Jurisdictions, Part 89 – Part 94
Now let us ſee what is appendant, and what appurtenant.
Common appurtenant is, for all manner of Beaſts, and appendant is but to have common for Beaſts commonable, Natura brevium, fol. 70. That appurtenant is, with all manner of Beaſts by preſcription, 9 Ed. 4. fol. 3. by Fairfax.
By Priſot, Common appendant is to have common for Horſes, Beaſts, Kyne, and Sheep, which are commonable, and which are moſt fit for the Ploughman, and not for Geeſe, Goats, and Hogs, 37 H. 6. fol. 34.
If one hath a common of Eſtovers by Grant, he cannot build another new Houſe to have Eſtovers to that, Fitzh. fol. 180. h.
Admeaſurement lyes between Commoners which have common appendant to their Free-hold, if one of them ſurcharge the common, by putting in more Beaſts then they ought to common, Fitzh. fol. 125. B. D.
He which hath Common appurtenant to a certaine number, or common by ſpecialty to a certaine number, ſhall be admeaſured: But he which hath common appurtenant without number, or in groſſe without number, ſhall not be admeaſured, 26 H. 8. fol. 4.
Common appendant, cannot be aliened and ſevered, but common appurtenant may, 5 H. 7. fol. 7. B. and 9 Ed. 4. fol. 39. A.
He which hath Common appendant cannot uſe that common with other Beaſts, but thoſe which are riſing and lying upon his Land, 15 Ed 4. fol. 32.
Termor cannot put any Beaſts into the Common, but thoſe which hee hath to manure his Land, or for his houſhold, and not for to ſell, 14 H. 6. fol. 6.
A man grants Land, and a Turbary, this doth not make the Turbary appendant, unleſſe it were appendant from time out of minde, 8 Book of Aſs. 9.
Common is to be taken by the mouth of Beaſts, 31 H. 8. tit. 151.
Commoner hath no intereſt in the Land, but to take that with the mouth of his Beaſts, and cannot have treſpaſſe (why he broke his Cloſe) againſt one which makes treſpaſſe in the common, but may diſtraine them doing damage, 12 H. 8. fol. 2.
There are foure manner of Commons, that is to ſay, Common appendant, Common appurtenant, Common in groſſe, and Common becauſe of Neighbourhood, Natura brevium, fol. 69.
Common appendant is to Land arable onelyonly, 26 H. 8. fol. 4. by Hales. It ſeemes it may be appendant to a Mannor, Land, or Tenements, Fitzh. 139. L.
It may be appendant by reaſon of a Houſe, Natura brevium, fol. 70.
Where one hath Common becauſe of Neighbourhood in the Land of J. S. he cannot put in his Beaſts in the waſte of J.S. but in his owne Land, which may goe if they will into the waſte of J. S. 13. H. 7. fol. 13. &c.
Aſſiſe of Novell Diſſeiſin lyeth of Common of paſture, Turbary, and Fiſhing, where he hath that for life, or in taile, or in Fee, and is diſturbed that he cannot take his common; and the Writ ſhall be, hee diſſeiſed him of a common of paſture in D. and not diſſeiſed him of his Free-hold in D. as where it is of Land, for there it is alwayes, hee diſſeiſed him of his Free-hold, Fitzherbart, fol. 179. L.
Common appendant a man cannot uſe with Beaſts of a ſtranger, unleſſe hee keepe them to dung his Land, but hee cannot take in other Beaſts for Money, which doe not manure his Land: See 6 H. 7. fol. 14. Fitzherbart 180 B.
If a man claime Common for Beaſts without number, there he may put in other Beaſts of a ſtrangers for Money in that Common; otherwiſe it is in Chaſe or Forreſt where the Lord hath Deer, Fitzh. 189. B.
He that hath Common ought to uſe that with his owne Beaſts, or with Beaſts which dung his Land, or with Beaſts allowed for their Milk, and cannot take in any, 22 Book of Aſs. 82.
He which hath Common by ſpecialty, cannot take in Beaſts, but he that hath Common for Kine for their Milk, or for Beaſts to manure his Land, for Sheep allowed to dung his Land, for he hath right in them for the time, 45 Ed. 3. fol. 26.
A way appendant to a Houſe ſhall not be made ingroſſe, but Common appurtenant and Advowſon may, 5 H. 7. fol. 7.
Where the King grants Common to an Abbot and his Succeſſors without number, out of a Mannor, and after he grants the Mannor to another, and after the Abbey is diſſolved, it ſeems for that that it is Common without number, the King ſhall not have it; but if it were Common certaine, the King ſhall have it, 27 H. 8. fol. 20.
Common appendant ſhall be uſed with his proper Beaſts and not with others Beaſts, and the Defendant was admitted to preſcribe for Common appendant, 6. Hen. 7. fol. 14.
He which hath Common appendant, cannot uſe that, but with his owne proper Beaſt or Beaſts, which dung his Land; but he which hath Common for twenty Beaſts by Grant, or with Beaſts without number, he may uſe that Common with others Beaſts, 11 H. 6. fol. 22. Fitzh. 180. B. the ſame.
A man need not preſcribe in Common appendant, but it ſufficeth to ſay, that he is ſeiſed of three Acres in D. and that he hath Common appendant, &c. 4 H. 6. fol. 13.
He which juſtifies for Common appendant, need not preſcribe in that alſo, 22 H. 6. fol. 10.
Common appendant cannot be but by continuance of time out of memory, &c. 5 Book of Aſs. 2.
Courts.
In what place a Court-Baron ſhall be held.
COurt-Baron by Brian ſhall be held in a place certain, but I have heard, that it may be kept in any place within the Mannor, that the Tenants have notice to make their ſuit, and it is good, 8 H. 7. f. 4. A. and ſo it is, 24 Ed. 3. that it need not be in a place certain, and by Glanvile, fol19. It ought to be held in a place within the Mannor and not out of the Fee.
Which is Court-Baron, and which is Court of Record.
COurt of ancient Demeſne is no Court of Record, but it is a Court-Baron, 9 Ed. 4. fol. 43. and 3 H. 4. fol. 16. the ſame.
Where the entry is (to the great Court) this is a Court Baron, as it is aforeſaid, 10 Ed. 4. fol. 17.
Where Suitors are Judges, Suitors Judges.and where falſe judgment lies and not errour, as in Court of a Mannor, Hundred, and County, theſe are Court-Barons, 6 Ed. 4. fol. 3. B.
Court by Commiſſion before the Juſtices of Peace, that is to ſay, their Court of Seſſions, &c. are Courts of Record, 9 H. 6. fol. 3.
If a man be arreſted in the Cinque ports, he ſhall have a (Homine replegiando) if according to the Law and cuſtom of the Ports he be repleevable, Eitzh. fol. 67. A
Great complaint was againſt the Officers of the Caſtle of Dover, for holding Plea above forty ſhillings, where they have but a Court-Baron, and for arreſting men by the body of their Warrant and (Gapias) but it ſeems they have a Charter now, for it is uſed there to arreſt, 5 E. 4. f. 127.
Treſpaſſe of impriſonment, the Defendant ſaith, that there is a Court by preſcription within the Tower, and doth preſcribe to have (Capias) and not that it is there (Capias) without preſcription, and juſtifie that by (Capias) &c. And ſo this appeares to be Courts of Record, 4 Ed. 4. fol. 6.
Error lies wherefalſe judgment is given in any Court of Record, as in the common Bench, or London, or other City where they have power to hold Pleas by Charter, or by preſcription, of every ſum in Debt or Treſpaſſe, of the ſum of forty ſhillings and over, Fitzh. fol. 20.
If falſe judgment be given in Court of ancient Demeſne, the Tenant or Demandant ſhall have falſe judgement, which proves that it is Court-Baron, Fitzh. fol. 11.
Court of Pipowders is a Court of Record, Fitzh. fol. 18. H.
Where the Courts hold Plea by preſcription above forty ſhillings, they are Courts of Record, 6 Edw. 4. fol. 3.
Marſhalſey is a Court of Record, for if they err, there lies a Writ of errour, 10 H. 6. fol. 13.
Where they have conuſance of every ſum, as in London, and in other Cities and Borroughs, are Courts of Record, 2 H. 4. fol. 4.34. H. 6. f. 52. the ſame; and 45 E. 3. fol. 1.
Error lies where falſe judgment is given in any Court of Record, as in the common Bench, or in London, or other City, or in other place, where they have power to hold Plea by Charter or preſcription of every ſum of forty ſhillings and over, theſe are Courts of Record, Fitzh. fol. 20. D.
Leets and Turns of the Sherif are Courts of Record, for that they are for the common-Wealth, Eitzh. fol. 82.10. H. 6. fol. 7. It is ſaid that the Leet is a Coutt of Record, and for that he cannot wage his Law in Debt brought upon Amerciament in Leet.
The Kings Bench, Chancery, common Bench, and the Exchequer, are Courts of Record, for that, that no Judg may ſit as Judge there without Letters Patents, Doctor and Student f. 11.
Ancient Demeſne.
Inſomuch that a Court of ancient Demeſne is a Court-Baron, let us ſee in what action brought at the Common Law, ancient Demeſne is a good Plea, and in what not, and what action may be ſued in ancient Demeſne, and what not.
ANcient Demeſne is no Plea in an action upon the Statute, R. 2. 2. H. 7. fol. 17.
It is no Plea in Treſpaſſe, but in Replegiare and Writ of Ward, 46 Ed. 3. f. 1.
It is no Plea in Treſpaſſe, 47 Ed. 3. fol. 22.
Ancient Demeſne is a good Plea in Replegiare, and not in Treſpaſſe, 40 Ed. 3. fol. 4.46. Ed. 3. fol.
Plaint of freſh force may be ſued in ancient Demeſne, without a Writ of Right cloſe, as it ſeems, but another plaint of Land cannot be ſued there without a Writ of Right cloſe, 26 H. 6. fol. 5.
Ke-diſſeiſin and Poſt-diſseiſin cannot be ſued in ancient Demeſne, for the Sherif and Coroners cannot inquire there; but ſaid that waſte may be ſued there by a Right cloſe 32 H. 6. f. 29.
If a man bring waſte at the common Law, it is ſaid that ancient Demeſne is a good Plea, 7 H. 6. fol. 37. and 8 H. 6. f. 83. The Opinion of all the Juſtices, that it is a good Plea in waſt, for that that by this recovery, judgment is to recover the place waſted, and by this the Land ſhall be frank Fee, 1 H. 4. fol. 5. The Lord in ancient Demeſne cannot hold Plea in Rediſſeiſin and waſte by Hull, for that, that the Sherif is Judge and not the Lord.
Warranty of Charters may be ſued at the common Law, and ancient Demeſne is no Plea, for VVarranty is by Deed out of the L…nd, Fitzh. 135.
Juris utrum, at the common Law, ancient Demeſne is no Plea, for he cannot have a (Right cloſe) for that, that Frank-almaigne cannot be held there, but the Tenure there is Socage, Abridg. Aſs. fol. 16.6. Ed. 3. f. 20. the ſame, Statham.
Detinue of Charters at the common Law to plead ancient Demeſne, is no Plea, 13 Ed. 3. fol. 67. Statham.
Fitzh. 136. In a VVrit of Meſne, ancient Demeſne is a good Plea.
In (Quid juris clamat) brought at the common Law, to plead ancient Demeſne is a good Plea, 20 Ed. 3. Statham fol. 20.
In an action upon the Statute of R. 2. brought at the common Law to plead ancient Demeſne is no Plea, but in account or Replegiare it is a good Plea, 21 Edw. 4. fol. 3.
VVhere dammages are recovered in ancient Demeſne, and Debt is brought in the common Bench upon the ſame dammages, it is no Plea for the Defendant to plead ancient Demeſne, 39 H. 6. fol. 3.
Ancient Demeſne is a Court-Baron, and the Suitors are Judges.
DEbt was brought in common Bench for dammages recovered in ancient Demeſne, the Defendant pleads no ſuch record, and is no Plea, for it is a Court-Baron, but no ſuch recovery is good, 9 Ed. 4. fol. 44. B. 50. Booke.
Suitors are Judges in ancient Demeſne, 34 H. 6. fol. 38. Na. Bre. fol. 12. the ſame.
Suitors are Judges in ancient Demeſne, and not the Bailifs, 12 H. 4. fol. 17.
Plea ſhall not be removed out of ancient Demeſne, unleſſe for falſe Judgment, 13 H. 4. fol. 16. Fitzh. fol. 12. a the ſame, and that proves that this is a Court-Baron.
Suitors are Judges in ancient Demeſne, for that it ſhall not be removed, for that the Bailifs maintaine, 3 H. 4. fol. 16. See 6 H. 4. fol. 2.
Upon (Pone) to remove Plea out of ancient Demeſne, the Sherif returns that the Suitors will not ſend the Record by which iſſued a Diſtreſſe againſt the Suitors, 18 Ed. 3. Statham.
Falſe Judgment was brought in the common Bench upon a judgment given in ancient Demeſne, in a VVrit of Right cloſe, and though judgment was given in that in the common Bench, yet the Land ſhall be ancient Demeſne, as it was before.
By Knivet, Fine levied in ancient Demeſne is nothing worth, for it is no Conrt of Record, but common recoveries are uſed there to cut off an intaile, 50 Aſs. 9. No Land may be pleaded there by right cloſe, and not elſe where.
How Land in ancient demeſne is made frank Fee for a time, and how for ever.
DUring the time that Lands in ancient Demeſne is in the hands of the King, it is Frank Fee, but if the King grant that over to hold of the Mannor againe, it is ancient Demeſne againe, 21 Book of Aſs. 13.
If Recovery or Fine be in Common Bench of Land in ancient Demeſne, the Land is Frank fee, till it be defeated by the Lord, by Writ of Deceit, and when that is defeat, it is void to bind the parties, 8 Ed. 4. fol. 6. See 3 H. 4. fol. 6. accordingly.
If the Tenant in ancient Demeſne enfeoffe his Lord of the Mannour, being common perſon, and not King, the Lordſhip is Frank ſee for ever, 9 H. 6. fol. 24. B. 3 H. 4. fol. 16. the ſame.
Where the King gives Land of ancient Demeſne, to hold in Franke Almaigne, that is Franke fee, 6 H. 4. fol. 2.
Where a Fine is in common Bench, of Land in ancient Demeſne, is Frank fee; ſo that after if a Recovery of that be in ancient Demeſne, it is void (and before not a Judge) 7 H. 4. fol. 3. B. 7 H. 4. fol. 29. the ſame.
If the King was once ſeiſed of Land in ancient Demeſne, and lett that for life, it is Frank fee for the time, 11 H. 4 fol. 84.
Where Land in ancient Demeſne is forfeit to the King by attainder, and the King grants that over to another and his heires, now they are Frank fee for ever, 13 H. 4. fol. 7.
Where a Fine is levyed of Land in ancient Demeſne, in the Common Bench, the Lord may defeat that by a Writ of Deceipt; and yet if he to whom the Fine was, &c. hath a Releaſe, with confirmation of the party, made after the Fine, his Eſtate is good, notwithſtanding that the Fine be defeated, Fitzh. 98. a.
The Leſſor by his confirmation to his Tenant, may make the Land in ancient Demeſne Frank fee, but if he confirme to hold by meaner ſervices, it is no Frank fee, 30 Ed. 3. fol. 16.
Where Land in ancient Demeſne Eſcheats to the Lord, for that, that the Tenant dyes without heire generall or ſpeciall, are Frank fee for ever, for he holds them now of the Lord Paramount, 18 Ed. 3. fol. 19.
If the Tenant in ancient Demeſne, anſwer the action in Precipe, in the Common Bench, yet it is no Frank fee before Judgement given, 2 Ed. 4. fol. 26.
The Lord by his confirmation may alter the tenure, but not the eſtate of the Land, where he confirmes to hold at the Common Law, 49 Ed. 3. fol. 7.
Fine at the common Law, recovery, or where he is in by the Kings Charter, or by feoffment of the Lord, theſe prove the Land frank Fee and not ancient Demeſne, Fitzh. fol. 13. C.
If the King be ſeiſed of Land in ancient Demeſne, this is Frank fee, but if the King demiſe it to another, the Land is ancient Demeſne again, 17 Ed. 3. fol. 52.
A man recovers in ancient Demeſne Lands, which were at the common Law againſt a man by Verdict of a Jury, and he againſt whom the recovery was, brought an Aſſiſe upon that, and awarded, that he ſhould recover Seiſin, 30 Ed. 1. Tit. Aſſiſe 379.