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Again, we have seen that a confirmation to the tenant of customary freehold lands discharged of all customs and services, excepting certain rent and suit of court, extinguishes the customary tenure, and converts it into free and common socage (a).
But the tenure of ancient demesne will sometimes be restored; for instance, if ancient demesne lands come to the king, and the king regrant them, to be held of the same manor, they again become ancient demesne (6).
And if the king, seised of land in ancient demesne, grant it out for life, it is frank-fee for the time only (c).
It is said also, that if the king seise ancient demesne land, without title, and grant it to another, and the patent be repealed, and he who has right is restored to the land, it will become ancient demesne again (d).
If the lord confirm land of ancient demesne tenure to the tenant, to hold by certain services for all services, during life, the land will be frank-fee during life only, and afterwards become ancient demesne again (e).
So also if the lord confirm to a disseisor, to hold at common law, if the disseisee re-enter or recover, the land shall be ancient demesne again ($). 7. Br. Aunc. Dem. pl. 8. Ib. Con- (e) 21 E. 3. 33. 1 Roll. Abr. 325, firmation, pl. 5. Fitz. Avowrie, pl. pl. 30. 59. Ib. Aunc. Dem. pl. 42. Beau- (f) 1 Roll. Abr. 326 (L), pl. 1, mont's case, 9 Co. 140. Ante, tit. cites 49 E. 3. 9. But in 50 E. 3. 10. Customary freeholds,' p. 682. 25, it was held, that if the lord dis
(a) Doe & Huntington, 4 East seise the tenant, and make a feoffment, 271. Ante, p. 680, et seq.
and after the tenant recover in an(6) 21 Ass. 13. Kitch. 190. But cient demesne, yet the seigniory is not if granted to hold of another manor, revived. 2 Vin. Abr. 493. (L), pl. 2. the lands would remain frank-fee. Br. Aunc. Dem. pl. 6, 10.
« The F. N. B. 13 C.
coming of the land into the hands of (c) 11 H. 4. 84. Kitch. 191. Ib. the lord does not change the nature 192, cites 17 E. 3. 52. But see 2 of it, unless he makes a feoffment Vin. Abr. 489, pl. 10.
thereof.” 2 Vin. Abr. 493 (L), pl. 3. (d) 1 Roll. Abr. 326. L, pl. 4, marg. cites 21 Ass. 13. cites 21 E. 3. 46 b.
It has been said that if the lord release the services of ancient demesne land for a certain time, the land will become frank-fee for the time (a), but this seems to be very questionable (6)
Although after a fine of ancient demesne lands at common law, no fine could be levied, or recovery suffered of such lands, in the manor court, until the fine at common law should be reversed by a writ of disceit (c); yet it should seem that a person claiming under a paramount title, must sue at common law, so long as the land remains frank-fee in the hands of the immediate possessor (d); but on recovery at common law by a disseissee of ancient demesne lands, after a fine by the disseisor, the lands will be ancient demesne again (e). It appears,
however, that the election to sue in the manor court for the recovery of ancient demesne lands, is not taken away in all cases, by the lands becoming frank-fee; for although a disseisin by the lord will make ancient demesne lands frank-fee as to him, so long as they remain in his hands (f), yet the tenant has his option, in such a case, to sue either by writ of Right Close, or at common law (g).
(a) See 1 Roll. Abr. 325, pl. 31. brought against him for the entry, he (6) Ib. cites contrà, 30 E. 3. 13. b. cannot justify by force of the re(c) Kitch. 191. Ante, p. 706. covery there, for it was coram non ju
(d) But see 50 E. 3. 24. b. 1 Roll. dice. F. N. B. 13. C. Ib. (n. a.), Abr. 326 (L), pl. 3, where it is said, cites 7 H. 4. 3. And see 2 Preston that if the land be made frank-fee as on Conv. 102. to those in possession, yet it shall not (f ) 20 H. 6. 33. 41. Ass. 7. F. N. be said to be frank-fee as to those B. 12 E. ) Roll. Abr. 325, pl. 17. who claim paramount this making of (g) 30 E. 3. 13. 41. Ass. 7. Fitz. it frank-fee.
Aunc. Dem. pl. 18. F. N. B. 12 E. (e) 3 E. 3. 33. 1 Roll. Abr. 326 1 Roil. Abr. 325, pl. 18. (L), pl. 3, cites 50 E. 3. 24 b. There- But as to the writ of right close, vide fore, if in such case judgment be reference to the act of 3d & 4th W. given in the court of ancient demesne, 4, c. 27, ante p. 695. n. (f). And see and the recoveror enters, in trespass the act in the Appendix.
PART THE THIRD.
OF THE JURISDICTION OF COURTS BARON (a).
Origin and Nature of the Court Baron.
A Court BARON, which it is to be recollected is not a court of
(a) The stile of the court is CURIA Those possessing original baronies, BARONIS E. C. mililis manerii sui and other great lords, having, during prædicti, (having the manor's name the practice of subinfeudation, called written in the margin,) tent' tali die, their immediate vassals barons, the &c. Coram A. B. seneschallo ibidem. principal barons, who alone were sum4 Inst. 268.
moned to attend the councils of the CURIA (court) is a place where king, and who held of the king in justice is judicially ministered, and is capite [2 Inst. 7], were called barones derived à cura, quia in curiis publicis majores, or barones regis (or regni), curas gerebant. Co. Lit. 58 a. Curia, to distinguish them from the inferior which occasionally seems to have im- barons, denominated barones minores, plied the court or manor house only and who held by knights service and of the lord, in one or two entries in escuage [4 Inst. 46]. The latter Domesday-book, appears to have a appear about the end of the reign of more immediate reference to manorial King John to have lost the appellajurisdiction. App. to 2nd General tion of baron altogether. Report from Commiss. on Pub. Re- Sir William Blackstone observes, cords,
442, cites tom. 1. fol. 35 b. “ A baron's is the most general and ib. fol. 265 b.
“ universal title of nobility; for oriBARONIS.—The title of Baron, like ginally every one of the peers of suall or most of the dignities or titles “perior rank had also a barony anof honour now existing in England, “ nexed to his other titles. But it originated in the feudal institutions “ hath sometimes happened that, of the Normans, and seems about the “ when an antient baron hath been end of the Conqueror's reign to have “ raised to a new degree of peerage, supplanted the Saxon title of Thane. “ in the course of a few generations
record (a), is incident to every manor (b), and is incapable of severance under any grant of such court, or any reservation thereof in a grant of the manor (c), except only in the case of the king (d).
“ the two titles have descended dif. “ confined to the greater barons, or “ferently ; one, perhaps, to the male “ lords of parliament only; and there “ descendants, the other to the heirs “ were no other barons among the “ general; whereby the earldom or
peerage, but such as were summon“ other superior title hath subsisted “ed by writ, in respect of the tenure “ without a barony: and there are “ of their lands or baronies, till Ri. “ also modern instances, where earls - chard the Second first made it a “ and viscounts have been created “ mere title of honour, by conferring “ without annexing a barony to their “ it on divers persons by his letters - other honours : so that now the patent." See 1 Vol. Com. 398-9. “ rule doth not hold universally that The principal mansion or castle of “all peers are barons. The original every barony was called the caput “ and antiquity of baronies have oc- baroniæ, and was appropriated to the “casioned great inquiries among our use of the person intitled to the ba
English antiquaries. The most rony, and when the barony descended “probable opinion seems to be, that to daughters, the caput baroniæ was they were the same with our pre- allotted to the eldest. It
appears to “ sent lords of manors; to which the have been subject to curtesy, but not “ name of Court Baron (which is the to dower. 1 Inst. 39 b. 31 b. 2 Inst. “ lord's court, and incident to every 17. “ manor) gives some countenance. It (a) Co. Lit. 117, b. 2 Inst. 143. “ may be collected from King John's 4 Inst. 268. “ Magna Charta, that originally all (6) 8 H. 7. 1. Kitch. 7, 8, 70. 2 “ lords of manors, or barons, that held Inst. 99. 4 Inst. 268. Being inci“ of the king in capite, had seats in the dent to a manor of common right, it “great councilor parliament: till about is not lost merely because no court “the reign of that prince, the conflux hath, time out of mind, been holden “ of them became so large and trouble- within the manor. Ow. 35. some, that the king was obliged to The entry is sometimes
« The “ divide them, and summon only the Great Court of, &c.”: this is but a "greater barons in person; leaving court baron. Kitch. 156. “ the small ones to be summoned by (c) 10 H. 8. 34. Kitch. 70. Brown “ the sheriff, and (as it is said) to sit v. Goldsmith, 1 Brownl. 175. Mo. “ by representation in another house; 870. Hob. 108. Br. Incidents, pl. “ which gave rise to the separation 34, cites 19 H. 8. “ of the two houses of parliament. (d) Mo. 870, in Brown v. GoldBy degrees the title came to be smilh. See also Sir Robert Acton's
The Court Baron was ordained, as well for the maintenance of the services and duties stipulated for by lords of manors (a) on their granting out lands to others in fee, previous to the statute of Westminster 3. (6); as for the purpose of determining actions of a personal nature, as debt, or trespass (c), or detinue of goods (d), where the debt or damage was under forty shillings (e); and, it should seem, not only as between the tenants of, but as against strangers coming within, the manor ($).
It was adjudged in a late case in the court of B. R. upon an application for a mandamus to receive and admit a plaint in a manor court (of ancient demesne), that a chartered right in the steward and suitors of the court, of determining plaints of debt, (though exceeding forty shillings,) trespass vi et armis, &c., was not lost by non-user for near fifty years (g).
But account does not lie in a court baron (h); nor trespasz vi et armis (0)
According to some ancient authorities, the court baron had
case, Dy. 288_b. And it should
tempt to hold plea in court baron of seem from the same authority, that any matter of the value of forty shillthe profits of court may be excepted, ings, writ of prohibition lies. Finch even by a common person. Ib. Vide L. 451. 3 Bl. Com. 112. But by also Com. Dig. Cop. (R. 1. Court charter or prescription, as in the Baron.)
case of the Castle of Dover, a court (a) Kitch. 6. Scroggs, in his Pract. baron may hold pleas above forty of Courts Leet and Courts Baron, shillings, and award a capias. Kitch. pp. 82-3, says, that these courts were 187. These, however, are courts of ordained for the three purposes of record. Kitch. 187-8, cites 6 E. 4.3. adjusting differences between lord (S) Kitch. 146 Br. Court Baron, and lord adjoining; between lord pl. 1. and tenant; and between tenant and (8) Rex v. The Steward of Suitors tenant. See also ante pt. 1.
2. of the Manor of Havering Atte Bower, (6) Ante pt. 1. p. 2 to 6.
5 Barn. & Ald. 69). And see Rex y. (c) Britt. 61. Kitch. 148.
The Mayor & Jurats of Hastings, (d) Kitch. 146, cites 6 E. 2. 34 16. 692. n. Ante p. 716. n. (b.) H. 6. 53. But not detinue of write (h) Kitch. 146, cites 43 E, 3. 19. ings. F. N. B. 47 B. Kitch. 148. (i) Co. Lit. 118. a. F. N. B. 47. i
(e) 19 H. 6. 8. Kitch. 6, 146.2 A. 2 Inst. 311, 312. Kitch. 146-8, Inst. 311. 4. Inst. 264-8. On at- But see 7 E. 4. 23, cited Kitch. 146.