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and to tenants for life or years, or even at will(a). But the exemption from toll is only in respect of such things as arise or grow on the land, or as are bought for manuring it, or for the necessary use of the tenant and his family, and does not extend to general merchandize (6); but this was formerly doubted (c).
Whether merchandize or not is to be shown on the other side, so that the tenant may allege an exemption generally (d). He need not prescribe for the privilege, as it is incident to his estate, and it is sufficient to say that he is tenant and inhabitant within the manor of A., which is ancient demesne (e): And though safer to allege notice that he was tenant in ancient deinesne, it does not seem to be necessary (f).
Tenants in ancient demesne are also to be impleaded in the lord's court only by a writ of right close (g), directed to the lord of the manor, commanding him to do the tenant who prosecutes the writ, what is right in his court (h); and if tenants in ancient demesne are otherwise impleaded, they may plead their tenure in abatement of the suit, but this, as we shall presently see, is only where the realty may come in question.
(a) F.N.B. 228 D. Savery v. Smith, of Leicester, 2 Leo. 191, Shule, 2 Lutw. 1146. 2 Leo. 191. 2 Vin. Just. was of opinion,
" that Abr. 481 (C). 1 Roll. Abr. 322 (C). inhabitant within Ancient DeAnd to the lord himself, F. N. B. mesne, although he be not tenant, 228 B. Savery v. Smith, sup. Br. shall have the privileges." Auncien Demesne, pl. 43: (If he be (5) Savery v. Smith, sup. tenant also, 1 Roll. Abr. 322 D, cites (8) But see reference to the act of 9 H. 6. 25. b). See the form of the 3 & 4 W. IV. c. 27, post p. 695. writ of exemption from Toll, F. N. B. n. (f). 228. A.
(h) 2 Inst. 542. 4 Inst. 269. See (6) Ward v. Knight, Cro. Eliz. the forms of this writ. Reg. f. 9. 227. S. C. 1 Leo. 232-3. 2 Inst. 221. F. N. B. 11. A tenant in Ancient 1 Roll. Abr. 321 (B). 2 Leo. 191. Demesne may also have a bill of
(c) F.N.B. 228. A. & E. 1 Roll. fresh force in the court of Ancient Abr. 321 (B) pl. 2, 3.
Demesne, within forty days after (d) Lutw. 1146-7, in Savery v. disseisin, without any writ sued, Smith.
Kitch. 188-9. F. N. B. 13 E. Br. (e) Ib. In the case of the Town Aunc. Dem. pl. 1, cites 26 H. 8. 4.
Of the Writs of Monstraverunt; and de non ponendis.
Monstraverunt. Should tenants in ancient demesne be distrained by their lords to perform other customs or services than they and their ancestors have usually performed, they may be relieved by the writ of monstraverunt (a), founded on a petition and ordinance of Parliament (6), and directed to the lord, commanding him not to distrain contrary to such ancient usage, upon which another writ of monstraverunt may be sued, directed to the sheriff, commanding him to cause justice to be done, if the lord be disobedient.
But the lord cannot be put to answer the attachment, before the court be certified by the exchequer, that the manor is ancient demesne, therefore the plaintiff in the monstraverunt should sue a special writ to the treasurer and chamberlain of the exchequer, to certify the same (c).
Yet it seems that the certificate lawfully coming into court by certiorari and mittimus, is conclusive, though there be no issue joined, whether frank fee or ancient demesne (d).
The sheriff may make resistance and rescous to any distress by the lord; and in case of the lord's distraining again, the tenants may sue an attachment against the lord, returnable in the King's Bench or Common Pleas, and recover their damages (e). If the lord distrain them pending the attachment, they may have a special attachment directing the sheriff to make deliverance (F).
The writ of monstraverunt may be sued generally, without showing the names of the tenants, but in the attachment against the lord, the tenants suing it must be named (), or at
(a) See the forms of this writ, F. (d) Ib. n. a., cites 7 H. 6. 32. 39. N. B. 14, 15.
E. 3. 6. (6) 18 Ed. 1. 27. It should seem (e) F. N. B. 15 B. that the tenants may have this writ (5) F. N. B. 15 I. without being distrained, 40 Ed. 3. (g) Plowd. 129. F.N.B. 15 D., F. 44. F. N. B. 14 F.
And see 4 Inst. 269. (c) F.N.B. 16 C. See this writ. Ib.
least the tenants distrained after the prohibition are named by their proper names, and the others by the general words homines manerii(a).
But if one of those named in the attachment will not sue, he may be severed, and the death or nonsuit of one will not prejudice his companions, although the count in the monstraverunt be joint (6)
. And one tenant may sue the writ of attachment alone, by his proper name, and in the name of the other tenants by the above general words (c).
If frank tenants, and tenants by base tenure join in a monstraverunt, the writ shall abate only as to the latter (d).
De non ponendis. In case of being impannelled on any inquest, tenants in ancient demesne may have the writ de non ponendis in assisis et juratis, and if, in contempt of such writ, the sheriff will return them, they may have an attachment against him (e).
Of the Writ of Right Close (f ).
This writ has been said to be peculiar to lands in ancient
(a) F. N. B. 15 F. Those only (d) F. N. B. 16 E, F. who are specially named in the writ (e) 1 Nels. Abr. 212 (C) pl. 1. of attachment shall recover damages,
1 New Abr. 111(B.) pl. 2 marg. F. N. B. 16 B.
(f) By the 3d & 4th W. 4, c. 27, (6) F.N.B. 15 G. Ib. 16 E. For (referred to in pt. 1, p. 562, n. (d), though the count be joint, the tenures and which will be found in the Apare several, and so the torts and da- pendix,) the Writ of Right Close mages are several, Ib. n. b. The is abolished from the 31st of Dec. plaintiffs in the attachment may count 1834; but as the Act is not yet in opeseverally: And the day or place where ration, I think it right that my obthe lord distrained need not be alleged servations on that form of action in in the count. F. N. B. 16 A.
the last edition of this work, should (c) F. N. B. 15 H.
have a place in the present one.
demesne (a), but the observation would seem to be unfounded (6). The writ is directed to the lord of the manor, or sometimes to the bailiff, and he that brings it, may make protestation to pursue it in nature of what writ he pleases; either in nature of a proper writ of right, or of an assise of novel disseisin, cui in vitá, or any other real writ; and therefore it may be brought by tenant for life, in tail, or in dower (c).
The demandant in a writ of Right Close cannot remove the plea out of the lord's court for any cause (d). But the tenant may remove the same by recordare for several causes, as that the lands are frank-fee, and not ancient demesne (e); or that there be no suitors, or only one suitor (f); or from a just apprehension of partiality, as that the demandant is steward (8).
If the tenant for special cause remove the plea into the Common Pleas by recordare, although the plea be without writ, yet he cannot show new cause to retain the plea in C. B.; but if the cause be general, as that the tenant claims to hold at common law, there the tenant may show any special cause to prove the tenements frank-fee, as, for instance, a confirmation by the lord (h).
(a) Booth's Real Actions, 116. Ib. n. a. Inst. 269. But see 2 E. 3.
(6) The writ of right called præ- 29. cipe in capite, and which lies where () F. N. B. 13 B. & C. Booth, the lands are holden of the King 117. 4 Inst. 269. Com. Dig. Anin capite, as of his crown, is close, cient Demesne (G. 5). 2 Vin. Abr. F. N. B. 5 E. Reg. Brev. 4 b. 495-6. pl. 9. Booth's Real Actions, 87-8. The (f) F. N. B. 13 C. 4 Inst. 270. writ of Right Patent, indeed, when So, it should seem, if there are four brought in the King's court, quia suitors only. Br. Cause a remover dominus remisit curiam, is also close. plea 35. F. N. B. 13 C. marg. Booth's Real Actions, 87-8. And (g) Booth, 117. Rast. Ent. 242 b. see ante, p. 666. tit." Customary Free- The demandant being bailiff, does holds."
not seem to be a cause of removal. (c) F. N. B. 11 F. Booth, 116. F. N. B. 13 B. (n. a), cites 11 H.
(d) 34 H. 6. 35. 2 E. 3. 35. 6. 10. And see 3 H. 4. 14. 2 Vin, Abr. (1) F. N. B. 13 F. 495-6. pl. 9. marg. F.N.B. 13 B. cites 9 H. 6. 34-5. 21 E. 3. 32.
Ib. (n. a)
If the demandant and tenant put themselves upon the grand assize (a), or the tenant plead a foreign plea, or vouch a foreigner to warranty (6), then a supersedeas is to be granted out of Chancery to the lord of ancient demesne, or his bailiff (if the writ were so directed), to surcease ; and on such foreign voucher the defendant should sue his writ of warrantia charte against the vouchee, returnable in the Common Pleas, and then he may have the supersedeas out of Chancery to surcease, until the plea be determined in C. B.(c).
And if the lord or bailiff proceed after such writ sued forth, the tenant may have an attachment against him to answer the contempt in the Common Pleas, to the King and to the party (d). So if the record in ancient demesne is removed by recordare, and the lord or bailiff proceed in the plea, the tenant may sue a certiorari, directed to the justices of the Common Pleas, to certify the tenor of the record into Chancery, and of the removal ; and on the certificate into Chancery, the tenant shall have an attachment, returnable in the Common Pleas, to answer to the King, and to the tenant who sued forth the recordare (e).
(a) But where in a writ of Right 7. 29. Booth, 117. F. N. B. 13 Close the plaintiff made protestation H. (n. b). to sue in nature of a writ of right at (6) See as to voucher into the common law, and the tenant joined county by tenant in ancient demesne, the mise (or issue,] upon the mere the vouchee having nothing to be right, and put himself on the grand summoned by within the seigniory. assize, the record was removed by an Dy. 69 b. pl. 35. Vide also F. N. B. accedas ad curiam into the court of 13 G. (n. b). C. B., and it was held, that the (c) F. N. B. 13 G. & H. Br. tenant's putting himself upon the Aunc. Dem. pl. 35, cites 1 H. 7. 30. grand assize, was not a sufficient If the tenant plead bastardy, &c., a cause for removing the record, but supersedeas also goes to the lord to that he should have a jury in the surcease, for the court of Ancient nature of the grand assize; and a Demesne cannot write to the Bishop. procedendo was awarded. Stafford's Reg. 9 a. 1 Com. Dig. 354. case, Dy. 111 b. And see Lex Man. (d) F. N. B. 14 A. 41. Rast. Ent. 242. But see 1 H. (e) F. N. B. 13 H. VOL. II.