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 (b); 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

ningsby's case. An affidavit that the lands are reputed to be ancient demesne would seem to be sufficient, there being a probable cause shown to plead it. Doe d. Henant v. Thomas & others, Barnes 185.

(a) Doe d. Morton v. Roe, 10 East 523.

(b) Hatch v. Cannon, ubi sup. And see 1 P. W. 476. Anon.

(c) Cholmondley v. Broom, Carth. 402. S. C. 3 Salk. 173. S. C. 5 Mod. 335. 12 Mod. 123. Vin. Abr. Foreign Plea,' 1 Saund. 98. n. 1. 1 Chitty on Plead. 429. And see Goodtitle v. Rogers, Barnard. Rep. B. R. 7. 2 Vin. Abr. 503. pl. 27.

(d) North v. Hoyle, 3 Lev. 182. Smith v. Frampton, Ib. 405. Farrers v. Miller, 1 Sho. 386. But see S. C. (Ferrer v. Miller), 1 Salk. 217, Carth. 221, where Holt, C. J., said that the plaintiff might have refused the plea for want of a defence.

In præcipe quod reddat ancient demesne a good plea, without travers

ing that it is frank-fee. Br. Traverse per &c. pl. 185.

(e) 4 H. 6. 19. 7 H. 6. 35. b. 21 E. 3. 10, 51. 29 E. 3. 9. 30 E. 3. 12. b. 2 H. 7. 17. 21 E. 4. 3. a. 10 H. 7. 14. 2 Vin. Abr. 482. pl. 5. Br. Aunc. Dem. pl. 4, cites 40 E. 3. 4. 4 Inst. 270. Alden's case, 5 Co. 105. a. Cox v. Barnsly, Hob. 47. Owen's case, Ow. 24. Godb. 64, ca. 76. Scroggs 123. F. N. B. 11 L, (n. a). And even after a deliverance made in replevin. 30 E. 3. 12. b. 1 Roll. Abr. 324. (H), pl. 2.

(f) But see reference to 3d & 4th W. 4. c. 27, by which the writ of right of ward is abolished after the 31st Dec. 1834,) ante, p. 695. n. (f.)

(g) 4 Inst. 270. Alden's case, sup. Hob. 47.

(h) 8 H. 6. 34. Br. Aunc. Dem. pl. 20, 37. 1 Roll. Abr. 322. pl. 9.

Pont v.

(i) Grace v. Grace, Tr. 12 Jac. 1 Roll. Abr. 322. pl. 10. Pont, Sir T. Raym. 249. reference to 3d and 4th W. 4. c. 27,

But 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 (b) 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 abolished after the 31st Dec. 1834); ante, p. 695. n. (f.)

(a) Br. Aunc. Dem. pl. 33. Ib. Parlement & Statutes, pl. 81, cites 22 Ass. 45. And see 2 Vin. Abr. Anc. Demesne, (E) pl. 15. marg.

(b) Cro. Eliz. 826. 5 Co. 105. 2 And. 178. And see Cox (or Coke) v. Barnsly, Hob. 47. S. C. 1 Brownl. 234. Martin v. Wilks, Mo. 211. Hut. 117. Ante, p. 679, tit. Cus'tomary Freeholds.'

(c) Br. Aunc. Dem. pl. 34, cites 41 Ass. 7. Ib. pl. 6, cites 41 E. 3. 22. 11 Co. 10 b, cites also 48 E. 3. 11 a. b. Fitz. Aunc. Dem. 9. Kitch. 193, cites 36 H. 6. 18. Brittel v. Bade (or Dade), 1 Lord Raym. 43. 1 Salk. 186. Kite v. Laury, 3 Salk. 34. Baker v. Wich (or Winch), 1 Salk. 56. S. C. Comb. 186. S. C.

(Parker v. Winch), 12 Mod. 13. See the pleadings in this case, (called Barker v. Winch,) Lex Man. Appx. p. 24, pl. 7. Vide also Hatch v. Cannon, 3 Wils. 51. Doe d. Morton v. Roe, 10 East 524.

Note, it is said that land may be ancient demesne, though parcel of a manor which is not ancient demesne. 1 Roll. Abr. 321 (A), pl. 1, cites 30 E. 3. 12. And see 2 Leo. 191. But see ante, p. 687. 2 Burr. 1048. Hopkins v. Pace, 1 Sho. 271.

(d) Kitch. 193, cites 41 E. 3. 22. 12 Ass. 16. 22 Ass. 45.

As wastes are part of the demesnes of a manor, approvements by the lord cannot be ancient demesne. 5 Ass. 2. 1 Roll. Abr. 321 (A), pl. 2. F. N. B. 14 D. (n. a).

"Frank-fee may be held of a manor 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 (b), 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 (f); nor in a warran

tia chartæ (a); nor in a quare impedit, for the court cannot write to the bishop (b); 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 (ƒ).

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. (b) 1 Roll. Abr. 323, pl. 17, cites 7 H. 6. 35. Br. Aunc. Dem. pl. 20. Hob. 48, in Cox v. Barnsly. Nor in an action upon the stat. 5. R. 2. Kitch. 188-9, cites 2 H. 7. 17. 21 E. 4. 3. Hob. 47. Nor in a juris utrum of his free alms. 32 E. 1. 2 Vin. Abr. 483, pl. 16. 1 D'Anv. 659, pl. 16. Kitch. 189.

(c) 41 E. 3. 22. 1 E. 3. 14. F. N. B. 11 (M). 1 Roll. Abr. 323, (G), 325, (I), pl. 19. 2 Vin. Abr. 487 (G), pl. 2 & marg.

(d) 41 E. 3. 22. 1 Roll. Abr. 323 (G), pl. 3. 2 Vin. Abr. 487 (G), pl.

3.

(e) 41 E. 3. 22. b. 1 Roll. Abr.

323 (G), pl. 1. Fitz. Abr. Aunc. Dem. pl. 9.

(f) Smith v. Frampton, 3 Lev. 405. Brittle v. Bade (or Dade), 1 Lord Raym. 43. 1 Salk. 186. And see Wilkins v. Gregory, Cary 121-2.

(g) Which writ we have seen cannot be maintained by a copyholder, ante, pp. 671 (n. b.), 691.

(h) Brittle v. Bade (or Dade), sup. Doe d. Rust. v. Roe, 2 Burr. 1046. Kite v. Laury, 3 Salk. 34. Baker v. Wich (or Winch), or Parker v. Winch, 1 Salk. 56. Comb. 186. 12 Mod. 13. Smith v. Frampton, sup. Ante, p. 701. Ante, pt. 1, p

606.

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 (b).

Of Fines and Recoveries (c).

Fines are to be levied and recoveries suffered of lands in

(a) Savery v. Smith, 2 Lutw. 1144. S. C. 3 Salk. 36. See the pleadings in this case, Lex. Man. Appx. p. 29. ca. 10. Ante, p. 693.

(b) Chafin v. Betsworth, 3. Lev. 190. See the pleadings in this case, Lex Man. Appx. p. 27. ca. 9.

(c) But by 3d and 4th Wm. 4. c. 74, see Appendix, it is provided that no fine shall be levied or common recovery suffered after the 31st Dec. 1833; and that tenants in tail shall have power to dispose of the lands entailed, either in fee simple or for any less estate, but in the case of tenants in tail in remainder, and other cases mentioned in the Act, certain persons are therein denominated protectors, and required to give their consent to such disposition.

And by the same Act, (Sect. 4,) a provision is made that no fine or recovery levied or suffered in a superior court, of lands of ancient demesne tenure, shall be reversed upon a writ of disceit, except as to the lord of the manor.

And also, (Sect. 5,) that a fine or recovery of ancient demesne lands levied or suffered in the manor court, after a fine or recovery thereof in a superior court, shall be as valid as if the tenure had not been changed by such prior fine or recovery.

And likewise, (Sect. 6,) that in every case in which the tenure of ancient demesne may have been suspended or destroyed by a fine or recovery in a superior court, provided that the lord of the manor shall not