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 (b). 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 1st of January, 1834, and that he was not barred of his right to reverse such fine or recovery by any law in force on the first day of the then session of Parliament, and provided that the right of the lord shall in any manner have been recognised within 20 years immediately preceding the 1st of January, 1834, such lands shall, from the last mentioned day, again become parcel of the manor: And that no writ of disceit for the reversal of any fine or recovery shall be brought after the 31st of Dec. 1833; vide also 3rd & 4th Wm. 4. c. 27.

s. 36, in the Appendix, by which the writ of disceit is abolished from the 31st December, 1834.

(a) 2 Inst. 513. 1 Cru. 86. Hunt v. Bourne (or Burn), 1 Lutw. 770, 781. S. C. 57, 244, 339, 422. S.C. (Hunt v. Browne,) 3 Salk. 34. S. C. 1 Comy. 93.

(b) 1 Lutw. 770, 771, in Hunt & Bourne.

(c) Ib. 781,

(d) Hunt v. Bourne, sup.

(e) Elmes' case, Dy. 373. a. S. C. 1 And. 71.

(f) 2 Inst. 515. 4 Inst. 270.

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 (b).

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 (ƒ),

(e) 2 Inst. 513. Kitch. 191, 192. (1), pl. 1 to 7 incl. pl. 12. Fitz. Abr. mover plee, pl. Hunt v. Burn. Ante, p. 671 n. (a.) So equally in a recovery at the common law in an assize, 11 H. 4. 86. 2 Vin. Abr. 488. pl. 4. So a recovery in a præcipe quod reddat.

4 Inst. 270. 1 Roll. Abr. 324 Br. Aunc. Dem.

Cause de re10. 1 Salk. 57, in

F. N. B. 13 C. But the lands are not frank-fee before judgment. 2 E. 3. 26. Kitch. 191. A fine levied in C. B. by tenant in Ancient Demesne, in a warrantia chartæ, does not make the land frank-fee, for the land does not pass by it, 21 E. 3. 32 b. 1 Roll. Abr. 324, pl. 6. 2 Vin. Abr. 488. pl. 6.

(f) 1 E. 3. 5. 26 b. 2 Vin. Abr. 497. Zouch v. Thompson, 1 Salk. 210. 3 Salk. 35. Earl of Plymouth v. James, Lutw. 711. Humfry v. Bathurst. Ib. 740. Rex v. Firebrass. Pra. Reg. C. P. 373. Rex v. Comyns. Ib. 374. Griffith & Agard, 3 Leo. 117: In this case it was held to be sufficient that the words cujus hæres ipse est' were in the body of the writ without stating in the beginning of the writ, that the plaintiff was cousin and heir, &c.; and that the allegation de antiquo dominico dominæ reginæ Angliæ was good, without saying coronæ 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 (b).

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 (g).

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 (i). And if the lord's estate be

writ is not in the nature of a writ of error, and consequently that the limitation of twenty years, by 10 & 11 W. 3. c. 14, does not extend to the writ of Disceit. And see 2 vol. Preston on Conv. 102. For the form of the writ of Disceit, vide 1 Lutw. 711. But see reference to the Act of 3rd and 4th Wm. 4. c. 27; and 3rd and 4th Wm. 4. c. 74, ante p. 704, n. (c.)

(a) Zouch v. Thompson, 3 Lev.

419.

(b) 7 H. 4. 27. Br. Aunc. Dem. pl. 13. Ib. 15, cites 11 H. 4. 85. F. N. B. 97 D. (n. b & c.) Rex v. Mead, 2 Wils. 17. Slowel v. Lord Zouch, Plowd. 370. 1 And. 74.

(c) Zouch v. Thompson, 1 Salk. 210. S. C. 3 Salk. 35. S. C. Lord Raym. 179. Cockman v. Farrer,

Skin. 14. Plowd. 370. 3 T. R. 173.
And see 2 Vin. Abr. 497 (Q).
F. N. B. 13 C. (n. a). Br. Aunc.
Dem. pl. 39.

(d) Com. Dig. 348. E. 2.
(e) Zouch v. Thompson, sup.

(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's 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.

determined, it must be shown on the other side (a); nor is it necessary to show before whom the court was held, but only that the lands are pleadable in curia manerii (b).

When a fine is reversed by a writ of disceit, it ceases to be binding on the parties themselves (c), and consequently on the issue in tail (d); but whilst the fine remains in force the tenancy is changed by way of estoppel, and the parties themselves are bound (e); so also is a disseisee (ƒ).

It should seem, however, that a particular course of descent in ancient demesne lands, would not be changed by a fine at common law, in as much as a custom governing the descent runs with the land, and is in respect of the land, and not of the seigniory (g), the same as in gavelkind lands, the custom whereof is not changed by a fine or recovery at common law (h): But it has been said that a peculiar customary descent in gavelkind lands, runs not with the lands simply, but by reason of the ancient demesne, and that the custom would therefore be destroyed by a fine at common law (i).

Although a fine of ancient demesne lands cannot be reversed

(a) Zouch v. Thompson, ubi sup. (b) Earl of Plymouth v. James,

ubi sup.

(c) 4 Inst. 270. Kitch. 191, cites 8 E. 4. 6. 3 H. 4. 6. Lampet's case, 10 Co. 50. a.

(d) Cary v. Dancy, Cro. Eliz. 471. b.

(e) 21 E. 3. 25. F. N. B. 13 C. (n. a). 2 Leo. 192, ca. 240. Pending a writ of right close, the tenant accepts a fine come ceo, &c., yet the land remains ancient demesne as to that action. 12 H. 7. Rot. 103. F. N. B. 13 C. n. marg. (f) 7 H. 4. 3. F. N. B. 13 C. (n. a).

(g) 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.

(h) Finch's Law 15. Rob. Gav. [3d Ed. by Wilson] p. 90.

(i) Finch's Law 16, cites 6 E. 6, & Dy. sup. n. (g). Vide also Dal. 12. Per Montague, C. J., cited Rob. Gav. [3d 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. (g) sup. Vide also Doe & Huntington, 4 East 282, 290-3. Wiseman v. Colton, 1 Lev. 79. S. C. 1 Sid. 135.

as to one person, and remain good as to another, yet it may be reversed as to part of the land, and remain good as to the residue (a).

Of the manner of bringing the writ of Disceit.

When a fine is levied of ancient demesne lands in the Common Pleas, the ter-tenant is the person against whom the writ of disceit properly lies (b); and persons to whom estates in remainder are limited by the fine need not be named in the writ (c), but those in remainder are to be summoned by scire facias to show cause, if they can, why the fine should not be reversed (d).

The writ of disceit may be brought against the conuzee as well as the conuzor, and against the heir of the conuzor or conuzee, as the fine works a real disceit, and not a personal tort only (e). It may be brought, I apprehend, against the conuzor or conuzee alone (ƒ), but then there must be a scire facias against the ter-tenant (g).

(a) F. N. B. 98 P. 17 E. 3. 31. 21 E. 3. 20. Fitz. Abr. Disceit, pl. 37, 44. 1 Lord Raym. 178-9, in Zouch v. Thompson. 1 Lutw. 713. Keilw. 43, pl. 10. Lee & Loveday, 1 Leo. 290. S. C. 3 Leo. 120.

(b) 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.

2

(c) F. N. B. 97 D. n. b. & c. Vin. Abr. 496. (P. 2.) pl. 1, cites Thel. Dig. 48. lib. 5. cap. 17. s. 2; citing Trin. 26 E. 3. 65.

(d) 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.

(e) Zouch v. Thompson, sup. Yet it seems that the writ does 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.

(f) Win. Ent. 26. Herne 93. Lex Man. 36, marg. F. N. B. 97 D. (n. c).

(g) 7 H. 4. 44. 8 H. 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 tertenant shall not be turned out of possession without a scire facias."