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 be before the court, to prevent collusion between the lord of the manor and vouchee (a); 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 be in possession, and the conuzor releaseth to him by deed all his right, though the fine should be afterwards avoided, yet the conuzee shall hold the lands by virtue of the release (b); 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 (c): So also the estate of the conuzee shall stand after reversal of the fine, if confirmed by the heir of the conuzor (d): And after reversal of the fine, the heir of the conuzor shall not enter upon the ter-tenant, without a scire facias (e).

By what acts Ancient Demesne Lands become frank-fee.

Ancient demesne lands, as we have already seen (ƒ), may become frank-fee by a fine or recovery in the court of Common Pleas; and if the lord be a party to a fine at common law, he shall never afterwards have a writ of disceit (g): They are also made frank-fee by the lord's joining with the tenant in a fine upon a writ of warranty of charters (h).

(a) Rex v. Hadlow, 2 Sir W. Bl. 1170.

(b) F. N. B. 98 A. Kitch. 191. Lampet's case, 10 Co. 50 a.

(c) Lampet's case, sup.

(g) 30 E. 3. 13 b. F. N. B. 13 C. (n. a).

(h) 21 E. 3. 32 b. 1 Roll. Abr. 325, pl. 27. Contrà, if such a fine be levied by the tenant alone, Ib. 324,

(d) Drew Barrentine's case, 3 pl. 6, cites S. C. See reference to

Leo. 12.

(e) Cary v. Dancy, Cro. Eliz. 471 b. Lee & Loveday, 1 Leo. 290. 3 Leo. 120.

(ƒ) Ante, p. 706.

3d & 4th W. 4. c. 27, (by which the writ of warrantia chartæ is abolished after the 31st Dec. 1834,) ante, p. 695. n. (f)

A fine, with a grant and render to the tenant without execution, will likewise make the land frank-fee (a). So also a fine upon a release with warranty to the tenant (b); but it appears to be doubtful whether ancient demesne lands will become frank-fee by a fine upon a release without warranty (c). It should seem that a fine levied by the tenant without any original writ will make the land frank-fee till reversed (d).

And when lands held in ancient demesne escheat to the lord, they become frank-fee, as he then holds them of the lord paramount (e); and if he be disseised thereof his remedy is in the courts of common law (ƒ).

Again, if ancient demesne lands come to the king, they are frank-fee (g), even though the king grant them over again to another in fee or for life (h); and therefore to prove the land frank-fee, it is sufficient to show the feoffment or charter of the king (i): So, if the king give lands of ancient demesne, to hold in frank-almoign, they become frank-fee (k).

If the lord confirm ancient demesne lands to the tenant, to

(a) 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.

(b) 21 E. 3. 25. 1 Roll. Abr. 324, pl. 3. And see Griffith v. Clarke, Mo. 143.

(c) 40 E. 3. 4. b. 1 Roll. Abr. 324, pl. 5.

(d) 26 H. 8. Ass. 13. 1 Roll. Abr. 324, pl. 7.

(e) Kitch. 191, cites 18 Ed. 3. 19. Com. Dig. Anc. Dem. (C. 2). (ƒ) 41 Ass. 7. Br. Aunc. Dem. pl. 34. Fitz. Aunc. Dem. pl. 18.

(g) Kitch. 190, 191. 1 Roll. Abr. 324, pl. 9, cites 17 E. 3. 52. 75 B. 21 E. 3. 46 b; cites also contrà 18 E. 3. 19. 21 E. 3. 56. 21 Ass. 13. (h) 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.

(i) 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.

(k) 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 ancient demesne is by socage only. F. N. B. 13 D. Ib. 14 B. & C. 4 Inst. 270.

hold by the same services, there could be no change of tenure, I apprehend, except such confirmation should be by fine come ceo, &c. (a); but if the lord confirm to the tenant, to hold freely, by the services before due, this makes the land frankfee (b); yet the tenure only is changed, and not the estate of the tenant (c).

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 (dd).

But if the lord enfeoff another of the tenancy (e), even with a saving of the ancient services (f), the land will become frankfee. And it has been decided that a release by the lord, by fine, of all services and customs, excepting certain specified services, will extinguish the tenure of ancient demesne (g); 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 changed otherwise than in quality (h).

(a) 30 E. 3. 13. b. 1 Roll. Abr. 325, pl. 28. Griffith v. Clarke, Mo. 143. Ante po 682.

(6) 30 E. 3. 13. 1 Roll. Abr. 325, pl. 23; but see Fitz. Abr. Aunc. Dem. pl. 30.

(c) Kitch. 191, cites 49 E. 3. 7. Beaumont's case, 9 Co. 140.

(d) In favour of the lands becoming frank-fee, vide 21 E. 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 contrà. 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 services no frank-fee. Kitch. 191, cites 30 E. 3. 16.

(e) 1 Roll. Abr. 324, pl. 12. Ib. 326, pl. 3.

(f) For he cannot hold by the ancient services. 1 Roll. Abr. 325, pl. 20. Fitz. Aunc. Dem. pl. 41.

(g) 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 Vol. on Cop. 368.

(h) Per Belknap, C. J. 49 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 (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 (b).

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 (ƒ).

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. 682.

(a) Doe & Huntington, 4 East 271. Ante, p. 680, et seq.

(b) 21 Ass. 13. Kitch. 190. But if granted to hold of another manor, the lands would remain frank-fee. F. N. B. 13 C.

(c) 11 H. 4. 84. Kitch. 191. Ib. 192, cites 17 E. 3. 52. But see 2 Vin. Abr. 489, pl. 10.

(e) 21 E. 3. 33. 1 Roll. Abr. 325, pl. 30.

(f) 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.

(d) 1 Roll. Abr. 326. L, pl. 4, marg. cites 21 Ass. 13. cites 21 E. 3. 46 b.

VOL. II.

E

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 (b).

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 (ƒ), 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. (b) Ib. cites contrà, 30 E. 3. 13. b. (c) Kitch. 191. Ante, p. 706. (d) But see 50 E. 3. 24. b. 1 Roll. Abr. 326 (L), pl. 3, where it is said, that if the land be made frank-fee as to those in possession, yet it shall not be said to be frank-fee as to those who claim paramount this making of it frank-fee.

(e) 3 E. 3. 33. 1 Roll. Abr. 326 (L), pl. 3, cites 50 E. 3. 24 b. Therefore, if in such case judgment be given in the court of ancient demesne, and the recoveror enters, in trespass

brought against him for the entry, he cannot justify by force of the recovery there, for it was coram non judice. F. N. B. 13. C. Ib. (n. a.), cites 7 H. 4. 3. And see 2 Preston on Conv. 102.

(f) 20 H. 6. 33. 41. Ass. 7. F. N. B. 12 E. 1 Roll. Abr. 325, pl. 17.

(g) 30 E. 3. 13. 41. Ass. 7. Fitz. Aunc. Dem. pl. 18. F. N. B. 12 E. 1 Roil. Abr. 325, pl. 18.

But as to the writ of right close, vide reference to the act of 3d & 4th W. 4, c. 27, ante p. 695. n. (ƒ). And see the act in the Appendix.

END OF THE SECOND PART.