(I) Of Amendments in Equity.

they are in the discretion of the courts. The admission of a fact is never allowed to be struck out, (a) but on an affidavit of surprise, or the defendant being ill advised. But where an amendment is admitted in the bill, (b) where, through inadvertency, a mistake is made, as to a fact or date, (c) where there is no danger of perjury, (d) where the case depends upon old documents, lies pretty much in the dark, and new matter is discovered, which affords the defendant a good defence; the courts have allowed amendments to be made, either by striking out passages, or making new facts, and this after issue joined, (e) or upon the hearing of the cause. If new matter has arisen, the practice is to add to it by way of supplemental answer; for the defendant will not be permitted to take the old answer off the file, and put in a new one.]

Woodgate v. Fuller, Barnard. Ch. R. 50; 1 Eq. Ca. Abr. tit. Amendment, p. 4. It is only under very special circumstances that the defendant will be allowed to amend his answer. M'Kim v. Thompson, 1 Bland. 162. The allowance of such amendment is always within the discretion of the court. Liggon v. Smith, 4 H. & M. 405; and this discretion is vested in courts of original chancery jurisdiction. Coffman v. Allin, Litt. Sel. Cas. 201. See 3 Wend. 573. (a) Rawlins v. Powell, 1 P. Wms. 297; Pearce v. Grove, 3 Atk. 523; Ambl. 65, S. C. (b) Filkin v. Hill, 2 Bro. P. C. 194. (c) Wharton v. Wharton 2 Atk. 294. (d) Berney v. Chambers, Bunb. 248; Holliday v. Nabb. Bunb. 323. (e) Phillips v. Gwynne, cited in Mitf. Eq. Tr. 261. But the author adds, that in later cases this indulgence has been refused. However, in the case of Moggridge v. Hudson, the Court of Exchequer thought that there were many cases in which it was highly necessary that it should be given. In that case, Richards moved to file a supplemental answer to a bill for an account of tithes, upon an affidavit of the discovery of new matter. The motion was opposed by Abbot, who insisted that it was the rule of the court not to suffer a supplemental answer to be put in after issue joined. The Chief Baron admitted the general rule to be as Abbot stated; but said there were many excep tions to it. That if they were to refuse it, another bill might be filed for an account, and then it might appear that the plaintiff ought not to have had a decree in this instance, by reason of the matter now offered; that tithe cases were entitled to peculiar indulgence, depending upon old documents, and lying in remote antiquity. Perryn, B., added, that he had known many instances of supplemental answers being allowed in similar circumstances; but, supposing there were no precedent, the motion seemed so reasonable and so necessary, that the court ought to make one. Easter Term, 34 G. 3. Where the amendment is not in a very material point, it may be made without notice; but where it is, it cannot be made without notice, and also payment of costs. 1 Harr. Ch. Pr. 307. Liggon v. Smith, 4 Hen. & Munf. 405. g

After issue joined, and the cause has been set down for hearing, the defendant may be allowed, for good cause shown, to amend his answer, and to plead the statute of frauds and the statute of limitations.

Jackson's Assignees v. Cutright, 5 Munf. 305.

|| The practice formerly was, to permit the amendment of an answer in case of mistake: now a supplemental answer is put in. But where there is a mere mistake in a name, the answer has been allowed to be taken off the file and resworn.||

Wells v. Wood, 10 Ves. 401; Dolder v. Bank of England, 10 Ves. 285; Jennings v. Merton College, 8 Ves. 79; Strange v. Collins, 2 Ves. & B. 163; Taylor v. Obee, 3 Price, 83; sed vide 1 Madd. 269; Griffiths v. Wood, 11 Ves. 63.

[An answer shall not be amended after an indictment for perjury preferred or threatened. Yet if there were circumstances extremely strong to show that it was only a mere mistake, (g) it might be otherwise.

Earl Verney v. Macnamara, 1 Bro. Ch. R. 419. (g) Vaux v. Lord Waltham, cited, Ib.; Woodgate v. Fuller, Barnard. Ch. R. 51; Wharton v. Wharton, 2 Atk. 294.

(A) The Nature of the Tenure, and how Proved.

An infant may amend his answer when he comes of age, and therefore no exceptions can be taken to it.

Strudwick v. Pargiter, Bunb. 338. Winston v. Campbell, 4 H. & M. 447; acc. g Where it appears that either the examiner is mistaken in taking a deposition, or the witness in making it, it may be amended after publication.

Griells v. Gansell, 2 P. Wms. 646. || See 1 Cox, 281; 3 Swanst. 357; 1 Bligh. N. S. 225.

A mistake in the title of an order was allowed to be amended, though for the purpose of charging a surety who had entered into a recognisance to abide the order of hearing.

Speering v. Lynn, 2 Vern. 376; Pr. Ch. 115, S. C.; 1 Eq. Cas. Abr. tit. Amendment, p. 6, S. C. See 2 Meriv. 395; 8 Price, 606; 1 Sim. & Stu. 94.||

Where there was a mistake in the title of the interrogatories, neither the depositions were permitted to be read, nor the title to be amended, though most of the witnesses were gone abroad. But qu.]

White v. Taylor, 2 Vern. 335; 1 Eq. Ca. Abr. tit. Amendment, pl. 7, S. C.

Decrees of a court of chancery may be amended where there is a clear mistake, (a) or where there is an omission of any matter which would have been inserted as a matter of course, (b) or a clerical error. (c)

(a) Armstrong v. Potts, 1 Moll. 257; Murray v. Blatchford, 2 Wend. 221; Williams v. Jones, 13 Price, 265, S. C.; _M‘Clel. 96. (b) Gardner v. Dering, 2 Edw. 131; Davis v. Morris, 13 Price, 766. (c) Tomlin v. Palk, 1 Russ. 475.

During the term, decrees or orders may be rescinded or altered on motion, afterwards by bill; (d) but, although it has been passed and entered, a decree may be corrected on motion, at any time before enrolment. (e) Where a party has been guilty of gross laches, before applying for the correction of a mistake in drawing up a decree, leave to amend will not be granted. (g)

(d) Burch v. Scott, 1 Bland, 120; Bramblett v. Pickett, 2 A. K. Marsh. 11. (e) Lawrence v. Cornell, 4 John. Ch. 546. (g) Rogers v. Rogers, 1 Paige, 183.

ANCIENT DEMESNE.

(A) The Nature of the Tenure, and how proved.

(B) Of the Privileges annexed to Ancient Demesne.

(C) How it may become Frank-fee.

(D) Where Ancient Demesne may be pleaded, and the Form thereof.

(A) The Nature of the Tenure, and how proved.

ALL those lands which were in possession of Edward the Confessor, and afterwards came to William the Conqueror, and were by him,

(B) of the Privileges annexed to Ancient Demesne.

about the 20th year of his reign, set down in a book called Doomsday, under the title De Terra Regis, are (a) ancient demesne lands; these were exempt from any feudal servitude, and were let out to husbandmen to plough and cultivate for supplying provisions and necessaries for the king's household and family; and for this purpose the tenants (who are called by Bracton villani privilegiati) enjoyed certain privileges, and the tenure itself had several properties distinct from those of other tenures, which it retains to this day, though the lands be in the hands of a subject, and the services changed from labour to money.

4 Inst. 269; 2 Inst. 542; F. N. B. 14; Salk. 57, pl. 2; Black. T. R. 4to, 218, 231. (b) Lands which are next or most convenient to the lord's mansion-house, and which he keeps in his own hands for the support of his family, and for hospitality, are called his demesnes, but have not the same properties with ancient demesne. Spelm. 12.

This tenure, my Lord C. J. Holt, says, is as ancient as any other, though he supposes that the privileges annexed to it commenced by some act of parliament, for that it cannot be created by grant at this day. Salk. 57, pl. 2.

The lands which were in the possession of Edward the Confessor, and were given away by him, are not at this day ancient demesne; nor are any others, except those writ down in the book of Doomsday; and therefore, whether such lands are ancient demesne, or not, is to be (a) tried only by that book.

Salk. 57, pl. 2; 4 Inst. 269; Hob. 188; Brownl. 43. (a) Where the book of Doomsday was brought into court by a certiorari out of Chancery, directed to the treasurer and chamberlain of the Exchequer, and by mittimus sent into the Common Pleas,* issue was taken whether Longhope in the county of Gloucester, was ancient demesne or not; and on producing the book of Doomsday, it appeared that Hope was ancient demesne, but nothing said of Longhope: and the court held, that the party failed in his proof. Lev. 106; Sid. 147. [Proof of the name being varied cannot be admitted, without its being averred on the record. Ib. Bull. Ni. Pri. 248, (4th edit.) Doomsday-book will not show whether the lands themselves are ancient demesne; it will only show whether the manor is so or not. 2 Burr. 1048.]

[* The authority referred to for this passage is Dyer, 150, b; but the editor has not been able to find any thing to this effect, either in that page, or in any other part of that book. The writ in the register does not require the production of the book itself, but only a certificate of the fact from the treasurer and chamberlain of the Exchequer. F. N. B. 16, C. (9th edit.)]

But if the question is, Whether lands be parcel of a manor which is ancient demesne? this shall be tried by a jury.

Salk. 57, pl. 2. Where an acre of land may be ancient demesne, though the manor of which it is parcel is not so, vide Roll. Abr. 321, and for this vide F. N. B. 14; Leon. 232; Dyer, 8; 11 Co. 10; Bro. Ancient Demesne, 15; 2 Leon. 191; 3 Lev. 405.

(B) Of the Privileges annexed to Ancient Demesne.

My Lord Coke enumerates the six following privileges which tenants in ancient demesne are to enjoy. (b) 1. That they shall not be impleaded for any of their lands, &c., out of the said manor, but are to have justice administered to them at their own doors, by petit writ of droit close, directed to the bailiffs of the king's manors, or to the lord of the manor, if it be in the hands of a subject.

4 Inst. 269, vide Roll. Abr. 323. (b) But it must appear first that the land is ancient demesne; for if a fine levied of those lands in C. B., be still in force, the lands are frank-fee till it is reversed; and therefore may be impleaded at common law. 2. The land must be holden of the manor, being ancient demesne. 3. It must not be holden by knight-service, because husbandry is the cause of the privilege. 4. It is said that the

(B) Of the Privileges annexed to Ancient Demesne.

tenant may remove the cause out of the lord's court, if there be no suitors, or but one suitor, for that the suitors are judges; otherwise there would be a failure of justice. 5. If the tenant accept a release of his lord of his seignory, or the seignory be otherwise extinguished, by reason of the seisin of the king or otherwise. 6. Or if the lord disseise his tenant, and make a feoffment in fee. 7. If the lord grant the services of his tenant, and the tenant attorn. 4 Inst. 269. Also if the manor and demesnes of the manor are in dispute they must be impleaded at common law, and not in the lord's court; otherwise the lord would be judge in his own cause. Salk. 56, pl. 1.

2. They cannot be impannelled to

appear at Westminster, or elsewhere in any other court, upon any inquest or trial of any cause.

4 Inst. 269. That they may have a writ de non ponendis in assissis et juratis against the sheriff, or any one who hath the return of writs; and if, notwithstanding such writ, the sheriff will return them, they may have an attachment. F. N. B. 166.

3. They are free and quiet from all manner of tolls in fairs and markets, for all things concerning (a) husbandry and substance.

4 Inst. 269; Roll. Abr. 321, S. P. (a) But this privilege does not extend to him who is a merchant, and gets his living by buying and selling, but is annexed to the person in respect of the land, and to those things which grow and are the produce of the lands. F. N. B. 228; 2 Leon. 191; Cro. Eliz. 227; Leon. 231, 233; 2 Inst. 221, S. P. Vide 2 Lutw. 1144, and how it must be set forth in pleading; and that this privilege extends to tenant in ancient demesne, whether he hold in fee, for life, years, or at will. Roll. Abr. 322; 2 Leon. 191. [Qu. as to tenant for years, or at will; and see 2 Burr. 1047.]

4. They are to be free of taxes and tallages by parliaments, unless they be specially named.

4 Inst. 269. That regularly all general acts of parliament extend to ancient demesne lands, vide 4 Inst. 270; And. 71.

5. That they were not to contribute to the expenses of knights of parliament.

4 Inst. 269.

6. That if they be severally (b) distrained for other services than they are obliged to by the custom of the manor, they all, for the saving of charges, may join in a writ of monstraverunt, albeit they be several

tenants.

4 Inst. 269. (b) Where the tenants in ancient demesne are distrained to do the lord other services or customs than they or their ancestors have formerly done, they may have a writ of monstraverunt directed to the lord, commanding him not to distrain for other services; and if he will still distrain, &c., then, by a writ directed to the sheriff, he may command him not to demand or distrain for other services; and if he still persists, then he may raise the posse comitatus, or command the neighbours to rescue and destroy the distress; but the usual course is, that if, after the writ to the sheriff, the lord will distrain, then an attachment lies against him, returnable in one of the courts of record at Westminster, to answer the contempt. Plowd. 129.

Lands in ancient demesne are extendable upon a statute-merchant, staple, or elegit.

4 Inst. 270; Moor, 211, S. P. Lands in ancient demesne upon an elegit, may, by the sheriff, be delivered in execution, because the title of the land is not directly put in plea in the king's court; adjudged. Hob. 47; Moor, 211, pl. 351; and Brownl. 234, S. C.

In an indictment for not taking upon him and executing the office of a constable, to which he was chosen by the leet, the question was, Whether a tenant in ancient demesne was obliged to execute that office? and the court held he was.

(C) How it may become Frank-fee.

Ir a fine be levied, or recovery suffered of lands in ancient demesne, this makes them frank-fec.

4 Inst. 270; 10 Co. 50.

But if the lord be not a party, he may (a) have a writ of disceit, and avoid the fine or recovery; (b) for lands in ancient demesne were not originally within the jurisdiction of the courts of Westminster; but the tenants thereof enjoy this among other privileges, not to be called from the business of the plough by any foreign litigation.

7 H. 4, 44; Roll. Abr. 327. (a) But cannot bring a scire facias, because not a party to the fine or recovery. 3 Lev. 419. That a termor may have a writ of disceit, and make it ancient deinesne, at least during his term. Roll. Abr. 327. [(b) An action on the case, in the nature of disceit, to reverse a recovery of lands in ancient demesne, was brought against the vouchee only, as cestuy que use, which was confessed by the plea. On motion to enter up judgment, the court refused it, because all the parties to the recovery were not before them; and the vouchee not appearing to be cestuy que use, otherwise than by his own acknowledgment, there was danger of collusion between him and the lord of the manor, to reverse a recovery of land in frank-fee, and so turn it into ancient demesne. Rex v. Hadlow, 2 Black. R. 1170. Vide Rex v. Mead, 2 Wils. 17. The lord is not barred of his writ of disceit by the death of any of the parties to a fine. Zouch v. Thompson, 1 Ld. Raym. 177.]

But if the lord be party, then the lands become frank-fee, and are within the jurisdiction of the courts of Westminster; for the privilege of ancient demesne being established for the benefit of lord and tenant, they may destroy it at pleasure.

2 Roll. Abr. 324; Salk. 57, pl. 2.

If a fine be levied of lands, part ancient demesne, and part frank-fee, and the lord brings a writ of disceit, the Court of B. R., upon view of the transcript of the record, and proof that part are ancient demesne, will reverse and avoid the fine as to that parcel; but they will not order the fine to be torn off the file, as in cases where the whole fine is reversed, because it shall stand good as to the frank-fee; but they will order a mark to be made on the fine, to signify that it is cancelled as to that part; and in this case the terre-tenant must be made party by scirefacias; for otherwise the conusance of him that was party to the fine shall not bind, if the tenements are frank-fee; because by that means the terre-tenant might be dispossessed without notice; whereas, if he appears upon the scire-facias, he may plead a release or confirmation. in bar, and to preserve his possession.

Keilw. 43; Roll. Abr. 775; Leon. 290.

But if a fine be levied of land all ancient demesne, and the lord reverse it by writ of disceit, it seems doubtful from the books, whether the fine shall stand good between the parties; some say, that it ought not to be wholly set aside, nor the conusor restored to his land against his own solemn acknowledgment on record, especially since the lord, who brings the writ of disceit, seeks nothing but to restore the land to the privileges of ancient demesne; (c) others, on the contrary, hold, that the writ of disceit, and the reversal thereon, wholly avoids the fine, and restores the conusor to the possession of the land; and the conusance though on record, shall be no estoppel; because it was made in a court that had no jurisdiction of the matter; and therefore the whole proceedings coram non judice.