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tertained, whether a second fine in the Court of Common Pleas would not have operated as a bar to the lord under the statute of nonclaim after five years (f); and it should certainly seem, that a fine of elder date would have hindered the reversal of a fine of later date by writ of disceit, but not e converso (g).
The lord in pleading need not have set forth any estate, it having been sufficient that he was dominus pro tempore (h); even a termor might have had the writ of disceit (i). And if the lord's estate was determined it must have been shown on the other side (k); nor was it necessary to show before whom the court was held, but only that the lands were pleadable in curia manerii (1).
When a fine was reversed by a writ of disceit it ceased to be binding on the parties themselves (m), and consequently on the issue in tail (n); but whilst the fine remained in force, the tenancy was changed by way of estoppel, and the parties themselves were bound (o); so also was a disseisee (p).
It should seem, however, that a particular course of descent in ancient demesne lands would not have been changed by a fine at common law, inasmuch as a custom governing the descent runs with the land, and is in respect of the land and not of the seigniory (q), the same as in gavelkind lands, the custom whereof was not changed by a fine or recovery at common law (r): but it has been said, that a peculiar customary descent in gavelkind lands runs not with the land simply, but by reason of the ancient demesne, and that the custom would therefore have been destroyed by a fine at common law (s).
(f) 2 Inst. 518; Plowd. 370, marg.; Lord Zouch v. Bamfield, 1 And. 172; Cockman v. Farrer, sup.; S. C. Sir T. Raym. 462, where, referring to 2 Inst. 518, that a fine is a bar after five years, it is said, "it is intended another fine, and not the same which was first levied."
(g) F. N. B. 97 D. (n. b), cites 21 E. 3, 25, 26.
(h) Zouch v. Thompson, 1 Salk. 210; S. C. 3 Salk. 35; S. C. 3 Lev. 419.
(i) 1 E. 3, 5, 26 b; Earl of Plymouth v. James, 1 Lutw. 713.
(k) Zouch v. Thompson, ubi sup. (1) Earl of Plymouth v. James, ubi sup. (m) 4 Inst. 270; Kitch. 191, cites 8 E. 4, 6; 3 Hen. 4, 6; Lampet's case, 10 Co. 50 a.
(n) Cary v. Dancy, Cro. Eliz. 471 b. (0) 21 E. 3, 25; F. N. B. 13 C. (n. a); 2 Leo. 192, ca. 240. Pending a writ of right close, the tenant accepted a fine come ceo, &c., yet the land remained ancient de
mesne as to that action; 12 Hen. 7; Rot. 103; F. N. B. 13 C. n. marg.
(p) 7 Hen. 4, 3; F. N. B. 13 C. (n. a). (9) Dy. 72 b, pl. 4; Dal. 12, pl. 21, per Hale and Brown, Just.; and see 49 E. 3, 8, per Kirton, Just., 49 E. 3, 7, 8; Br. Abr. Aunc. Dem. pl. 8; ib. Confirmation, pl. 5.
(r) Finch's Law, 15; Rob. Gav. [3rd ed. by Wilson], p. 90.
(s) Finch's Law, 16, cites 6 E. 6, & Dy. sup. n. (g); vide also Dal. 12, per Montague, C. J., cited Rob. Gav. [3rd ed.], p. 91. Customs merely collateral, and not incident to the tenure, are not necessarily destroyed by a change in the tenure, or in other words, the estate of the tenant may continue, though the quality of it be altered. See Bro. Abr. as in n. (q), sup. ; vide also Doe & Huntington, 4 East, 282, 290, 293; Wiseman v. Cotton, 1 Lev. 79; S. C. 1 Sid. 135.
Although a fine of ancient demesne lands could not have been reversed as to one person, and remained good as to another, yet it might have been reversed as to part of the land, and remained good as to the residue (t).
Of the Manner of bringing the Writ of Disceit.
When a fine was levied of ancient demesne lands in the Common Pleas, the ter-tenant was the person against whom the writ of disceit properly lay (u); and persons to whom estates in remainder were limited by the fine need not have been named in the writ (x), but those in remainder were to be summoned by scire facias to show cause if they could, why the fine should not be reversed (y).
The writ of disceit might have been brought against the conuzee as well as the conuzor, and against the heir of the conuzor or conuzee, as the fine worked a real disceit and not a personal tort only (2). It might have been brought, the author apprehends, against the conuzor or conuzee alone (a), but then there must have been a scire facias against the ter-tenant (b).
In an action on the case in nature of disceit brought against the vouchee only, to reverse a recovery of lands in ancient demesne, the Court of C. B. held that the demandant and tenant also ought to have been before the court, to prevent collusion between the lord of the manor and vouchee (c); and it was agreed that the action should be discontinued, and a new action brought against the demandant, tenant, and vouchee.
It has been held that if the conuzee was in possession, and the conuzor released to him by deed all his right, though the fine should
(t) F. N. B. 98 P.; 17 E. 3, 31; 21 E. 3, 20; Fitz. Abr. Disceit, pl. 37, 44; 1 Lord Raym. 178, 179, in Zouch v. Thompson; 1 Lutw. 713; Keilw. 43, pl. 10; Lee & Loveday, 1 Leo. 290; S. C. 3 Leo. 120.
(u) 16 E. 3, 66; Lutw. 713, in the Earl of Plymouth v. James, cites Fitz. Fines, 30; Zouch v. Thompson, 1 Salk. 210; S. C. 3 Salk. 35; F. N. B. 97 D. (n. b & c.)
(x) F. N. B. 97 D. (n. b & c); 2 Vin. Abr. 496, (P. 2), pl. 1, cites Thel. Dig. 48, lib. 5, cap. 17, s. 2, citing Trin. 26 E. 3, 65.
(y) 21 Ass. 79 b, pl. 13; Br. Disceit, pl. 21, cites 21 Ass. 13; 2 Vin. Abr. 497 (R.), pl. 2, marg.; F. N. B. 97 D. (n. c), cites 21 E. 3, 56.
(z) Zouch v. Thompson, sup. ; yet it seems that the writ did not abate by the death of the conuzee, the action being trespass only in its nature; King v. Due (or Dewe & Kirley's case), 3 Leo. 3; S. C. Mo. 13, pl. 49.
(a) Win. Ent. 26; Herne, 93; Lex Man. 36, marg.; F. N. B. 97 D. (n. c).
(b) 7 Hen. 4, 44; 8 Hen. 4, 29; F. N. B. 97 D. (n. c). In Vent. 211, (Anon.,) it is said, "In a writ of disceit to reverse a fine of land in ancient demesne, after assignment the conuzee shall be made party. So in a writ of error, though the ter-tenant shall not be turned out of possession without a scire facius."
(c) Rex v. Hadlow, 2 Sir W. Bl. 1170.
have been afterwards avoided, yet the conuzee should hold the lands by virtue of the release (d); and yet after the fine levied, the conuzor had no right in the land, but only a possibility to have the land again after the fine made void by a writ of disceit (e): so also the estate of the conuzee should stand after reversal of the fine, if confirmed by the heir of the conuzor (f): and after a reversal of the fine, the heir of the conuzor should not enter upon the ter-tenant, without a scire facias (g).
By what Acts Ancient Demesne Lands become Frank-fee.
Ancient demesne lands, as we have already seen (h), might have become frank-fee by a fine or recovery in the Court of Common Pleas; and if the lord was a party to a fine at common law, he should never afterwards have a writ of disceit (i): they were also made frank-fee by the lord's joining with the tenant in a fine upon a writ of warranty of charters (k).
A fine, with a grant and render to the tenant without execution, would likewise have made the land frank-fee (1). So also a fine upon a release with warranty to the tenant (m); but it appears to be doubtful whether ancient demesne lands would have become frank-fee by a fine upon a release without warranty (n).
It should seem that a fine levied by the tenant without any original writ would have made the land frank-fee till reversed (o).
And when lands held in ancient demesne escheat to the lord, they become frank-fee, as he then holds them of the lord paramount (p) ; and if he be disseised thereof, his remedy is in the courts of common law (q).
Again, if ancient demesne lands come to the king, they are frankfee (r), even though the king grant them over again to another in fee
(g) Cary v. Dancy, Cro. Eliz. 471 b; Lee & Loveday, 1 Leo. 290; 3 Leo. 120. (h) Ante, p. 593. (i) 30 E. 3, 13 b; F. N. B. 13 C. (n. a). (k) 21 E. 3, 32 b; 1 Roll. Abr. 325, pl. 27. Contrà, if such a fine was levied by the tenant alone, ib. 324, pl. 6, cites S. C. See reference to 3 & 4 Will. 4, c. 27, (and by which the writ of warrantia charta was abolished,) ante, p. 585, n. (d).
(1) 40 E. 3, 4 b; 1 Roll. Abr. 324 (I.)
pl. 2; and see Br. Aunc. Dem. pl. 4; 2 Vin. Abr. 488, pl. 2.
(m) 21 E. 3, 25; 1 Roll. Abr. 324, pl. 3. And see Griffith v. Clarke, Mo. 143. (n) 40 E. 3, 4 b; 1 Roll. Abr. 324, pl. 5.
(0) 26 H. 8, Ass. 13; 1 Roll. Abr. 324,
(p) Kitch. 191, cites 18 Ed. 3; 19 Com. Dig. Aunc. Dem. (C. 2).
(q) 41 Ass. 7; Br. Aunc. Dem. pl. 34; Fitz. Aunc. Dem. pl. 18.
(r) Kitch. 190, 191; 1 Roll. Abr. 324, pl. 9, cites 17 E. 3, 52, 75 B.; 21 E. 3, 46 b, cites also contra 18 E. 3, 19, 21 E. 3, 56, 21 Ass. 13.
or for life (s); and therefore to prove the land frank-fee, it is sufficient to show the feoffment or charter of the king (t): so if the king give lands of ancient demesne, to hold in frank-almoign, they become frank-fee (u).
If the lord confirm ancient demesne lands to the tenant, to hold by the same services, there could be no change of tenure, the author apprehends, except such confirmation should have been by fine come ceo, &c. (x); but if the lord confirm to the tenant to hold freely, by the services before due, this makes the land frank-fee (y); yet the tenure only is changed, and not the estate of the tenant (2).
Upon a confirmation by the lord to hold by less services, or by certain services for all services, it would seem not to be fully settled whether the land would become frank-fee or not (a).
But if the lord enfeoff another of the tenancy (b), even with a saving of the ancient services (c), the land will become frank-fee. And it has been decided that a release by the lord, by fine, of all services and customs, excepting certain specified services, would have extinguished the tenure of ancient demesne (d); and that a deed of confirmation to hold by certain services, at common law, will discharge ancient demesne lands from the customs of the manor and make them frank-fee, although the estate of the tenant would not be
(s) Kitch. 191, cites 13 H. 4, 7; 1 Roll. Abr. 324, pl. 10, cites 11 H. 4, 86, a, b; Br. Aunc. Dem. pl. 15.
(1) F. N. B. 13 C. But if a manor of ancient demesne come to the king, and he alien it to another, the lands held of the manor continue ancient demesne, but the demesnes are frank-fee, 21 E. 3, 56; 21 Ass. 13; Br. Aunc. Dem. pl. 32; 1 Roll. Abr. 324, pl. 8.
(u) Kitch. 191, cites 6 H. 4, 2. So also if the lord, before the stat. of quia emptores, had enfeoffed another of ancient demesne land, to hold by knights' service, for all land in ancieut demesne is by socage only; F. N. B. 13 D.; ib. 14 B. & C.; 4 Inst. 270.
(r) 30 E. 3, 13 b; 1 Roll. Abr. 325, pl. 28; Griffith v. Clarke, Mo. 143; ante, P. 574.
(y) 30 E. 3, 13; 1 Roll. Abr. 325, pl. 23; but see Fitz. Abr. Aunc. Dem. pl 30. (z) Kitch. 191, cites 49 E. 3, 7; Beaumont's case, 9 Co. 140.
(a) In favour of the lands becoming
frank-fee, vide 21 F. 3, 32 b; Fitz. Cause de remover ple, 18; 21 E. 3, 33; 2 Vin. Abr. 491, pl. 25, 26, 30; Com. Dig. Anc. Dem. (C. 2.) See contra 30 E. 3, 12 b; Fitz. Aunc. Dem. pl. 30; Br. Aunc. Dem. pl. 18, cites 21 E. 3, 32, and states that the plea was removed out of ancient demesne, the tenant claiming to hold at common law, and that the better opinion was that the confirmation did not alter the estate, nor the nature of the land. See also 2 Vin. Abr. 491, pl. 25, marg.; F. N. B. 15 A. n. b. Confirmation to hold by meaner service no frank-fee; Kitch. 191, cites 30 E. 3, 16.
(b) 1 Roll. Abr. 324, pl. 12; ib. 326,
(c) For he cannot hold by the ancient services; 1 Roll. Abr. 325, pl. 20; Fitz. Aunc. Dem. pl. 41.
(d) Griffith v. Clarke, Mo. 143. N.B. the fine was levied in the time of Ed. 2, and of course after the stat. of quia emptores, and not previously as supposed by Mr. Watkins, see 1 Cop. 368.
changed otherwise than in quality (e). 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 (ƒ).
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 (g).
And if the king, seised of land in ancient demesne, grant it out for life, it is frank-fee for the time only (h).
It is said also that if the king seize 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 (i).
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 (k).
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 (1).
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 (m), but this seems to be very questionable (n).
Although after a fine of ancient demesne lands at common law no fine could have been levied, or recovery suffered of such lands in the manor court, until the fine at common law should have been reversed by a writ of disceit (o), yet it should seem that a person claiming
(e) Per Belknap, C. J., 49 E. 3, 7; Br. Aunc. Dem. pl. 8; ib. Confirmation, pl. 5; Fitz. Avowrie, pl. 59; ib. Aunc. Dem. pl. 42; Beaumont's case, 9 Co. 140; ante, tit. "Customary Freeholds," p. 574.
(f) Doe & Huntington, 4 East, 271; ante, p. 573 et. seq.
(g) 21 Ass. 13; Kitch. 190. But if granted to hold of another manor, the lands would remain frank-fee; F. N. B. 13 C.
(h) 11 H. 4, 84; Kitch. 191; ib. 192, cites 17 E. 3, 52; but see 2 Vin. Abr. 489, pl. 10.
(i) 1 Roll. Abr. 326, (L.) pl. 4, cites 21 E. 3, 46 b.
(k) 21 E. 3, 33; 1 Roll. Abr. 325, pl.
() 1 Roll. Abr. 326 (L.), pl. 1, cites 49 E. 3, 9. But in 50 E. 3, 10, 25, it was held that if the lord disseise the tenant, and make a feoffment, and after the tenant recover in ancient demesne, yet the seigniory is not revived; 2 Vin. Abr. 493 (L.), pl. 2; Br. Aunc, Dem. pl. 6, 10. “The coming of the land into the hands of the lord does not change the nature of it, unless he makes a feoffment thereof;" 2 Vin. Abr. 493 (L.), pl. 3, marg. cites 21 Ass. 13.
(m) See 1 Roll. Abr. 325, pl. 31.