writ what was right in his court (o); and if tenants in ancient demesne had been otherwise impleaded, they might have pleaded their tenure in abatement of the suit; but this, as we shall presently see, was only where the realty might have come in question.

Of the Writs of Monstraverunt, and de non ponendis. Monstraverunt. Should tenants in ancient demesne be distrained by their lords to perform other customs or services than they and their ancestors have usually performed, they may be relieved by the writ of monstraverunt (p), founded on a petition and ordinance of parliament (g), and directed to the lord, commanding him not to distrain contrary to such ancient usage; upon which another writ of monstraverunt may be sued, directed to the sheriff, commanding him to cause justice to be done if the lord be disobedient.

But the lord cannot be put to answer the attachment, before the court be certified by the exchequer that the manor is ancient demesne; therefore the plaintiff in the monstraverunt should sue a special writ to the treasurer and chamberlain of the exchequer to certify the same (r).

Yet it seems that the certificate lawfully coming into court by certiorari and mittimus is conclusive, though there be no issue joined, whether frank fee or ancient demesne (s).

The sheriff may make resistance and rescous to any distress by the lord; and in case of the lord's distraining again, the tenants may sue an attachment against the lord, returnable in the King's Bench or Common Pleas, and recover their damages (t). If the lord distrain them pending the attachment, they may have a special attachment, directing the sheriff to make deliverance (u).

The writ of monstraverunt may be sued generally, without showing the names of the tenants; but in the attachment against the lord, the tenants suing it must be named (x), or at least the tenants distrained after the prohibition are named by their proper names, and the others by the general words homines manerii (y).

(0) 2 Inst. 542; 4 Inst. 269. See the forms of this writ, Reg. f. 9; F. N. B. 11. A tenant in ancient demesne may also have a bill of fresh force in the court of ancient demesne, within forty days after disseisin, without any writ sued; Kitch. 188, 189; F. N. B. 13 E.; Br. Aunc. Dem. pl. 1, cites 26 H. 8, 4.

(p) See the forms of this writ, F. N. B. 14, 15.

(9) 18 Ed. 1, 27. It should seem that the tenants may have this writ without

But if one of those named in the attachment will not sue, he may be severed, and the death or nonsuit of one will not prejudice his companions, although the count in the monstraverunt be joint (z).

And one tenant may sue the writ of attachment alone by his proper name, and in the name of the other tenants by the above general words (a).

If frank tenants and tenants by base tenure join in a monstraverunt, the writ shall abate only as to the latter (b).

De non ponendis. In case of being impannelled on any inquest, tenants in ancient demesne may have the writ de non ponendis in assisis et juratis, and if, in contempt of such writ, the sheriff will return them, they may have an attachment against him (c).

Of the Writ of Right Close (d).

This writ has been said to have been peculiar to lands in ancient demesne (e), but the observation would seem to have been unfounded (ƒ). The writ was directed to the lord of the manor, or sometimes to the bailiff, and he that brought it might have made protestation to pursue it in nature of what writ he pleased, either in nature of a proper writ of right or of an assise of novel disseisin, cui in vitâ, or any other real writ; and therefore it might have been brought by tenant for life, in tail, or in dower (g).

The demandant in a writ of right close could not have removed the plea out of the lord's court for any cause (h). But the tenant might have removed the same by recordare for several causes, as that the lands were frank-fee, and not ancient demesne (i); or that there

(z) F. N. B. 15 G.; ib. 16 E. For though the count be joint, the tenures are several, and so the torts and damages are several; ib. n. b. The plaintiffs in the attachment may count severally; and the day or place where the lord distrained need not be alleged in the count; F. N. B. 16 A.

(a) F. N. B. 15 H.

(b) F. N. B. 16 E. F.

(c) 1 Nels. Abr. 212 (C.) pl. 1; 1 New Abr. 111 (B.) pl. 2 marg.

(d) By the 3 & 4 W. 4, c. 27, (referred to in pt. 1, p. 473, n. (a), and which will be found in the Appendix,) the writ of right close was abolished; but the author thought it right that his observations on that form of action, in the last edition of this work, should have a place in the pre

sent one.

(e) Booth's Real Actions, 116.

(ƒ) The writ of right called præcipe in capite, and which lay where the lands were holden of the King in capite, as of his crown, was close, F. N. B. 5 E.; Reg. Brev. 4 b; Booth's Real Actions, 87, 88. The writ of right patent, indeed, when brought in the King's court, quia dominus remisit curiam, was also close; Booth's Real Actions, 87, 88. And see ante, p. 562, tit. Customary Freeholds."

66

(g) F. N. B. 11 F.; Booth, 116.

(h) 34 H. 6, 35; 2 E. 3, 35; and see 3 H. 4, 14; 2 Vin. Abr. 495, 496, pl. 9, marg.; F. N. B. 13 B; ib. n. a; Inst. 269. But see 2 E. 3, 29.

(i) F. N. B. 13 B. & C.; Booth, 117; 4 Inst. 269; Com. Dig. Ancient Demesne (G. 5); 2 Vin. Abr. 495, 496, pl. 9.

were no suitors, or only one suitor (k); or from a just apprehension of partiality, as that the demandant was steward (7).

If the tenant for special cause removed the plea into the Common Pleas by recordare, although the plea was without writ, yet he could not have shown new cause to retain the plea in C. B.; but if the cause was general, as that the tenant claimed to hold at common law, there the tenant might have shown any special cause to prove the tenements frank-fee, as, for instance, a confirmation by the lord (m).

If the demandant and tenant put themselves upon the grand assize (n), or the tenant pleaded a foreign plea, or vouched a foreigner to warranty (0), then a supersedeas was to be granted out of Chancery to the lord of ancient demesne, or his bailiff (if the writ were so directed), to surcease; and on such foreign voucher the defendant should have sued his writ of warrantia charta against the vouchee, returnable in the Common Pleas, and then he might have had the supersedeas out of Chancery to surcease until the plea was determined in C. B. (p).

And if the lord or bailiff proceeded after such writ sued forth, the tenant might have had an attachment against him to answer the contempt in the Common Pleas to the King and to the party (q). So if the record in ancient demesne was removed by recordare, and the lord or bailiff proceeded in the plea, the tenant might have sued a certiorari, directed to the justices of the Common Pleas, to certify the tenor of the record into Chancery, and of the removal; and on the certificate into Chancery the tenant should have had an attachment, returnable in the Common Pleas, to answer to the King and to the tenant who sued forth the recordare (r).

(k) F. N. B. 13 C.; 4 Inst. 270. So, it should seem, if there had been four suitors only; Br. Cause a remover plea, 35; F. N. B. 13 C. marg.

(1) Booth, 117; Rast. Ent. 242 b. The demandant being bailiff does not seem to have been a cause of removal; F. N. B. 13 B. (n. a), cites 11 H. 6, 10.

(m) F. N. B. 13 F.; ib. (n. a) cites 9 H. 6, 34, 35; 21 E. 3, 32.

(n) But where in a writ of right close the plaintiff made protestation to sue in nature of a writ of right at common law, and the tenant joined the mise [or issue] upon the mere right, and put himself on the grand assize, the record was removed by an accedas ad curiam into the court of C. B., and it was held that the tenant's putting himself upon the grand assize was not a sufficient cause for removing the re

cord, but that he should have a jury in the nature of the grand assize, and a procedendo was awarded; Stafford's case, Dy. 111 b. And see Lex Man. 41; Rast. Ent. 242. But see 1 H. 7, 29; Booth, 117; F. N. B. 13 H. (n. b).

(0) See as to voucher into the county by tenant in ancient demesne, the vouchee having nothing to be summoned by within the seigniory, Dy. 69 b, pl. 35; vide also F. N. B. 13 G. (n. b).

(p) F. N. B. 13 G. & H.; Br. Aunc. Dem. pl. 35, cites 1 H. 7, 30. If the tenant plead bastardy, &c., a supersedeus also goes to the lord to surcease, for the court of ancient demesne cannot write to the bishop; Reg. 9 a; 1 Com. Dig. 354. (q) F. N. B. 14 A. (r) F. N. B. 13 H.

But if the plea of warrantia chartæ had been discontinued in C. B. then the demandant might have sued a writ out of Chancery, directed to the justices of C. B., to certify the King in Chancery if the plea of warrantia charte was pendent or discontinued, so that if discontinued or determined, the court of ancient demesne might have been directed to proceed in the plea (s).

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 (t). 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 twentyfour, the judgment of the manor court was affirmed (u).

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 have made his land frank-fee, there ancient demesne was a good plea(x); it might therefore have been pleaded in bar in assize or redisseisin (y), and all real actions (z).

Ancient demesne is also a good plea wherever the interest of the land is bound, or the realty by intendment may come in by debate, as in an ejectment (a); but if not so pleaded, it will be too late after

(s) F. N. B. 14 A.

(t) Ante, p. 579. But as a copyholder could not have had a writ of right close, (ante, p. 582,) if one recovered against him in ancient demesne by writ of right close he should not have had a writ of false judgment, nor assigned this for error, for then he would have been restored to a freehold which he never lost; 14 H. 4, 34. The recovery, however, it seems would have been void, and might have been avoided by plea; 1 H. 5, 12; F. N. B. 12 B. (n. b).

(u) Abrahall v. Nurse, 3 Leo. 63; S. C. Bendl. 279. In Lex Man. p. 41, the reason assigned for overruling the first exception was, that it should be intended that the bailiffs were likewise suitors.

(x) 8 H. 6, 34; 1 Roll. Abr. 322, (E.) pl. 1. See generally as to this plea, Com. Dig. Anc. Dem, (F. 5.)

(y) 7 H. 6, 35 b; 1 Roll. Abr. 322, pl. 7; Coke v. Barnsley, 1 Brownl. 234. So in assize of rent out of land in ancient de

mesne, Dy. 8, pl. 14; but see Br. Aunc. Dem. pl. 3; ib. Priviledge, pl. 7; vide post, pp. 589, 590, as to assize by tenant by elegit, and stat. merchant.

(z) 8 H. 6, 1; 1 Roll. Abr. 322, (E.) pl. 2; 4 Inst. 270. It might have been pleaded after a release of a default, upon the return of the grand cape; 8 H. 6, 1; 1 Roll. Abr. 324 (H.) pl. 1. In formedon tenant not allowed to plead ancient demesne after the view; Fitz. Abr. Aunc. Dem. pl. 12, cites Hill. 50 E. 3, 10. Contrà in præcipe quod reddat ; Br. Aunc. Dem. pl. 10, cites 50 E. 3, 9. The prayee in aid should not plead ancient demesne, because the tenant had affirmed the jurisdiction before by the aid prayer; Br. Aunc. Dem. pl. 15; 2 Vin. Abr. 488, (H.) pl. 4.

(a) Smith v. Arden, Cro. Eliz. 826; S. C. 2 And. 178; S. C. (called Alden's case), 5 Co. 105; S. P. Hob. 47, in Cox v. Barnsly; 1 Bulst. 108; 2 Roll. Rep. 181; Comb. 40; 4 Inst. 270.

judgment to take advantage of the change of tenure (b); 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 affidavit 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 where the four days would expire before cause could be shown, and the plea pleaded (ƒ).

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 it would seem to have been necessary in a plea of ancient demesne in formedon (g); yet it was formerly held that foreign pleas only, and not pleas to the jurisdiction, were to be sworn to (h). It should certainly seem that the plea of ancient demesne is good without a defence (i).

Ancient demesne is likewise a good plea in replevin (k); in a writ

(b) Neither in such a case could the suitors of the manor court refuse to execute a writ de procedendo ad executionem judicii; Gybon v. Bowyer, Mo. 451.

(c) Smith v. Roe, Barnes, 331; Sir G. Cooke's Rep. Pract. C. B. 103; Prac. Reg. C. P. 2; Holdfast v. Carlton, Sir G. Cooke, 43; Pease v. Badtitle, Barnes, 336; Bingham v. Barker, cited Barnes, 187; Doe & Thomas, Barnes, 185; Deighton d. Roberts & Wife v. Forster, 2 Barnes, 156; Denn d. Wroot v. Fenn, 8 T. R. 474. But see as to country cause, Doe & Robinson, 2 Str. 1120. The plea of ancient demesne has been allowed after imparlance, Marshall v. Allen, Latch. 83; S. C. Palm. 406; S. C. Cro. Car. 9; S. C. cited Willes, 239; Dy. 210 b, pl. 27; ib. 373 b, pl. 13 n; Com. Dig. Abatement (d1); yet see contrà in replevin, Vincent v. Wallis, Sty. 197. Vide also Hetl. 177; Clarke v. Hampton, 4 Jac., cited in Marshall & Allen, sup. ; ante, pt. 1, p. 512. (d) Barnard. Rep. B. R. 7, 352, 365; Andr. 368; 1 Sir W. Bl. 197; Tidd's Pr. 680, 8th edit.

(e) Smith v. Roe, sup. ; Doe d. Rust v. Roe, 2 Burr. 1046; Hatch v. Cannon, 3 Wils. 51; Tidd's Pr. 680, 8th edit. But formerly the affidavit was not thought necessary in ejectment; Goodright v. Shuffill, 2

Ld. Raym. 1418, cites Earl Coningsby'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,

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

(g) Hatch v. Cannon, ubi sup.; and see 1 P. W. 476, anon.

(h) 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 Pleading, 429. And see Goodtitle v. Rogers, Barnard. Rep. B. R. 7; 2 Vin. Abr. 503, pl. 27.

(i) 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 traversing that it was frank-fee; Br. Traverse, per &c., pl. 185.

(k) 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.