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But if the plea of warrantia chartæ 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 chartæ 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(6). 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 (f). (a) F. N. B. 14 A.

ruling the first exception is, that it (6) Ante, p. 687. But as a copy

should be intended that the bailiffs holder cannot have a writ of Right were likewise suitors. Close, (ante, p. 691,) if one recover (d) 8 H. 6. 34. 1 Roll. Abr. 322. against him in ancient demesne by (E) pl. 1. See generally as to this writ of Right Close, he shall not have plea, Com. Dig. Anc. Dem. (F. 5.) a writ of false judgment, nor assign (e) 7 H. 6. 35. b. 1 Roll. Abr. this for error, for then he should be 322, pl. 7. Coke v. Barnsley, 1 restored to a freehold which he never Brownl. 234. So in assize of rent out lost. 14 H. 4. 34. The recovery,

of land in ancient demesne. Dy. 8, however, it seems would be void, pl. 14; but see Br. Aunc. Dem. pl. and might be avoided by plea. 1 H. 3. Ib. Priviledge, pl. 7. Vide post, 5. 12. F. N. B. 12 B. (n. b). pp. 701, 702, as to assize by tenant by

(c) Abrahall v. Nurse, 3 Leo. 63. elegit, and stat, merchant. S. C. Bendl. 279. In Lex Man. (f ) 8 H. 6. 1. 1 Roll. Abr. 322. p. 41, the reason assigned for over- (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 (); 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 affidarit 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, ton, Sir G. Cooke 43. Pease v. Badupon the return of the Grand Cape. title, Barnes 336. Bingham v. Barker, 8 H. 6. 1. 1 Roll. Abr. 324. (H) cited Barnes 187. Doe & Thomas, pl. 1. In formedon tenant not allow- Barnes 185. Deighton d. Roberts & ed to plead ancient demesne after Wife v. Forster, 2 Barnes 156. Denn the view. Fitz. Abr. Aunc. Dem. pl. d. Wroot v. Fenn, 8 T. R. 474. But 12, cites Hill. 50. E. 3. 10. Contra see as to country cause, Doe & Roin præcipe quod reddat. Br. Aunc. binson, 2 Str. 1120. The plea of anDem. pl. 10, cites 50 E. 3. 9. The cient demesne has been allowed after prayee

in aid shall not plead ancient imparlance. Marshall v. Allen, Latch demesne, because the tenant has af- 83. S. C. Palm. 406. S. C. Cro. Car. firmed the jurisdiction before by the 9. S. C. cited Willes 239. Dy. 210. aid prayer. Br. Aunc. Dem. pl. 15. b. pl. 27. Ib. 373. b. pl. 13. n. Com. 2 Vin. Abr. 488. (H) pl. 4.

Dig. Abatement (D. 1.); yet see (a) Smith v. Arden, Cro. Eliz. contrà in Replevin, Vincent v. Wallis, 826. S. C. 2 And. 178. S. C. (called Sty. 197. Vide also Hetl. 177. Clarke Alden's case), 5 Co. 105. S. P. Hob. v. Hampton, 4 Jac. cited in Marshall 47, in Cor v. Barnsly. 1 Bulst. 108. & Allen sup. Ante, pt. 1. p.

606. 2 Roll. Rep. 181. Comb. 40. 4 Inst. (d) Barnard. Rep. B. R. 7, 352, 270.

365. Andr. 368. 1 Sir W. Bl. 197. (6) Neither in such a case could Tidd's Pr. 680. [8th Ed.] the suitors of the manor court refuse (e) Smith v. Roe, sup.

Doe d. to execute a writ de procedendo ad Rust v. Roe, 2 Burr. 1046. Hatch executionem judicii. Gybon v. Bow- v. Cannon, 3 Wils. 51. Tidd's Pr. yer, Mo. 451.

680. [8th Ed.] But formerly the (c) Smith v. Roe, Barnes 331. affidavit was not thought necessary Sir G. Cooke's Rep. Pract. C. B. 103. in ejectment. Goodright v. Shuffill, Prac. Reg. C. P. 2. Holdfast v. Carl- 2 Lord Raym. 1418, cites Earl Co

where the four days would expire before cause could be shown and the plea pleaded (a).

An affidavit to verify the fact of the land being ancient demesne, would seem to be necessary in all cases where the plea is to the jurisdiction of the court, and therefore in a plea of ancient demesne in formedon (6); yet it was formerly held that foreign pleas only, and not pleas to the jurisdiction, were to be sworn to (c). It should certainly seem that the plea of ancient demesne is good without a defence (d).

Ancient demesne is likewise a good plea in replevin (e); in a writ of mesne or of ward (f); in account against guardian in socage, or bailiff of a manor (g); in a writ of admeasurement of pasture (h); and in partition (i), the land being col

a. 10

105. a.

ningsby's case. An affidavit that the ing that it is frank-fee. Br. Traverse lands are reputed to be ancient de

per &c. pl. 185. mesne would seem to be sufficient, (e) 4 H. 6. 19. 7 H. 6. 35. b. 21 there being a probable cause shown E. 3. 10, 51. 29 E. 3. 9. 30 E. 3. to plead it. Doe d. Henant v. Thomas 12. b. 2 H. 7. 17. 21 E. 4. 3. & others, Barnes 185.

H. 7. 14. 2 Vin. Abr. 482. pl. 5. (a) Doe d. Morton v. Roe, 10 Br. Aunc. Dem. pl. 4, cites 40 E. 3. East 523.

4. 4 Inst. 270. Alden's case, 5 Co. (6) Hatch v. Cannon, ubi sup.

Cox v. Barnsly, Hob. 47. And see 1 P. W. 476. Anon.

Owen's case, Ow. 24. Godb. 64, ca. (c) Cholmondley v. Broom, Carth. 76. Scroggs 123. F. N. B. 11 L, 402. S.C. 3 Salk. 173. S. C. 5 Mod. (n. a). And even after a deliverance 335. 12 Mod. 123. Vin. Abr. · Fo- made in replevin. 30 E. 3. 12. b. 1

reign Plea,' 1 Saund. 98. n. l. 1 Roll. Abr. 324. (H), pl. 2. Chitty on Plead. 429.

(f) But see reference to 3d & 4th Goodtille v. Rogers, Barnard. Rep. W. 4.c. 27, by which the writ of right B. R. 7. 2 Vin. Abr. 503. pl. 27. of ward is abolished after the 31st

(d) North v. Hoyle, 3 Lev. 182. Dec. 1834,) ante, p. 695. n. (f.) Smith v. Frampton, Ib. 405. Farrers (g) 4 Inst. 270. Alden's case, sup. v. Miller, 1 Sho. 386. But see S. C. Hob. 47. (Ferrer v. Miller), 1 Salk. 217, (h) 8 H. 6. 34. Br. Aunc. Dem. Carth. 221, where Holt, C. J., said pl. 20, 37. 1 Roll. Abr. 322. pl. 9. that the plaintiff might have refused (i) Grace v. Grace, Tr. 12 Jac. tne piea for want of a defence. 1 Roll. Abr. 322. pl. 10. Pont v.

In præcipe quod reddat ancient Pont, Sir T. Raym. 249. But see demesne a good plea, without travers- reference to 3d and 4th W. 4. c. 27,

And see

laterally 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 (a); but the case of Smith v. Arden (6) has fully decided that ancient demesne lands may be extended on an elegit, under the statute of 13 Ed. 1., 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 (c). 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 (d).

(by which the writ of partition is (Parker v. Winch), 12 Mod. 13. See abolished after the 31st Dec. 1834); the pleadings in this case, (called ante, p. 695. n. (f.)

Barker v. Winch,) Lex Man. Appx. (a) Br. Aunc. Dem. pl. 33. Ib. p. 24, pl. 7. Vide also Hatch v. CanParlement & Statutes, pl. 81, cites non, 3 Wils. 51. Doe d. Morton v. 22 Ass. 15. And see 2 Vin. Abr. Roe, 10 East 524. Anc. Demesne, (E) pl. 15. marg. Note, it is said that land may be

(6) Cro. Eliz. 826. 5 Co. 105. 2 ancient demesne, though parcel of a And. 178. And see Cox (or Coke) v. manor which is not ancient demesne. Barnsly, Hob. 47. S. C. 1 Brownl.

1 Roll. Abr. 321 (A), pl. 1, cites 30 234. Martin v. Wilks, Mo. 211. E. 3. 12. And see 2 Leo. 191. But Hut. 117. Ante, p. 679, tit. ' Cus- see ante, p. 687. 2 Burr. 1018. Hoptomary Freeholds.'

kins v. Pace, 1 Sho. 271. (c) Br. Aunc. Dem. pl. 34, cites (d) Kitch. 193, cites 41 E. 3. 22. 41 Ass. 7. Ib. pl. 6, cites 41 E. 3. 12 Ass. 16. 22 Ass. 45. 22. 11 Co. 10 b, cites also 48 E. 3. As wastes are part of the demesnes lla. b. Fitz. Aunc. Dem. 9. Kitch. of a manor, approvements by the 193, cites 36 H. 6. 18. Brittel v. lord cannot be ancient demesne. 5 Bade (or Dade), 1 Lord Raym. 43. Ass. 2. 1 Roll. Abr. 321 (A), pl. 2. 1 Salk. 186. Kite v. Laury, 3 Salk. F. N. B. 14 D. (n. a). 34. Baker v. Baker v. Wich (or Winch), 1 “ Frank-fee


be held of a maSalk. 56. S. C. Comb. 186. S. C. nor of ancient demesne,” Kitch. 193,

But ancient demesne is not a good plea in an assize by tenant by statute merchant, &c., as a chattel interest only is demanded, and not the freehold (a). Nor can it be pleaded in waste upon the statute of Gloucester (6), for the sheriff cannot be commanded by the court of ancient demesne, to inquire of the waste (c).

Nor can it be pleaded in trespass (d); nor in debt in the superior courts, for damages recovered in the court of ancient demesne (e); nor in detinue of charters (S); nor in a warran

cites 11 H. 4. 85. And see 1 Roll. Hob. 47-8. Abr. 321 (A), pl. 1. Br. Aunc. (c) 2 Inst. 306. 2 Saund. 254, in Dem. pl. 15. Comb. 183, in Heydon

Green v. Cole. Action of waste upon & Pace.

the statute does not lie in ancient Br. court baron, pl. 3, cites 7 H. demesne. Br. Parlement, pl. 17, cites 4. 27, that if land and damages are

8 H. 6. 35. For the court cannot recovered in assize in ancient de- award process to the sheriff to inmesne court, on execution the bailiff quire of waste; “ but waste lies by may sell the beasts, and deliver the writ of right there, and shall have money to the recoveror in execution

process at common law, viz. distress of his damages; and per Huls, that infinite, quære inde, for writ of waste if a man recover damages in ancient was not at common law." Br. Aunc. demesne, the bailiff

make exe-

Dem. pl. 40, cites 32 H. 6. 25. Ib. cution in land, which is frank-fee Waste, pl. 141, cites S. C. (called held of the manor.

by error 23 H. 6. 25). Vide also on (a) 2 E. 2. 1 Roll. Abr. 323, pl. this plea in waste, 2 Vin. Abr. 48415. 2 Inst. 397. Martin v. Wilks, 5, pl. 18, 22. Mo. 211. 2 Vin. Abr. 484, pl. 15. (d) 46 E. 3. 1. 2 H. 7. 17. Br.

(6) 7 H. 6. 35. By the opinion of Aunc. Dem. pl. 7, 36. Smith v. all the court, except Walmsley,

except Walmsley, Arden (or Alden's case) ubi sup. Cox Owen's case, 36 Eliz. Ow. 24, cites (or Coke) v. Barnsly, Hob. 47. S.C. 2 H. 7. 17. 21 E. 4. 3. Per three 1 Brownl. 234. Rodd v. Lord CoJustices (Walmsley doubting) in ningsby, Bunb. 132. 1 Roll. Abr. Green v. Baker, M. 37 Eliz. 1 Roll. 322 (E), pl. 11, 12, 13. Kitch. 188, Abr. 323, pl. 18. Lex Man. 40. cites 46 E. 3. 1. 47 E. 3. 22. 2 Vin. Contra. Br. Aunc. Dem. pl. 37, cites Abr. 482-3, pl. 11, 12, 13. 4 Inst. 8 H. 6. 34. Ib. pl. 20, cites also 7 270. H. 6. 35. Ib. Parlement, pl. 17. (e) 39 H. 6. 3. Kitch. 189. Kitch. 189, cites 7 H. 6. 37. 8 H. (f) 1 Roll. Abr. 323 (E), pł. 14. 6. 83. And see Cro. Eliz. 826, in Kitch. 189. Smith v. Arden. Cox v. Barnsly,

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