Gambar halaman
PDF
ePub

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 (b).

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 who are specially named in the writ of attachment shall recover damages, F. N. B. 16 B.

(b) F.N.B. 15 G. Ib. 16 E. For though the count be joint, the tenures are several, and so the torts and damages are several, Ib. n. b. The plaintiffs in the attachment may count severally: And the day or place where the lord distrained need not be alleged in the count. F. N. B. 16 A.

(c) F. N. B. 15 H.

(d) F. N. B. 16 E, F.

(e) 1 Nels. Abr. 212 (C) pl. 1. 1 New Abr. 111 (B.) pl. 2 marg.

(f) By the 3d & 4th W. 4, c. 27, (referred to in pt. 1, p. 562, n. (d), and which will be found in the Appendix,) the Writ of Right Close is abolished from the 31st of Dec. 1834; but as the Act is not yet in operation, I think it right that my observations on that form of action in the last edition of this work, should have a place in the present one.

demesne (a), but the observation would seem to be unfounded (b). 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 (g).

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. (b) The writ of right called præcipe in capite, and which lies where the lands are holden of the King in capite, as of his crown, is close, F. N. B. 5 E. Reg. Brev. 4 b. Booth's Real Actions, 87-8. The writ of Right Patent, indeed, when brought in the King's court, quia dominus remisit curiam, is also close. Booth's Real Actions, 87-8. And see ante, p. 666. tit." Customary Freeholds."

Booth, 116.

(c) F. N. B. 11 F. (d) 34 H. 6. 35. 2 E. 3. 35. And see 3 H. 4. 14. 2 Vin. Abr. 495-6. pl. 9. marg. F. N. B. 13 B.

Ib. n. a. Inst. 269. But see 2 E. 3. 29.

(e) F. N. B. 13 B. & C. Booth, 117. 4 Inst. 269. Com. Dig. Ancient Demesne (G. 5). 2 Vin. Abr. 495-6. pl. 9.

(f) F. N. B. 13 C. 4 Inst. 270. So, it should seem, if there are four suitors only. Br. Cause a remover plea 35. F. N. B. 13 C. marg.

(g) Booth, 117. Rast. Ent. 242 b. The demandant being bailiff, does not seem to be a cause of removal. F. N. B. 13 B. (n. a), cites 11 H. 6. 10.

(h) F. N. B. 13 F. Ib. (n. a) cites 9 H. 6. 34-5. 21 E. 3. 32.

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 (b), 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 chartæ 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 Close the plaintiff made protestation to sue in nature of a writ of right at common law, and the tenant joined the mise [or issue,] upon the mere right, and put himself on the grand assize, the record was removed by an accedas ad curiam into the court of C. B., and it was held, that the tenant's putting himself upon the grand assize, was not a sufficient cause for removing the record, but that he should have a jury in the nature of the grand assize; and a procedendo was awarded. Stafford's case, Dy. 111 b. And see Lex Man. 41. Rast. Ent. 242. But see 1 H.

[ocr errors]

7. 29. Booth, 117. F. N. B. 13 H. (n. b).

(b) See as to voucher into the county by tenant in ancient demesne, the vouchee having nothing to be summoned by within the seigniory. Dy. 69 b. pl. 35. Vide also F. N. B. 13 G. (n. b).

(c) F. N. B. 13 G. & H. Br. Aunc. Dem. pl. 35, cites 1 H. 7. 30. If the tenant plead bastardy, &c., a supersedeas also goes to the lord to surcease, for the court of Ancient Demesne cannot write to the Bishop. Reg. 9 a. 1 Com. Dig. 354.

(d) F. N. B. 14 A.

(e) F. N. B. 13 H.

VOL. II.

D

But if the plea of warrantia charta be discontinued in C. B. then the demandant may sue a writ out of Chancery, directed to the justices of C. B., to certify the King in Chancery if the plea of warrantia charta be pendent, or discontinued, so that if discontinued or determined, the court of Ancient Demesne may be directed to proceed in the plea (a).

We have already seen that a writ of error does not lie to reverse a judgment in a court of Ancient Demesne, but that the party may have a writ of false judgment (b). Where it was assigned for error, that the writ of Right Close was directed to the bailiffs, when it appeared by the record that the plea was holden before the suitors, and also that twelve recognitors only were returned, instead of twenty-four, the judgment of the manor court was affirmed (c).

When Ancient Demesne is a good Plea; and of the general rules of Pleading as to lands of that Tenure.

In all cases where a recovery against the tenant in ancient demesne could make his land frank-fee, there Ancient Demesne is a good plea (d): it may therefore be pleaded in bar in assize, or re-disseisin (e), and all real actions (ƒ).

(a) F. N. B. 14 A.

(b) Ante, p. 687. But as a copyholder cannot have a writ of Right Close, (ante, p. 691,) if one recover against him in ancient demesne by writ of Right Close, he shall not have a writ of false judgment, nor assign this for error, for then he should be restored to a freehold which he never lost. 14 H. 4. 34. The recovery, however, it seems would be void, and might be avoided by plea. 1 H. 5. 12. F. N. B. 12 B. (n. b).

(c) Abrahall v. Nurse, 3 Leo. 63. S. C. Bendl. 279. In Lex Man. p. 41, the reason assigned for over

ruling the first exception is, that it should be intended that the bailiffs were likewise suitors.

(d) 8 H. 6. 34. 1 Roll. Abr. 322. (E) pl. 1. See generally as to this plea, Com. Dig. Anc. Dem. (F. 5.)

(e) 7 H. 6. 35. b. 1 Roll. Abr. 322, pl. 7. Coke v. Barnsley, 1 Brownl. 234. So in assize of rent out of land in ancient demesne. Dy. 8, pl. 14; but see Br. Aunc. Dem. pl. 3. Ib. Priviledge, pl. 7. Vide post, pp. 701, 702, as to assize by tenant by elegit, and stat. merchant.

(f) 8 H. 6. 1. 1 Roll. Abr. 322. (E) pl. 2. 4 Inst. 270. It may be

Ancient demesne is also a good plea wherever the interest of the land is bound, or the realty by intendment may come in debate; as in an ejectment (a); but if not so pleaded it will be too late after judgment to take advantage of the change of tenure (b); and, indeed, it should seem, that in ejectment, it must be pleaded within the first four days of the term (c), and that the plea must be with leave of the court (d), on an affidavit stating, that the lands are holden of a manor which is ancient demesne, that there is a court of ancient demesne regularly holden, and that the lessor of the plaintiff has a freehold interest (e). But the plea may be filed de bene esse,

pleaded after a release of a default,
upon the return of the Grand Cape.
8 H. 6. 1. 1 Roll. Abr. 324. (H)
pl. 1. In formedon tenant not allow-
ed to plead ancient demesne after
the view. Fitz. Abr. Aunc. Dem. pl.
12, cites Hill. 50. E. 3. 10. Contra
in præcipe quod reddat. Br. Aunc.
Dem. pl. 10, cites 50 E. 3. 9.
prayee in aid shall not plead ancient
demesne, because the tenant has af-
firmed the jurisdiction before by the
aid prayer. Br. Aunc. Dem. pl. 15.
2 Vin. Abr. 488. (H) pl. 4.

The

(a) Smith v. Arden, Cro. Eliz. 826. S. C. 2 And. 178. S. C. (called Alden's case), 5 Co. 105. S. P. Hob. 47, in Cox v. Barnsly. 1 Bulst. 108. 2 Roll. Rep. 181. Comb. 40. 4 Inst. 270.

(b) Neither in such a case could the suitors of the manor court refuse to execute a writ de procedendo ad executionem judicii. Gybon v. Bowyer, Mo. 451.

(c) Smith v. Roe, Barnes 331. Sir G. Cooke's Rep. Pract. C. B. 103. Prac. Reg. C. P. 2. Holdfast v. Carl

ton, Sir G. Cooke 43. Pease v. Badtitle, Barnes 336. Bingham v. Barker, cited Barnes 187. Doe & Thomas, Barnes 185. Deighton d. Roberts & Wife v. Forster, 2 Barnes 156. Denn d. Wroot v. Fenn, 8 T. R. 474. But see as to country cause, Doe & Robinson, 2 Str. 1120. The plea of ancient demesne has been allowed after

imparlance. Marshall v. Allen, Latch 83. S. C. Palm. 406. S. C. Cro. Car. 9. S. C. cited Willes 239. Dy. 210. b. pl. 27. Ib. 373. b. pl. 13. n. Com. Dig. Abatement (D. 1.); yet see contrà in Replevin, Vincent v. Wallis, Sty. 197. Vide also Hetl. 177. Clarke v. Hampton, 4 Jac. cited in Marshall & Allen sup. Ante, pt. 1. p. 606.

(d) Barnard. Rep. B. R. 7, 352, 365. Andr. 368. 1 Sir W. Bl. 197. Tidd's Pr. 680. [8th Ed.]

(e) Smith v. Roe, sup. Doe d.

Rust v. Roe, 2 Burr. 1046. Hatch v. Cannon, 3 Wils. 51. Tidd's Pr. 680. [8th Ed.] But formerly the affidavit was not thought necessary in ejectment. Goodright v. Shuffill, 2 Lord Raym. 1418, cites Earl Co

« SebelumnyaLanjutkan »