid, 129, 144. East. Entries Dower Demand 6. 2 E. 4, 19. 5 E. 4, 8. Mich. 16 Jac. Com. Banco Rot. 3063. Mich. 21 Car. 1, Rot. 497. F. N. B. 198, &c. And that all their customs, to devise, to have dower, to lose dower, to be tenant by the curtesy, &c. are included in the custom of gavelkind; so that by the pleading of gavelkind, it ia sufficient without pleading of any such particular customs, to devise, to have dower, &e. Also by the words of the Act, the lands are not only to be dis-gavdled, but to be so to all intents ami purposes, by which words all the particular customs are taken away, if they had not been so by the general words before. But after two several arguments at the Bar, it was afterwards in Easter term, 15 Car. 2, adjudged, that [80] by this Act of disgavelling, the custom of devising was not taken away ; for by Foster, Twysden arid Mallett, it is a mere collateral custom, and...
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