case launder against brook and other a tenant in gavelkind by the custom of  ken have a power of devise of soccage land before the Henry c S C side f n b  Bl Com Com dig pow on Dev court of law take notice only of the general and not  of the special custom of gavelkind ante ejectment of land in ken whereof  William brook be seize in fee hold in soccage and of other land hold in capite  by his will in write devise the say soccage land to brook his base son and the  heir of his body the defendant pretend there be a custom in ken to devise land  in gavelkind hold in soccage the sole question be whether there be such a  custom or no for if not the plaintiff have good title and if such land be  devisable by custom before the Henry c then the defendant have good title the  defendant to prove the custom show that land in gavelkind be devisable by  custom a and that land in gavelkind may be give or sell without the lord  licence b Whitfield sergeant say he interpret the word give to be by will and  the word sell to be by deed and produce for evidence diverse will out of the  register office in Canterbury and Rochester of devise of land by testament in  the time of the king Henry Edward and Henry of several land in several village  in ken and show two verdict the one in James where in a trial at this bar the  title be find for the defendant that it be a good custom there and the other  verdict car at the common plea bar where title be find for the now defendant  that the land be devisable by custom and there be a book of report croak car  show where in Michaelmas term Elizabeth all the court of common plea agree  that such a custom be there but they say this custom ought to be plead and  that the land so devise be hold in soccage for although the court shall take  cognizance of the custom of gavelkind in ken without plead yet of this special  custom to devise c or that the land be hold in soccage or that the wife shall  have the moiety for her dower they ought not to take cognizance without  special plead they be particular custom but for the custom of gavelkind it  suffice to show that it be in ken and of the nature of gavelkind without plead  the custom for the court take knowledge what the custom of gavelkind be but  heath the king sergeant porter Twisden and den do much endeavour to disprove  the say evidence and to show there be no such custom to devise gavelkind land  hold in soccage and for proof thereof rely upon the yearbook of Edward  Mortdauncestor that a assize of mortdauncestor lie not of land revisable but  all the court resolve to the contrary that a assize of mortdauncestor lie of  land devisable if it be true that his ancestor die seize unless it appear that  the defendant claim by some other title but if the defendant plead that the  land be by custom revisable and be devise unto he it be a good bar of the  action second it be object that many will be make of gavelkind land where  general the land be in use and in the hand of feoff and many precedent be of  this kind the court answer thereto that the precedent show be devise of land  without mention they to be in the hand of feoff and they conceive they a  Fitzherbert nat short catalog b Lambert fol croak car er p may devise by the  custom and a precedent be produce out of Mr lambard of a testament of land in  gavelkind before the Conquest c but heath answer it be a ill precedent because  the husband and wife devise and it can stand with the law that the wife shall  join with the husband and Jones justice say that in Northwales there be much  land of this nature by custom devisable by write or without write and they for  the plaintiff show that in the common plea after the trial be have in this  court there be another trial in the common plea car by the knight esquire and  gentleman who find for the now plaintiff that there be not any such custom but  it be thereto answer in behalf of the defendant that Lord finch show his  dislike of that verdict and afterward car upon full evidence a verdict be give  for the defendant title that there be such a custom and that the land be  devisable by custom there and afterward the jury here go from the bar to  consider of this matter to sit curian the plaintiff be nonsuit