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of mesne or of ward (1); in account against guardian in socage, or bailiff of a manor (m); in a writ of admeasurement of pasture (n); and in partition (0), the land being collaterally, though not directly in question. It has been said to be a good plea also in assize by tenant by elegit, the statute giving an assize to such tenants not extending to ancient demesne lands (p); but the case of Smith v. Arden (9) fully decided that ancient demesne lands might be extended on an elegit, under the statute of 13 Ed. I., neither the freehold nor the possession being removed by such execution.
When ancient demesne is pleaded, it is essential to allege that the lands are held of some manor which is ancient demesne, and not that they are parcel of such manor, for that would imply that they were part of the demesnes, and pleadable only at common law (r). And when lands are pleaded in a real action as being frank-fee, though held of a manor which is ancient demesne, it should seem that it is not sufficient for the demandant to say that the lands are frank-fee, but that he must plead specially how they became so (s).
pl. 4, cites 40 E. 3, 4; 4 Inst. 270; Al- (r) Br. Aunc. Dem. pl. 34, cites 41 den's case, 5 Co. 105 a; Cox v. Barnsly, Ass. 7 ; ib., pl. 6, cites 41 E. 3, 22; 11 Hob. 47; Owen's case,
Ow. 24; Godb. Co. 10 b, cites also 48 E. 3, 11 a, b; Fitz. 64, ca. 76; Scroggs, 123; F. N. B. 11 Aunc. Dem. 9; Kitch. 193, cites 36 H. L. n. (a). And even after a deliverance 6, 18; Brittel v. Bade (or Dade), 1 Lord made in replevin, 30 E. 3, 12 b; 1 Roll. Raym. 43; 1 Salk. 186; Kite v. Laury, Abr 324, (H.), pl. 2.
3 Salk. 34; Baker v. Wich (or Winch), (l) But see reference to 3 & 4 Will. 4, 1 Salk. 56; S. C. Comb. 186; S. C. (Parc. 27, by which the writ of right of ward ker v. Winch), 12 Mod. 13. See the was abolished, ante, p. 585, n. (d). pleadings in this case, (called Barker v.
(m) 4 Inst. 270; Alden's case, sup. ; Winch,) Lex Man. App. p. 24, pl. 7. Vide Hob. 47.
also Hatch v. Cannon, 3 Wils. 51; Doe (n) 8 H. 6, 34; Br. Aunc. Dem. pl. d. Morton v. Roe, 10 East, 524. 20, 37; 1 Roll. Abr. 322, pl. 9.
Note. It is said that land may be an. (0) Grace v. Grace, Tr. 12 Jac. 1 Roll. cient demesne, though parcel of a manor Abr. 322, pl. 10; Pont v. Pont, Sir T. R. which is not ancient demesne; 1 Roll. Abr. 249. But see reference to 3 & 4 W. 4, 321 (A.), pl. 1, cites 30 E. 3, 12. And c. 27, by which the writ of partition was see 2 Leo. 191; but see ante, p. 579; 2 abolished, ante, p. 585, n. (d).
Burr. 1048; Hopkins v. Pace, 1 Sho. 271. (p) Br. Aunc. Dem. pl. 33; ib., Parle- (8) Kitch. 193, cites 41 E. 3, 22; 12 ment & Statutes, pl. 81, cites 22 Ass. 45. Ass. 16; 22 Ass. 45. And see 2 Vin. Abr. Anc. Dem. (E.), As wastes are part of the demesnes of a pl. 15, marg.
manor, approvements by the lord cannot (9) Vide the reference to sec. 11 of 1 be ancient demesne; 5 Ass. 2; 1 Roll. Abr. & 2 Vict. c. 110, ante, p. 571, n. (r); 321 (A.), pl. 2; F. N. B. 14 D, n. (a). ante, pt. 1, p. 47, n. (o); Cro. Eliz. 826; “ Frank-fee may be held of a manor of 5 Co. 105; 2 And. 178. And see Cox ancient demesne,” Kitch. 193, cites 11 H. (or Coke) v. Barnsly, Hob. 47; S. C. 1 4, 85. And see 1 Roll. Abr.. 321 (A.), Brownl. 234; Martin v. Wilks, Mo. 211; pl. 1; Br. Aunc. Dem. pl. 15; Comb. Hut. 117; ante, p. 572, tit. “Customary 183, in Heydon & Pace. Freeholds."
Br. Court Baron, pl. 3, cites 7 H. 4, 27,
But ancient demesne was not a good plea in an assize by tenant by statute merchant, &c., as a chattel interest only was demanded, and not the freehold (t). Nor can it be pleaded in waste upon the statute of Gloucester (u), for the sheriff cannot be commanded by the court of ancient demesne to inquire of the waste (x).
Nor can it be pleaded in trespass (y); nor in debt in the superior courts for damages recovered in the court of ancient demesne (z); nor in detinue of charters (a); nor in a warrantia charta (6); nor in a quare impedit, for the court cannot write to the bishop (c); nor by the lord in an action against him, for the land is frank-fee in his hands (d); nor in an action against the lord and others (e); nor for a lessee for years (); nor for a copyholder (9). that if land and damages are recovered in (y) See extract from the stat. of Glouassize in ancient demesne court on exe- cester, [6 Edw. 1, c. 5, “Waste,"] ante, cution, the bailiff may sell the beasts and pt. 1, p. 424, n. (o); 46 E. 3, 1; 2 H. deliver the money to the recoveror in exe- 7, 17; Br. Aunc. Dem. pl. 7, 36 ; Smith cution of his damages; and per Huls, that v. Arden (or Alden's case), ubi sup.; Cox if a man recover damages in ancient de- (or Coke) v. Barnsly, Hob. 47; S. C. 1 mesne, the bailiff may make execution in Brownl. 234; Rodd v. Lord Coningsby, land which is frank-fee held of the manor. Bunb. 132; 1 Roll. Abr. 322 (E.), pl. 11,
(1) 2 E. 2; 1 Roll. Abr. 323, pl. 15; 12, 13; Kitch. 188, cites 46 E. 3, 1; 47 2 Inst. 397; Martin v. Wilks, Mo. 211; E. 3, 22; 2 Vin. Abr. 482, 483, pl. 11, 2 Vin. Abr. 484, pl. 15.
12, 13; 4 Inst. 270. (u) 7 H. 6, 35. By the opinion of all (z) 39 H. 6, 3; Kitch. 189. the court except Walmsley; Owen's case, (a) 1 Roll. Abr. 323 (E.), pl. 14; Kitch. 36 Eliz. Ow. 24, cites 2 H. 7, 17; 21 E. 189. 4,3. Per three justices (Walmsley doubt- (6) F. N. B. 135, K ; Kitch. 189. ing), in Green v. Baker, M. 37 Eliz. 1 (c) 1 Roll. Abr. 323, pl. 17, cites 7 H. Roll. Abr. 323, pl. 18; Lex Man. 40; 6, 35; Br. Aunc. Dem. pl. 20; Hob. 48, contra, Br. Aunc. Dem. pl. 37, cites 8 H. in Cox v. Barnsly. Nor in an action up6, 34; ib., pl. 20, cites also 7 H. 6, 35; on the stat. 5 R. 2; Kitch, 188, 189, cites ib., Parlement, pl. 17; Kitch. 189, cites 2 H. 7, 17; 21 E. 4,3; Hob. 47. Nor 7 H. 6, 37; 8 H. 6, 83. And see Cro. in a juris utrum of his free alms, 32 E. 1; Eliz. 826, in Smith v. Arden; Cox v. 2 Vin. Abr. 483, pl. 16; 1 D'Anv. 659, Barnsly, Hob. 47, 48.
pl. 16; Kitch. 189. (x) 2 Inst. 306; 2 Saund, 254, in Green (d) 41 E. 3, 22; 1 E. 3, 14; F. N. B. v. Cole, action of waste upon the statute 11 (M.); 1 Roll. Abr. 323 (G.), 325 (I.), does not lie in ancient demesne ; Br. Par- pl. 19; 2 Vin. Abr. 487 (G.), pl. 2, and lement, pl. 17, cites 8 H. 6, 35. For the marg court cannot award process to the sheriff (e) 41 E. 3, 22 ; 1 Roll. Abr. 323 (G.), to inquire of waste; “ but waste lies by pl. 3; 2 Vin. Abr. 487 (G.), pl. 3. writ of right there, and shall have process (f) 41 E. 3, 22 b; 1 Roll. Abr. 323 at common law, viz. distress infinite, quære (G.), pl. 1; Fitz. Abr. Aunc. Dem. inde, for writ of waste was not at common
pl. 9. law;" Br. Aunc. Dem. pl. 40, cites 32 H. (8) Smith v. Frampton, 3 Lev. 405; 6, 25 ; ib., Waste, pl. 141, cites S. C. Brittle v. Bade (or Dade), 1 Ld. Raym. (called by error 23 H. 6, 25.) Vide also 43; 1 Salk. 186. And see Wilkins v. on this plea in waste, 2 Vin. Abr. 484, Gregory, Cary, 121, 122. 5, pl. 18, 22
It may here be proper to repeat that in all actions concerning copyholds it is essential that the copyhold tenure should be pleaded ; and this rule of course extends to copyhold lands held of a manor which is ancient demesne: if, therefore, they are stated to be held of A. of his manor of B., which is ancient demesne, it would have been considered that the lands were pleadable in the lord's court by writ of right close (h); and if pleaded that they are parcel of the manor, it must be understood that the lands are part of the demesnes, and therefore, together with the manor, impleadable only at common law (i).
The author will conclude his observations on the doctrine of pleading in cases affecting tenants in ancient demesne, or their lands of that tenure, by noticing that it is not necessary, in order to establish an exemption from toll in respect of an estate held in ancient demesne, to set forth what interest the tenant has in the particular lands; and the allegation that the tenants of ancient demesne lands are quit of toll in all places in England is sufficient, though they are only discharged of toll as to such things which arise on the lands, or are for the necessary support of their families (k); and that where in trespass for erecting a stall in the market place, the defendant, a butcher, pleaded in bar a custom for the tenants in ancient demesne to erect stalls, &c., and to be quit of stallage for their goods sold therein, and that he did on a certain day set up a stall there to sell flesh ; this was on demurrer adjudged to be an ill plea, the defendant pot setting forth that the stall was set up to sell his flesh, and it might have been the flesh of another butcher, and so not within the custom (1).
Of Fines and Recoveries (m). Fines might formerly have been levied and recoveries suffered of
(h) Which writ we have seen could not See the pleadings in this case, Lex. Man. have been maintained by a copyholder, App., p. 27, ca. 9. ante, p. 566, n. (p), 582.
(m) By 3 & 4 W. 4, c. 74, (see Ap(i) Brittle v. Bade (or Dade), sup. ; pendix), it was provided that no fine Doe d. Rust v. Roe, 2 Burr. 1046; Kite should be levied or common recovery suft. Laury, 3 Salk. 34; Baker v. Wich (or fered after the 31st of December, 1833 ; Winch), or Parker v. Winch, 1 Salk. 56; and that tenants in tail should have power Comb. 186; 12 Mod. 13; Smith v. Framp- to dispose of the lands entailed, either in ton, sup. ; ante, p. 589; ante, pt. 1, p. fee simple or for any less estate ; but in 512.
the case of tenants in tail in remainder, (k) Savery v. Smith, 2 Lutw. 1144 ; and other cases mentioned in the act, SC. 3 Salk. 36. See the pleadings in certain persons are therein denominated this case, Lex Man. App., p. 29, ca. 10; protectors, and required to give their conante, pp. 582, 583.
sent to such disposition. (1) Chafin v. Betsworth, 3 Lev. 190. And by the same act (sec. 4), a provision
lands in ancient demesne in the court of the manor upon a writ of right close (n); and the fine might have been sur concessit as well as sur conuzance de droit (o); and if pleaded in placito conventionis secundum consuetudinem maneriï it was sufficient, though not said to be upon a writ of right close (p).
But it should seem that a fine levied in the lord's court by tenant in tail was a discontinuance only, and no bar (9), for that was only when the fine was levied in the Court of Common Pleas with proclamations by virtue of the statute of 4 H. 7 ; yet it has been doubted whether by custom a fine with proclamations in the manor court, was not a bar, notwithstanding the statute de donis (r); but the better opinion was that it was no bar even by custom (s). A fine by tenant in tail levied in the Court of Ancient Demesne would however have been a bar to the issue in tail, under the statute of limitations, 21 Jac.; but where the tenant in tail leased for three lives by a fine sur concessit, the court held that the issue in tail, notwithstanding a second fine levied to enure to the conuzee in fee, had a right of entry for twenty years after the expiration of the lease for lives, when the discontinuance determined, and therefore that the plaintiff was entitled to recover in ejectment, even supposing his lessor to be barred of a formedon, by twenty years having passed after the right of action accrued (t).
And a recovery suffered in the Court of Ancient Demesne accord
was made that no fine or recovery levied or suffered in a superior court, of lands of ancient demesne tenure, should be reversed upon a writ of disceit, except as to the lord of the manor.
And also (sec. 5), that a fine or recovery of ancient demesne lands levied or suffered in the manor court, after a fine or recovery thereof in a superior court, should be as valid as if the tenure had not been changed by such prior fine or recovery.
And likewise (sec. 6), that in every case in which the tenure of ancient demesne might have been suspended or destroyed by a fine or recovery in a superior court, provided that the lord of the manor should not have reversed the same prior to the 1st of January, 1834, and that he was not barred of his right to reverse such fine or recovery by any law in force on the first day of the then session of parliament, and provided that the right of the lord should in any manner have been recognised within 20 years immediately preceding the 1st of
January, 1834, such lands should, from the last mentioned day, again become parcel of the manor: and that no writ of disceit for the reversal of any fine or recovery should be brought after the 31st of December, 1833; vide also 3 & 4 W.4, c. 27, s. 36, in the Appendix, by which the writ of disceit was abolished from the 31st of December, 1834; ante, pt. 1, p. 473 et seq.
(n) 2 Inst. 513; 1 Cru. 86; Hunt v. Bourne (or Burn), 1 Lutw. 770, 781; S. C. 57, 244, 339, 422; S. C. (Hunt v. Browne), 3 Salk. 34; S. C. 1 Comy. 93.
(0) 1 Lutw. 770, 771, in Hunt & Bourne.
(p) Ib. 781.
(9) Hunt v. Bourne, sup. A discontinuance is no longer a bar to a right of entry, see 3 & 4 Will. 4, c. 27, s. 39, ante, p. 569, n. (h); pt. 1, p. 46, 47.
(r) Elmes' case, Dy. 373 a; S. C. 1 And. 71.
(s) 2 Inst. 515; 4 Inst. 270.
ing to the custom of the manor, was a bar to an entail, equally with a recovery of socage lands in the Common Pleas (u).
A recovery might have been suffered or a fine levied of lands held by the tenure of ancient demesne in the Court of Common Pleas (v); yet the jurisdiction of the court has been doubted (w), without, however, any apparent good reason; but as the effect of such a recovery and fine was to make the lands frank-fee so long as they stood in force (y), and therefore operating to the lord's prejudice, he might have reversed the same by writ of disceit (2), but not by a scire facias (a); and the rule extended to the king when lord of such a manor as well as a private person (b).
As far as respected the lord, the fine in the Court of Common Pleas was coram non judice, and consequently no bar to him under the statute of non-claim (c), or the statutes of limitation (d); for a fine might have established the right of another, but could not have established its own defects (e). Some doubts however have been en
(u) Hunt v. Burn (or Browne), 1 Salk. Comyns, ib. 374; Griffith & Agard, 3 57; 3 Salk. 34; and see Kitch. 190, cites Leo. 117: in this case it was held to be 50 Ass. 9; 2 Cru. 162; Green v. Proude, sufficient that the words “cujus hæres ipse 1 Mod. 117; 3 Keb. 310; 1 Vent. 107; est " were in the body of the writ without in this case the court rolls being destroyed, stating in the beginning of the writ, that a copy of a recorery of an ancient date the plaintiff was cousin and heir, &c.; and under the steward's band was admitted as that the allegation de antiquo dominico evidence; but see ante, p. 591, n. (m). domina reginæ Anglia was good, without
(v) Kitch. 191 ; Preston on Conv. 1 saying coronæ suæ, &c. And the author apvol. p. 266; but see ante, p. 591, n. (m). prehends that the writ was not in the na
(1) 1 Cru. 86; and see 2 Inst. 513. ture of a writ of error, and consequently
(y) 2 Inst. 513; 4 Inst. 270; Kitch. that the limitation of twenty years, by 10 191, 192; 1 Roll. Abr. 324 (I.), pl. 1 to 7 & 11 Will. 3, c. 14, did not extend to the incl.; Br. Aunc. Dem. pl. 12; Fitz. Abr. writ of disceit; and see 2 Preston on Conv. Cause de remover plee, pl. 10; 1 Salk. 57, 102. For the form of the writ of disceit, in Hunt v. Burn; ante, p. 565, n. (o). vide 1 Lutw. 711 ; but see reference to So equally in a recovery at the common the act of the 3 & 4 Will. 4, c. 27; and 3 law in an assize, 11 Hen. 4, 86; 2 Vin. & 4 Will. 4, c. 74, ante, p. 591, n. (m). Abr. 488, pl. 4. So a recovery in a pre- (a) Zouch v. Thompson, 3 Lev. 419. cipe quod reddat, F. N. B. 13 C.; but the (6) 7 Hen. 4, 27; Br. Aunc. Dem. pl. lands were not frank-fee before judgment, 13; ib. 15, cites 11 Hen. 4, 85; F. N. B. 2 E. 3, 26; Kitch. 191. A fine levied in 97 D. (n. b & c); Rex o. Mead, 2 Wils. C. B. by tenant in ancient demesne, in a 17; Stowel v. Lord Zouch, Plowd. 370; warrantia charta, did not make the land 1 And. 74. frank-fee, for the land did not pass by it; (c) Zouch v. Thompson, 1 Salk. 210; 21 E. 3, 32 b.; 1 Roll. Abr. 324, pl. 6; S. C. 3 Salk. 35; S. C. Lord Raym. 179; 2 Vin. Abr. 488, pl. 6.
Cockman v. Farrer, Skin. 14; Plowd. 370; (3) 1 E. 3, 5, 26 b; 2 Vin. Abr. 497; 3T.R.173; and see 2 Vin. Abr. 497 (Q.); Zouch v. Thompson, 1 Salk. 210; 3 Salk. F. N. B. 13 C. (n. a). ; Br. Aunc. Dem. 35; Earl of Plymouth v. James, Lutw. pl. 39. 711; Humfry v. Bathurst, ib. 740; Rex (d) Com. Dig. 348, E. 2. v. Firebrass, Pra. Reg. C. P. 373; Rex v. (c) Zouch v. Thompson, sup. VOL. II.