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tia chartæ (a); nor in a quare impedit, for the court cannot write to the bishop (6); nor by the lord, in an action against him, for the land is frank-fee in his hands (c); nor in an action against the lord and others (d); nor for a lessee for years (e); nor for a copyholder (f).
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 will be considered that the lands are pleadable in the lord's court by writ of right close (g); 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 (h).
I shall conclude my 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
(a) F. N. B. 135. K. Kitch. 189. 323 (G), pl. 1. Fitz. Abr. Aunc.
(6) 1 Roll. Abr. 323, pl. 17, cites Dem. pl. 9. 7 H. 6. 35. Br. Aunc. Dem. pl. 20. (f) Smith v. Frampton, 3 Lev. Hob. 48, in Cox v. Barnsly. Nor in 405. Brittle v. Bade (or Dade), 1 an action upon the stat. 5. R. 2. Lord Raym. 43. 1 Salk. 186. And Kitch. 188-9, cites 2 H. 7. 17. 21 see Wilkins v. Gregory, Cary 121-2. E. 4. 3. Hob. 47. Nor in a juris (g) Which writ we have seen canutrum of his free alms. 32 E. 1. 2 not be maintained by a copyholder, Vin. Abr. 483, pl. 16. 1 D’Anv. ante, pp. 671 (n. b.), 691. 659, pl. 16. Kitch. 189.
(h) Brittle v. Bade (or Dade), (c) 41 E. 3. 22. 1 E. 3. 14. sup. Doe d. Rust. v. Roe, 2 Burr. F. N. B. 11 (M). 1 Roll. Abr. 323, 1046. Kite v. Laury, 3 Salk. 34. (G), 325, (I), pl. 19. 2 Vin. Abr. Baker v. Wich (or Winch), or Parker 487 (G), pl. 2 & marg.
v. Winch, 1 Salk. 56. Comb. 186. (d) 41 E. 3. 22. 1 Roll. Abr. 323 12 Mod. 13. Smith v. Frampton, (G), pl. 3. 2 Vin. Abr. 487 (G), pl. sup. Ante, p. 701. Anle, pt. 1, p 3.
606. (c) 41 E. 3. 22. b. 1 Roll. Abr.
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 (a): 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 not 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 (6).
Of Fines and Recoveries (c).
Fines are to be levied and recoveries suffered of lands in
(a) Savery v. Smith, 2 Lutw.
And by the same Act, (Sect. 4,) a 1144. S. C. 3 Salk. 36. See the provision is made that no fine or repleadings in this case, Lex. Man.
covery levied or suffered in a Appx. p. 29. ca. 10. Ante, p. 693. perior court, of lands of ancient de
(6) Chafin v. Belsworth, 3. Lev. mesne tenure, shall be reversed upon 190. See the pleadings in this case, a writ of disceit, except as to the Lex Man. Appx. p. 27. ca. 9.
lord of the manor. (c) But by 3d and 4th Wm. 4. c. And also, (Sect. 5,) that a fine or 74, see Appendix, it is provided that
recovery of ancient demesne lands no fine shall be levied or common re- levied or suffered in the manor court, covery suffered after the 31st Dec.
after a fine or recovery thereof in a 1833; and that tenants in tail shall
superior court, shall be as valid as if have power to dispose of the lands the tenure had not been changed by entailed, either in fee simple or for such prior fine or recovery. any less estate, but in the case of And likewise, (Sect. 6,) that in tenants in tail in remainder, and
every case in which the tenure of other cases mentioned in the Act, ancient demesne may have been suscertain persons are therein denomi- pended or destroyed by a fine or renated protectors, and required to give covery in a superior court, provided their consent to such disposition. that the lord of the manor shall not
ancient demesne in the court of the manor upon a writ of Right Close (a); and the fine may be sur concessit as well as sur conuzance de droit (6). And if pleaded in placito conventionis secundum consuetudinem manerii it is sufficient, though not said to be upon a writ of Right Close (c).
But it should seem that a fine levied in the lord's court by tenant in tail is a discontinuance only, and no bar (d), for that is only when the fine is 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, is not a bar, notwithstanding the statute de donis (e); but the better opinion is that it is no bar even by custom (f). A fine by tenant in tail levied in the court of Ancient Demesne would, however, be 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
have reversed the same prior to the s. 36, in the Appendix, by which the 1st of January, 1834, and that he writ of disceit is abolished from the was not barred of his right to reverse 31st December, 1834, such fine or recovery by any law in (a) 2 Inst. 513. 1 Cru. 86. Hunt force on the first day of the then y. Bourne (or Burn), 1 Lutw. 770, session of Parliament, and provided 781. S. C. 57, 244, 339, 422. S. C. that the right of the lord shall in any (Hunt v. Browne,) 3 Salk. 34. S. C. manner have been recognised within I Comy. 93. 20 years immediately preceding the (6) 1 Lutw. 770, 771, in Hunt & 1st of January, 1834, such lands shall, Bourne. from the last mentioned day, again (c) Il. 781, become parcel of the manor : And (d) Hunt v. Bourne, sup. that no writ of disceit for the rever- (e) Elmes' case, Dy. 373. a. S. C. sal of any fine or recovery shall be 1 And. 71. brought after the 31st of Dec. 1833 ; (f) 2 Inst. 515. 4 Inst. 270. vide also 3rd & 4th Wm. 4. c. 27.
to be barred of a formedon, by twenty years having passed after the right of action accrued (a).
And a recovery suffered in the court of Ancient Demesne, according to the custom of the manor, is a bar to an entail, equally with a recovery of socage lands in the Common Pleas (6).
A recovery may be suffered, or a fine levied, of lands held by the tenure of ancient demesne, in the court of Common Pleas (c); yet the jurisdiction of the court has been doubted (d), without, however, any apparent good reason; but as the effect of such a recovery and fine, is to make the lands frank-fee, so long as they stand in force (e), and therefore operating to the lord's prejudice, he may reverse the same by writ of Disceit (f),
(a) Hunt v. Bourne, ubi sup.
F. N. B. 13 C. But the lands are (6) Hunt v. Burn (or Browne) not frank-fee before judgment. 2 E. ] Salk. 57, 3 Salk. 34. And see 3. 26. Kitch. 191. A fine levied in Kitch. 190, cites 50 Ass. 9. 2 Cru. C. B. by tenant in Ancient Demesne, 162. Green v. Proude, 1 Mod. 117. in a warrantia charlæ, does not make 3 Keb. 310. Vent. 107; in this the land frank-fee, for the land does case the court rolls being destroyed, not pass by it, 21 E. 3. 32 b. 1 Roll. a copy of a recovery of an ancient Abr. 324, pl. 6. 2 Vin. Abr. 488. date under the steward's hand, was pl. 6. admitted as evidence. But see ante, (S) 1 E. 3. 5. 26 b. 2 Vin. Abr. p. 704 (n. c.)
497. Zouch v. Thompson, 1 Salk. (c) Kitch. 191. Preston on Conv. 210. 3 Salk. 35. Earl of Plymouth 1 vol.
v. James, Lutw. 711. Humfry v. (n. c.).
Bathurst. 16. 740. Rex v. Fire(d) 1 Cru. 86. And see 2 Inst. brass. Pra. Reg. C. P. 373. Rex 513.
v. Comyns. Ib. 374. Griffith & (e) 2 Inst. 513. 4 Inst. 270. Agard, 3 Leo. 117: In this case it Kitch. 191, 192. 1 Roll. Abr. 324
was held to be sufficient that the (1), pl. 1 to 7 incl. Br. Aunc. Dem. words cujus hæres ipse est' were in pl. 12. Fitz. Abr. Cause de re- the body of the writ without stating mover plee, pl. 10. 1 Salk. 57, in in the beginning of the writ, that Hunt v. Burn. Ante, p. 671 n. (a.) the plaintiff was cousin and heir, So equally in a recovery at the com- &c.; and that the allegation de anmon law in an assize, 11 H. 4. 86. tiquo dominico dominæ reginæ Angliæ 2 Vin. Abr. 488. pl. 4. So a re- was good, without saying coronæ covery in a præcipe quod reddat. suæ, &c. And I apprehend that the
but not by a Scire Facias (a); and the rule extends to the King, when lord of such a manor, as well as a private person ().
As far as respects the lord, the fine in the court of Common Pleas is 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 may establish the right of another, but cannot establish its own defects (e). Some doubts, however, have been entertained, whether a second fine in the court of Common Pleas would not operate as a bar to the lord, under the statute of non-claim, after five years (f); and it should certainly seem, that a fine of elder date will hinder the reversal of a fine of later date by writ of disceit, but not e converso (8).
The lord in pleading need not set forth any estate, it being sufficient that he is dominus pro tempore (h); even a termor may have the writ of disceit (°). And if the lord's estate be
writ is not in the nature of a writ of Skin. 14. Plowd. 370. 3 T. R. 173. error, and consequently that the li- And see 2 Vin. Abr. 497 (Q). mitation of twenty years, by 10 & F. N. B. 13 C. (n. a). Br. Aunc. 11 W. 3. c. 14, does not extend to Dem. pl. 39. the writ of Disceit. And see 2 vol. (d) Com. Dig. 348. E. 2. Preston on Conv. 102. For the (e) Zouch v. Thompson, sup. form of the writ of Disceit, vide (S) 2 Inst. 518. Plowd. 370. 1 Lutw. 711. But see reference to marg. Lord Zouch v. Bamfield, 1 the Act of 3rd and 4th Wm. 4. c. And. 172. Cockman v. Farrer, sup. 27; and 3rd and 4th Wm. 4. c. 74, S. C. Sir T. Raym. 462, where, reante p. 704, n. (c.)
ferring to 2 Inst. 518, that a fine is (a) Zouch v. Thompson, 3 Lev. a bar after five years, it is said, “it's 419.
intended another fine, and not the (6) 7 H. 4. 27. Br. Aunc. Dem. same which was first levied.” pl. 13. Ib. 15, cites 11 H. 4. 85. (g) F. N. B. 97 D. (n. b), cites F. N. B. 97 D. (n. b & c.) Rex
Rer 21 E. 3. 25, 26. v. Mead, 2 Wils. 17.
(h) Zouch v. Thompson, 1 Salk. Lord Zouch, Plowd. 370. 1 And. 210. S. C. 3 Salk. 35. S. C. 3 Lev. 74.
419. (c) Zouch v. Thompson, 1 Salk. (i) I E. 3. 5, 26 b. Earl of Ply210. S. C. 3 Salk. 35. S. C. Lord mouth v. James, 1 Lutw. 713. Raym. 179.
Cockman v. Farrer,