Chapter XVI: Book XIII

CONCERNING PLEAS BY ASSISES AND RECOGNITIONS. AND OF
DIFFERENT KINDS OF DISSEISINS.

CHAP. I.

The general course of Proceedings, as they more usually occur in Court upon the foregoing Writs of Right, having been so far treated of, it now remains to speak concerning the steps commonly resorted to, where Seisin alone is in question. As these questions are, under the beneficial provisions of a Law of the Realm, which is termed an Assise, usually and for the most part decided by a Recognition, our subject leads us to treat of the different kinds of Recognitions.

CHAP. II.

There is one species of Recognition which is called _Mort d’Auncestor_[443]—another _de ultimis presentationibus_ of Parsons to their churches—another, whether a Tenement be an Ecclesiastical Fee or Lay Fee—another, whether any one was seised of a Freehold on the day of his death, as of fee or as of pledge—another, whether any one be under age or of full age—another whether any one died seised of a certain Freehold as of fee, or as of ward—another, whether any one presented the last Parson to a Church, by virtue of the Fee that he held in his Demesne, or by virtue of a Wardship.—And others of a similar description, which, as they frequently arise in Court when the parties are present, are, with their consent and the advice of the Court, directed, in order to determine the point in controversy. But there is another Recognition which is called _Novel Disseisin_. When, therefore, any one dies seised of a Freehold in his Demesne as of Fee, the Heir may justly claim the seisin of his Ancestor; and, if he be of full age, he shall have the following Writ——

[Footnote 443: Vide Bracton 252. a. et seq.]

CHAP. III.

“The King to the Sheriff, Health.[444] If _G._, the son of _T._ shall make you secure of prosecuting his claim, then, summon by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices, on such a day, prepared on their oath to return, if _T._ the father of the aforesaid _G._ was seised in his Demesne as of Fee, of one Yardland, in that Vill, on the day of his death—if he died after my first Coronation,[445] and if the said _G._ be his nearer Heir. And, in the mean time, let them view the Land and cause their names to be imbreviated; and summon, by good Summoners, _R._ who holds that Land, that he be then there to hear such Recognition; and have there the Summoners &c. Witness &c.” But, if the Ancestor was seised in the manner before mentioned, and had begun a Voyage, then, the Writ will be as follows——

[Footnote 444: Vide F.N.B. 433.]

[Footnote 445: This, Lord Coke informs us, was the 20th of October 1154. (2 Inst. 94.) A limitation of between 30 and 40 years.]

CHAP. IV.

“The King to the Sheriff, Health.[446] If _G._ the Son of _T._ shall make you secure of prosecuting his claim, then summon by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices,[447] such a day, prepared upon their oaths to return, if _T._ the father of the aforesaid _G._ was seised in his Demesne as of Fee of one Yardland, in such a Vill, the day on which he began his Journey to Jerusalem, or to St. Jago, in which Journey he died.——And, if he began his Journey since my first Coronation, and if the aforesaid _G._ be his nearer Heir. And, in the mean time &c.” as before. But, if the Heir be within age, then the Writ will be as follows——

[Footnote 446: Vide F.N.B. 434. In this Writ, says Fitzherbert, it sufficeth, if he were seised the day he went out of the Land and took the Sea, although it was not the day of his death. (Ubi supra.)]

[Footnote 447: “Before this Statute,” says Lord Coke, commenting on Mag. Carta, “the Writs of Assise, of Novel Disseisin and Mortdanc’ were returnable either _coram rege_, or into the Court of Common Pleas: and this appeareth by Glanville—_coram me vel coram Justiciariis meis_. But, since this Statute, these Writs are returnable, _coram Justiciariis nostris ad Assisas cum in partes illas venerint_.” (2 Inst. 24.)]

CHAP. V.

“The King to the Sheriff, Health. Summon by good Summoners, &c.” in all respects as in the foregoing, except that in the present Writ this clause in the beginning shall be omitted, “if _G._ the Son of _T._ shall make you secure of prosecuting his claim.”[448]

[Footnote 448: Vide Fitz. N.B. 434.]

Also this clause in the body of the Writ is omitted, “if _T._ the Father of the aforesaid _G._ died after my first Coronation.” But, if he assumed the habit of Religion, then the Writ, in conformity to this circumstance, will be varied in the following manner——

CHAP. VI.

“The King to the Sheriff, Health. If _G._ the Son of _T._ make you secure &c.” in all respects as before, excepting that in the present Writ there must be inserted in the Body of it, “prepared upon their oath to return if _T._ the father of the aforesaid _G._ was seised in his Demesne as of Fee, of so much Land in such a Vill, the day on which he assumed the habit of Religion; and, if he assumed such habit after my first Coronation; and, if the aforesaid _G._ be his nearer Heir; and, in the mean time, that they view the Land &c.” as before.

CHAP. VII.

The Writ of _Mort d’Auncestor_[449] having been received by the Sheriff, and security given by the Demandant in the County Court to prosecute his claim, the Proceeding in this manner comes to an Assise. In the first place, twelve free and lawful Men of the Neighbourhood are to be elected, according to the form expressed in the Writ, both parties being present, as well the Demandant, as the Tenant, or the latter being absent, provided he has been summoned once, at least, to be present at the Election. He is, indeed, to be once summoned in order that he may be present, and hear who are elected to make such Recognition. Some of them he may for a reasonable cause object to, if he is so inclined, and they shall be excluded from the Recognition. If he should not appear at the first Summons, regularly proved in Court, he shall not be awaited any longer; but, though he be absent, the twelve Jurors shall be elected, and then sent by the Sheriff to take a View of the Land or other Tenement in question. Yet the Tenant shall have one Summons on this account. The Sheriff shall cause the names of the twelve persons elected to be imbreviated. Having done this, the Sheriff shall cause the Tenant to be summoned to appear on the day appointed by the King’s Writ, or that of his Justices, before the King, or his Justices, to hear the Recognition.

[Footnote 449: Though the Writs inserted in the three foregoing Chapters appear to be framed with a view to the death of the Demandant’s Father, yet we are not from thence to infer, that the remedy, now under consideration, was confined in its application to the death of a Parent only, since the Ancestor in a Writ of _mort d’auncestor_ was intended of the Father, Mother, Brother, Sister, Uncle, Aunt, Nephew, or Niece of the Demandant. But here it ended. (See Bracton 254. 261. and 2 Inst. 399.)]

But, if the Demandant be of full age, the Tenant may essoin himself on the first and second day,[450] but on the third day he cannot do so, since the Recognition shall be then taken, whether the Tenant appear or not; because in no Recognition, where Seisin alone be in question, are more than two Essoins allowed.

[Footnote 450: “The reason why Assises were more expeditious than other remedies, arose from no Essoin being allowed in them”—says Mr. Barrington, (Observations on Ancient Statutes, p. 105.) which, from the text of Glanville, appears evidently to be an inaccuracy, as a _general_ position.]

But, in a Recognition of Novel Disseisin, no Essoin is permitted. On the third day, therefore, whether the Tenant appear or not, the Assise must be taken, as we have observed; and, if the Jurors should decide for the Demandant, Seisin shall be adjudged him, and the Sheriff shall be directed to put him into Seisin, by the following Writ——

CHAP. VIII.

“The King to the Sheriff, Health. Know, that _N._ has, in my Court, recovered Seisin of so much Land, in such a Vill, by a Recognition of _Mort d’Auncestor_ against _R._ and, therefore, I command you, that you cause him to have the Seisin without delay—Witness &c.”

CHAP. IX.

But, together with the Seisin, the successful party shall recover the possession of all the chattels and other things found in the Fee, at the time of delivering Seisin. But, after the Seisin has been fully recovered, the party who has lost it may sue concerning the Right, by means of a Writ of Right. Yet it may be questioned, to what time this is to be restricted, after restitution has been fully made.

CHAP. X.

But, if the decision be in favor of the absent Tenant, the Seisin shall then remain to him, without his Adversary being able to recover it. But such Seisin shall be no bar to a Suit concerning the Right. Nor shall a Plea of Right concerning any Tenement, prevent a Recognition for recovering the Seisin of a person’s Ancestor in the same Tenement, previously to the waging of the Duel. But, how then shall his contempt of Court be punished?

CHAP. XI.

Both Parties being present in Court, it is usual to inquire of the Tenant whether he can shew any reason, why the Assise should not proceed? And, here it should be observed, that a person of full age sometimes demands a Recognition of this kind[451] against a Minor—sometimes a Minor demands it against one of full age—sometimes a Minor against a Minor—sometimes one of full age against another of that description.[452] Generally speaking, the Assise shall not proceed, if the Tenant admits in Court, that the Ancestor, on the strength of whose Seisin the Demandant founds his claim, was seised on the day of his death in his Demesne as of Fee, with the other circumstances expressed in the Writ.

[Footnote 451: No one of full age was allowed by the Norman Code to prosecute a _mort d’auncestor_, unless he had purchased his writ within a year and a day after his Ancestor’s death had been publicly proclaimed. (Grand Cust. c. 99.)]

[Footnote 452: See Bracton 274. a. et seq.]

But, if the Seisin only be conceded, the other circumstances not being admitted, then, the Assise shall proceed upon the circumstance or circumstances not conceded. An Assise of this kind is accustomed to cease for many causes—if, for example, it should be alleged by the Tenant, that the Demandant was seised after the death of his Father, or any one of his Ancestors, whether the Ancestor was seised or not, on the day of his death; and, whilst the Demandant was in such Seisin, that he had done, with respect to himself, some such act as debarred him of subsequently resorting to the Assise—as if he had sold, given, or quitted claim, or, by any other lawful means, had disposed of the Land in question to the Tenant.[453]

[Footnote 453: Bracton 270. b.]

Should such a defence be set up, recourse may be had to the Duel, or to any other usual mode of proof, consistent with the practice of the Court, where the Right to any property is in question. The same observation applies, should it be alleged by his Adversary, that the Demandant had, on a former occasion, impleaded him, when a Fine was made between them in the King’s Court; or that the Land belonged to the Tenant by the decision of the Duel, in whatever Court it may have been waged; or by a Judgment, or by quit-claim.[454] Villenage, also, if it be in Court objected and proved against the Demandant, takes away the Assise.[455] An exception of Bastardy has the same effect.[456] The King’s Charter, also, in which the Land, the Seisin of which is demanded by the Assise, is specifically named or confirmed to the Tenant, as, indeed, the conjunction of more Heirs than one, of Females, for example, in a Military Fee, or of Males or Females in free socage Tenure.[457]

[Footnote 454: Bracton 271. b.]

[Footnote 455: Bracton 271. b. and Ante L. 5. c. 5.]

[Footnote 456: Bracton 280. a. and Ante L. 7. c. 13.]

[Footnote 457: Bracton 272. b.—See ante p. 126. Note 2.]

Again—if it be conceded, that the Ancestor upon whose Seisin the Demandant founds his claim, had a certain degree of Seisin, namely—one derived through the Tenant himself or his Ancestor, as from a Pledge, a Loan or any other cause of this nature, the Assise shall not go forward, but recourse must be had to another mode of proceeding.

Consanguinity, also, takes away the Assise; namely, if the Demandant and Tenant should have sprung from the same stock from which the Inheritance, the Seisin of which is in question, has descended, and such fact has been objected and proved in Court.[458] Another cause has been mentioned in treating of Marriage-hood, when the Eldest Son has given a certain part of his Lands to his Younger Brother, who dies without leaving any Heir of his Body.[459] In this case, as in others of a similar description, the Assise we are now treating of shall cease, since the same person cannot be both Heir and Lord of an Estate.[460] If, also, the Demandant be convicted, or, indeed, confess, that he was formerly in Arms against the King, the Assise which he so demands in Court shall from such circumstance cease.[461] By reason, also, of Burgage Tenure, the Assise does not usually proceed. This is in compliance with a particular Law of the Realm,[462] having for its object greater utility. But, if no exception be taken in Court, on account of which the Assise ought to cease, the Recognition shall proceed; and, in the presence of both parties, the Seisin shall, on the oaths of the twelve Jurors, and according to their verdict, be adjudged to the one or the other, in the manner described in a former part of this Book.

[Footnote 458: Vide ante L. 2. c. 6.]

[Footnote 459: Vide ante L. 7. c. 1.]

[Footnote 460: Vide ante L. 7. c. 1.]

[Footnote 461: Bracton 272. b.]

[Footnote 462: We may conjecture, that this Law was corroborative of the particular Customs of certain Cities and Boroughs, under which the Citizens and Burgesses could make a Will of Lands.

Where such Customs prevailed, it was an idle thing to inquire whether the Ancestor died seised. It seems, London and Oxford enjoyed these Customs. (Bracton fo. 272.) Mr. Somner conceives, that the utility aimed at by the Law in question and the foundation of it was, the good of the Commonwealth, by the maintenance of traffic, which was much encouraged by the liberty of a free devise, though this is somewhat darkly pointed at, as he says, by Glanville in the present passage. (Somner on Gavelkynd, p. 97.)]

CHAP. XII.

But, when a Minor prays an Assise of the kind we are treating of against one of full age, then, indeed, the latter shall not be allowed any Essoin against the former, because, on the first day, the Recognition shall proceed, whether the Tenant appear, or absent himself. And this upon a general principle.

For, whenever it happens, that the Tenant, if present in Court, cannot allege any cause why such Assise ought not to proceed, the Recognition ought by right to proceed, without awaiting the appearance of the adverse party. But, if the Tenant were present, he could not, as we observed, allege that the Minor had done any thing on account of which the Assise should cease; and, therefore, the Recognition shall unquestionably proceed, whether the Tenant, being of full age, appear or not, according to the form before mentioned; and thus, restitution having been made to the Minor through the Recognition, the full age of the Minor shall be awaited, if it be intended to sue him concerning the Right. But when one Minor sues another, the Recognition shall proceed in the same manner, and without any variation, as it usually does between a Minor and one of full age.

CHAP. XIII.

But, when a person of full age proceeds against a Minor, the latter, indeed, may avail himself of an Essoin against his Adversary, in the usual manner. When he appears, he may pray a delay, on account of his Age, and that the Recognition may not be taken, until he is of full age; and, thus, on account of Age, the Recognition of _Mort d’Auncestor_ usually stands over. But here we should observe, upon the necessity which exists, in order that such Assise should stand over on account of his age, that the Minor should allege himself to be in Seisin of the Tenement in question, and, therefore, that the Recognition ought not to proceed, before he has attained his full age: nor should he omit, that his Father or some other Ancestor was seised on the day of his death; since, neither a Recognition against a Minor, nor even a suit concerning the propriety, shall cease, by reason of the Seisin of a Tenement which any Minor has himself acquired and retains only by his own right. But, if it be replied to a Minor, that his Ancestor died seised of the Tenement, the Seisin of which is sought by the Recognition, not as of Fee, but as of Ward, then, indeed, although the principal Recognition ought to cease, on account of the Minor’s age, yet another Recognition shall proceed upon the point, whether the Minor’s Ancestor was seised as of Fee or of Ward, on the day of his death; and the Assise shall be summoned, by the following Writ.

CHAP. XIV.

“The King to the Sheriff, Health. Summon by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices, at such a day, prepared upon their oaths, to return, if _R._ the Father of _N._ who is within age, was seised in his Demesne of one ploughland in that Vill, of which _M._ the Son and Heir of _I._ prays a Recognition of the death of the said _I._ his Father, against the said _N._ as of his Fee on the day he died, or as of Ward. And, in the mean time, let them view that Land; and cause their names to be imbreviated. And summon, by good Summoners, the aforesaid _N._ who holds such Land, that he be then there to hear the Recognition. And have &c.”

CHAP. XV.

But, it should be observed, that if a day has been given for this purpose to both parties, when present in Court, then, the Tenant ought not to be summoned. But thereupon, a Recognition shall proceed to be taken on the oaths of twelve Jurors, and, according to their Verdict, shall it be declared, what Seisin the Minor’s Ancestor had, on the day of his death, in the Tenement in question; and, if it should be proved, that the Ancestor of the Minor had no Seisin on the day of his death, unless as of Ward, then, the Demandant shall recover Seisin against the Minor. But, it may be questioned, whether this alone be sufficient to enable him to recover Seisin.

It does not appear to be so; because this by no means proves, that the Demandant’s Ancestor was seised in his Demesne as of Fee, on the day of his death; nor even that the Demandant be his nearer Heir. But, on the contrary, it may be said, that this being proved, the Minor has consequently no right afterwards to retain the Seisin. But if this assertion be correct, to whom is the possession to be restored? whether, in such a case, must recourse be had to the principal Recognition? If, however, it be proved by the oaths of the twelve Jurors, that the Minor’s Ancestor was seised on the day of his death, as of Fee, then, the Seisin shall continue to the Minor without disturbance, until he arrives at his full age.

But, in such a case, can his Adversary or his Heirs on any future occasion be again heard? He may at least with respect to the Propriety of that Tenement, as against the Minor, when he has attained his full age, or against his Heirs. In addition, the Assise should proceed against a Minor in that one case only, which we observed, in treating concerning Heirs within age.[463] Upon the Assise proceeding against a Minor, if the Seisin should be awarded to continue with him, he shall not answer concerning the Right, until he has attained his full age. For, it is a general principle, that a Minor is not obliged to answer to any suit by which he may possibly be deprived of his Inheritance, or by which he can lose life or member, until he attain his full age. Yet, in certain other cases, he is bound, as, for example, respecting his paternal Debts, or his own, and in case of a Novel Disseisin. Should, however, the Seisin be adjudged against the Minor, in favor of the Demandant, restitution shall be made to him in the form before mentioned, nor shall he answer to the Minor upon the question of Right, until such Minor has attained his full age, as the latter would not be bound to answer the Demandant. The reason is of general force: because, such transactions, as take place with Minors, in Pleas of this description, ought not to be held firm and unalterable.

[Footnote 463: Vide L. 7. c. 9. &c.]

But if, on a Minor alleging himself intitled to the privilege of his age, it should in Court be objected, that he is of full age, this is usually ascertained by a Recognition of eight free and lawful Men, who are to be summoned for such purpose, by the following Writ——

CHAP. XVI.

“The King to the Sheriff, Health. Summon, by good Summoners, eight[464] free and lawful Men of the Neighbourhood of such a Vill, where the Tenement in question is, that they be before me or my Justices, on such a day, prepared on their oaths to return, whether _N._, who claims one Hyde of Land in that Vill by my Writ against _R._, be of such age, that he can and ought to sue; and, in the mean time, let them view that Land, and cause their Names to be imbreviated; and Summon, by good Summoners, him who holds the Land, that he be then there to hear that Recognition. And have, &c.”

[Footnote 464: Vide F.N.B. 569. where twelve Jurors are mentioned.]

CHAP. XVII.

If, therefore, the full age of the person whose age is in dispute shall be proved by such Recognition, from thenceforward he must be treated as one of full age, so far as respects the principal Recognition. But, it may be doubted, whether, generally speaking, and with reference to the suits[465] of others, he should, by force of the present Recognition, be considered as of full age, in such manner as not to be able to protect himself under the privilege of age. But, if such Recognition should find him a Minor, he shall avail himself of the privilege of infancy, so far as respects the principal Recognition; but, it may be questioned, how far he can avail himself of it on other occasions and in other suits.

[Footnote 465: _Impetitionem_ pro _impetitiones_. The term appears to be generally employed to designate a criminal proceeding; and, if we meet with it connected with the term waste—_sine impetitione vasti_, we must recollect, that waste under the feudal law was considered as a criminal offence. A much greater latitude was afterwards allowed in the application of the term. (Vide Spelm. Gloss. ad voc. _impetitus_ and _impetitio_ and Cowell ad voc. _impeachment_. &c.)]

CHAP. XVIII.

It follows, that we speak of the Recognition _de ultimâ presentatione_.[466] If, upon the vacancy of a Church, there be a controversy concerning the Presentation, it may be decided by a Recognition _de ultimâ presentatione_, upon either of the litigating parties requiring it in Court. On such an occasion, he shall obtain the following Writ——

[Footnote 466: Vide Bracton 237. b. et seq. It is not, perhaps, irrelative to observe, that Lord Coke refers to this and the two following chapters among other authorities to prove, that, at Common Law, if a stranger had presented his clerk and he had been admitted and instituted to a church, whereof any subject had been lawful Patron, the Patron had no other remedy to recover his advowson, but a writ of right of advowson, wherein the Incumbent was not to be removed. (Co. Litt. 344. a.)]

CHAP. XIX.

“The King to the Sheriff, Health.[467] Summon, by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices, such a day, prepared on their oaths to return, what Patron presented the last Parson who died, to the Church of such a Vill, which is, as it is said, vacant, and of which _N._ claims the Advowson; and cause their names to be imbreviated; and summon, by good Summoners, _R._, who deforced that Presentation, that he be then there to hear the Recognition—and have there, &c.”

[Footnote 467: F.N.B. 68.]

CHAP. XX.

As to the Essoins allowed in this species of Recognition, they may be collected from what has gone before. Upon the Recognition proceeding, whether both of the parties be present, or one of them be absent, the person, to whom, on his own, or his Ancestor’s Seisin, the last Presentation shall be adjudged, is understood thereby to have recovered Seisin of the Advowson itself; so that, upon his Presentation, the Bishop of the place shall institute the first Parson, if a proper person,[468] into the vacant Church, which he shall retain during his whole life upon his Patron’s Presentation, whatever may afterwards happen, with respect to the Right of Advowson. For the person, against whom the last Presentation has been awarded by the Recognition, may proceed against the other, or his Heirs, upon the Right of Advowson, the nature of which has been explained, in a former part of this Treatise. It may be asked, whether, from the first, any thing can be alleged to prevent the Assise from going forward. In order to effect such object, the Tenant may admit, that the Ancestor of the Demandant made the last Presentation, as the real Lord and the Eldest Heir, but that he afterwards transferred the Fee, to which the Advowson is appendant, to the Tenant or his Ancestors, by a good Title; and thus upon this allegation the Assise shall cease, and a Plea may then be had recourse to between the litigating parties, upon this exception. Upon this exception, either of the parties may desire a Recognition, and is intitled to have it. But either of the litigating parties may admit, that the other, or one of his Ancestors, made the last Presentation, but not as of Fee, but of Ward, and may demand, and shall obtain, a Recognition upon this point. Such Recognition shall be summoned by the following Writ——

[Footnote 468: “A worthy man, qualified in literature, life, and manners”—are the words of the Reg. Maj. L. 1. c. 2. Vide 1 Bl. Comm. 389.]

CHAP. XXI.

“The King to the Sheriff, Health. Summon, by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices, at such a day, prepared on their oaths to return, if _R._, who presented the last Parson, who is dead, to such a Church, by reason of the Tenement that he held in such a Vill, made such Presentation, as of Fee, or as of Ward,[469] and cause their names to be imbreviated; and summon, by good Summoners, him who has deforced the Presentation, that he be then there, &c.”

[Footnote 469: “And, in the mean time, let them view the Tenement”—added in Cotton. and Bodln. MSS.]

CHAP. XXII.

The fact being ascertained by the Recognition, if the last Presentation was made as of Ward, the Advowson of the Presentation is at an end, and the Presentation itself shall belong to the other party. But if, as of Fee, the Presentation shall continue to him.

CHAP. XXIII.

It follows to treat of the Recognition to ascertain, whether a Tenement be a Lay, or an Ecclesiastical Fee. Upon either of the parties desiring to have such Recognition, it shall be summoned by the following Writ——

CHAP. XXIV.

“The King to the Sheriff, Health. Summon, by good Summoners, twelve free and lawful Men of the Neighbourhood of such a Vill, that they be before me, or my Justices, such a day, prepared upon their oaths to return, whether one Hyde of Land, which _N._, the Parson of the Church of that Vill, claims, as held in Frankalmoigne by his Church, against _R._ in that Vill, be the Lay Fee[470] of the said _R._, or an Ecclesiastical Fee; and, in the mean time, let them view the Land, and cause their names to be imbreviated. And summon, by good Summoners, the aforesaid _R._, who holds that Land, that he be then there to hear the Recognition, and have there, &c. Witness, &c.”

[Footnote 470: _Sit laicum feodum._ “A _Juris Utrum_ did lie at the Common Law for a Parson against a Layman, and for a Layman against a Parson: but no _Juris Utrum_ did lie for one Parson against another, before this Act, (Westmr. 2d.) because it was the Right of the Church and no Lay Fee. And the words of the writ at the Common Law were, _an sit laicum feodum, &c._” (Vide 2 Inst. 407. and the authorities cited by Lord Coke.)]

CHAP. XXV.

Neither in this Recognition, nor in any other, except the Recognition of the Grand Assise, are more than two Essoins permitted. Because a third Essoin is never allowed, unless where it can be judicially ascertained, whether an illness amount to a languor or not. As this is not usually done in Recognitions, they necessarily preclude a party from casting a third Essoin. The Recognition we are now treating of proceeds in the manner we have described, when discussing other Recognitions. Yet, should it be observed, that if, by the Recognition, a Tenement be proved to be an Ecclesiastical Fee, it cannot afterwards be treated as a Lay Fee, although it may be claimed by the Adverse party to be held of the Church, by a stipulated service.

CHAP. XXVI.

Our subject leads us, in the next place, to consider that species of Recognition which is usually resorted to, in order to ascertain, whether a person died seised of a certain Freehold, as of Fee or as of Pledge. When any one claims a certain Tenement to be restored to him, as pledged, either by himself, or one of his Ancestors, if the Tenant does not acknowledge the Tenement in question to be a pledge, but asserts in Court that he is seised of it as of Fee, recourse is usually had to a Recognition, which shall be summoned by the following Writ——

CHAP. XXVII.

“The King to the Sheriff, Health. Summon, by good Summoners, twelve free and lawful Men of such a Vill, that they be before me, or my Justices, such a day, prepared upon their oaths to return, whether _N._ holds one ploughland in such a Vill, which _R._ claims against him by my Writ, in Fee or in Pledge, as pledged to him by the said _R._ or by _H._, his Ancestor.” Or thus—“whether that ploughland, which _R._ claims against _N._, in such a Vill, by my Writ, be the Fee or Inheritance of the said _N._, or Pledged to him by the said _R._, or by the said _H._, his Ancestor; and, in the mean time, let them view that Land; and cause their names to be imbreviated; and summon, by good Summoners, the aforesaid _N._, who holds that Land, that he be then there to hear the Recognition—And have there, &c.”

CHAP. XXVIII.

But, it sometimes happens, that a person holds a Tenement as a pledge, and so dies seised of it. His Heir, also, by reason of such a Seisin, prays a Writ of Mort d’Auncestor against the true Heir, who has obtained the Seisin of the Tenement in question. If, indeed, it should then be acknowledged by the Tenant, that the Ancestor of the Demandant had died seised, but as of Pledge, and not as of Fee, the consequence is, that recourse must be had to the before mentioned Recognition, which shall be summoned by the following Writ——

CHAP. XXIX.

“The King to the Sheriff, Health. Summon, by good Summoners, twelve, &c., that they be, &c. prepared upon their oaths to return, whether _N._, the father of _R._, was seised in his Demesne, as of Fee, or as of Pledge, of one ploughland, in such a Vill, the day on which he died. And, in the mean time, &c.”

CHAP. XXX.

It being proved by the Recognition, that the Tenement in question is a pledge, then, the Tenant who has asserted it to be his Fee shall lose the Tenement in question, so that he shall not, by reason of its having been a pledge, recur to it for the recovery of his Debt.[471] But, if it be decided to be the Fee of the Tenant, then, the Demandant shall from henceforth be barred from any recovery unless by a Writ of Right. It may be asked, whether in this Recognition, or in any other, a person’s Warrantor should be awaited, whatever description of Warrantor, or for whatever cause he may be such, especially if the Warrantor should be called into Court upon this subject after two Essoins?

[Footnote 471: The text is obscure, and contradictory: most probably, falsely transmitted to us.

This is answered in the affirmative by the Regiam Majestatem. L. 2. c. 35.]

CHAP. XXXI.

The Recognitions which remain may be partly collected from the preceding Recognitions—and partly from the Judgment of the Court, founded on the allegations of both parties. With respect, for example, to the Recognition to ascertain, whether a person be within age or not—some mention and notice are taken of it in the fifteenth, sixteenth, and seventeenth Chapters of the present Book.

In like manner, concerning the Recognition, whether a person was, on the day of his death, seised of a certain Freehold, as of Fee or of Ward, in the thirteenth, fourteenth, and fifteenth Chapters of this Book. In the same manner, concerning the Recognition, whether a person presented the last Parson, in right of his Fee, or his Wardship, in the twentieth, twenty-first, and twenty-second Chapters of the present Book. These Recognitions follow those we have previously treated of with respect to Essoins, and proceed or cease for the same reasons.

CHAP. XXXII.

In the last place, it remains for us to speak, concerning that species of Recognition, which is called _Novel Disseisin_.[472] When any one, therefore, unjustly and without a Judgment, has disseised another of his Freehold; and the case fall within the King’s Assise, or in other words, within the time for such purpose appointed by the King with the advice of his[473] Nobles (which is sometimes a greater,[474] sometimes, a less period) this Law comes to the aid of the person disseised, who shall have the following Writ——

[Footnote 472: As to the term _novel_, when the Action was brought before the Eyre, or Circuit, the Action or Disseisin was _ancient_, whilst, if the Disseisin were done since the last Eyre, then it was a novel Disseisin. Bracton treats largely upon the subject of novel Disseisin 160, et seq. See also 2 Inst. 24. The remedy of novel Disseisin is also treated of in the Assises of Jerusalem, with some peculiar provisions adapted to the singular circumstances in which the Holy Land was situated, (c. 63. et seq.) The respectable Translator of the Code Napoleon observes, that he has not met with the term _novel disseisin_ before Magna Carta.—Amidst the attention of preparing his work for the press, he must have forgotten not only Glanville, but the Mirror.—Whatever doubt maybe entertained respecting the authority of the Mirror, yet Glanville indubitably proves, that the term was well known to our lawyers antecedent to the Great Charter. (See Mirror, c. 2. s. 25.)]

[Footnote 473: Meaning the Parliament, according to Judge Blackstone. (1. 147. 148.)]

[Footnote 474: The words inserted in this parenthesis have been thought to be an interpolation of a later date. (1. Reeves’ Hist. Eng. Law. 189.) Yet this suggestion may very reasonably be questioned—as the passage seems merely assertive of what must necessarily be the fact. It was a consequence of fixing the time of limitation _to the coronation of the king_, _his Journey into Normandy_, or any other event, that the time itself must be altering daily. (Vide 2 Inst. 94.)]

CHAP. XXXIII.

“The King to the Sheriff, Health.[475] _N._ complains to me, that _R._ has, unjustly and without a Judgment, disseised him of his free Tenement, in such a Vill, since my last Voyage into Normandy;[476] and, therefore, I command you, that if the aforesaid _N._ should make you secure of prosecuting his claim, then, you cause the Tenement to be reseised, with the Chattels taken on it, and that you cause him with his Chattels to be in peace,[477] until the Pentecost; and, in the mean time, you cause twelve free and lawful Men of the Neighbourhood to view the Land, and their names to be imbreviated; and summon them, by good Summoners, that they be then before me, or my Justices, prepared to make the Recognition; and put, by gage and safe pledges, the aforesaid _R._, or his Bailiff,[478] if he be not to be found, that he be then there to hear such Recognition, and have there, &c. Witness, &c.”

[Footnote 475: Vide F.N.B. 394.]

[Footnote 476: Sc. 1184. If the present Treatise was written in 1187, the remedy of novel disseisin stood limited to three years, which, of course, was every day lengthening until a new Æra was fixed.]

[Footnote 477: Affirmed by Statute of Merton, c. 37. (2 Inst. 235.)]

[Footnote 478: Vide Note 3. p. 225.]

CHAP. XXXIV.

But Writs of Novel Disseisin are varied in different modes, according to the diversity of the Tenements in which Disseisins are committed. But if any Dyke[479] should be raised or thrown down, or the Pond[480] of any Mill be destroyed, to the injury of any person’s Freehold, and such offence has been committed, within the time limited by the King’s Assise, then, according to the subject matter, the Writs are varied in the following manner——

[Footnote 479: _Fossatum._ This word occurs in Pliny. It seems to have been chiefly used by the old Lawyers in two senses—1. as denoting a camp, or intrenchment—2. as meaning a ditch, dyke, or moat. But it was not always confined to these significations—as the reader will perceive on turning to the Ancient Glossaries, particularly to that very valuable one given to the world by Spelman.]

[Footnote 480: _Stagnum_, Sir Edward Coke informs us, “doth consist of Water and Land, and, therefore, by the name of _Stagnum_, or a pool, the water and land shall pass also.” (Co. Litt. 5. a.)]

CHAP. XXXV.

“The King to the Sheriff, Health.[481] _N._ complains to me, that _R._, unjustly, and without a Judgment, has raised a certain Dyke in such a Vill, or thrown it down, to the nuisance of his Freehold, in the same Vill, since my last Voyage into Normandy—And, therefore, I command you, if the aforesaid _N._ should make you secure of prosecuting his claim, then, that you cause twelve free, &c. to view such Dyke and Tenement, and cause their names to be imbreviated. And summon, by good Summoners, &c.” as before.

[Footnote 481: Vide F.N.B. 408. 409.]

CHAP. XXXVI.

“The King to the Sheriff, Health.[482] _N._ has complained to me that _R._, unjustly and without a Judgment, has raised the Pond of his Mill, in such a Vill, to the nuisance[483] of his Freehold, in such Vill, or in another Vill, since my last Voyage into Normandy. And, therefore, I command you, that if the aforesaid _N._ should make you secure of prosecuting his claim, then, you cause twelve free, &c. to view that Pond and Tenement, &c.” as before.

[Footnote 482: Vide F.N.B. 407.]

[Footnote 483: See Bl. Com. 3. 220.]

If, however, the Disseisin concern Common of Pasture, then, the Writ shall be as follows——

CHAP. XXXVII.

“The King to the Sheriff, Health.[484] _N._ complains to me, that _R._, unjustly and without a Judgment, has disseised him of his Common of Pasture, in such a Vill, which belongs to his Freehold, in such Vill, or in that other Vill, since my last Voyage into Normandy. And, therefore, I command you, that if the aforesaid _N._, has made you secure of prosecuting his claim, then, you cause twelve free, &c. to view that Pasture and Tenement, and their names, &c.”

[Footnote 484: Vide F.N.B. 399.]

CHAP. XXXVIII.

In this species of Recognition no Essoin is permitted.[485]

[Footnote 485: But one Essoin, and one default allowed by the Norman Code! (Grand Custum. c. 94.)]

For, on the first day, and that whether the party committing the Disseisin should appear or not, the Recognition shall proceed,[486] because it spares no person, neither one of full age, nor a Minor, nor will await even a Warrantor. But, if a party should acknowledge such Disseisin in Court, naming, at the same time, a Warrantor, the Recognition shall thereby cease, and the person who has so acknowledged shall be amerced to the King.

[Footnote 486: The Norman Code describes the whole proceeding at length. The names of the Jurors having been called over in open Court, the Parties are at liberty to take any Legal Exceptions to them. The Jurors are then individually sworn to speak the truth. After this, no person shall be allowed to hold any private communication with them, unless it be the Judge. The Judge shall in the next place solemnly charge them to return a true verdict, briefly stating to them the object for their consideration. The Jurors shall then consult upon their verdict, and, in the mean time, shall be strictly guarded, least they be corrupted. Having considered of their verdict, if they all agree, one of them shall deliver it into the Judge in open Court. (Le Grand Custum. de Norm. c. 96.)]

The Warrantor shall be afterwards summoned,[487] and the Plea proceed between him and the person who has, on this occasion, nominated him as Warrantor.

[Footnote 487: The Norman Code, acting, in this instance, upon a more pure and refined principle of legislation, allowed no Warrantor to be vouched to justify a novel Disseisin—_Violentum enim est et nullo modo sustinendum, &c._ (Grand Cust. de Norm. c. 94.)]

Yet, should it be observed, that the unsuccessful party, whether the Appellor or the appealed,[488] shall in every instance be amerced to the King, on account of the violent Disseisin. In addition, if the Appellor should not keep his day, then, also, his Pledges are to be amerced to the King. The same Rule prevails, with respect to the person of the other party, should he absent himself at the appointed day. The Penalty inflicted by this Constitution is merely an Amercement to the King.

[Footnote 488: _Appellans sive appellatus._ These terms are generally used in a criminal sense. Their application in the present instance may be accounted for by reflecting, that a Disseisin, being in the eye of the law accompanied by force and a violation and disturbance of the peace, was to a certain degree a criminal offence.—See Mirror, c. 2. s. 23.]

But, in this Recognition, the party who has proved the Novel Disseisin, may obtain, that the Sheriff should be directed to deliver him the Chattels and the Fruits, which have, by the authority of the King’s Writ, or that of his Justices, been in the mean time seised.[489] In no other Recognition does the Judgment of the Court usually make any mention concerning the Chattels or Fruits; and, unless the Sheriff has taken steps to satisfy him out of the Chattels or Fruits, then, the party who complains of it, shall obtain the following Writ——

[Footnote 489: “And, moreover, the Pursuer, who has proved the Ejectment may effectually desire, that command shall be given to the Sheriff to deliver to him so much of the moveable Goods pertaining to the Defender, or of the fruits of the Land which was arrested by the King’s precept, as extends to the sum of ten Marks.” (Regiam Majestatem, L. 3. c. 36.) The Reader must not start at the modern term _Ejectment_. It is only the language of _Skene_, the Translator.]

CHAP. XXXIX.

“The King to the Sheriff, Health.[490] I command you, that you compel _N._, justly and without delay, to render to _R._ his Chattels, since he complains that he took them, unjustly and without a Judgment, from his Free Tenement, in such a Vill, since the Disseisin he did to him, since my Assise, of which he will recover the Seisin before my Justices, by a Recognition of Novel Disseisin, as he can reasonably shew that he ought to have them, least more, &c. Witness, &c.”[491]

[Footnote 490: The same writ is to be found, L. 12. c. 18.]

[Footnote 491: In quitting this Book, which treats so largely of Assises, I shall make no apology to the Reader for extracting the following observations from Mr. Reeves’s highly valuable work. “It must be observed of these _Assises_ (for so they are sometimes called by Glanville, but more commonly _Recognitions_) that they are not all of the same kind; that _de morte antecessoris_ being evidently an original proceeding, independent of any other; the rest (not excepting that _de ultimâ presentatione_, and that _utrum laicum feodum vel ecclesiasticum_) being merely for the decision of facts which arose in some original action or proceeding. Thus the writs for summoning Recognitions of the latter kind were simple writs of Summons: they mentioned that a Plea was depending in Court by the king’s writ; and they were granted at the prayer of either party: so that they seemed to be resorted to, by the assent of parties for settling an incidental question, on which they put the dispute between them. On the other hand, the writ _de morte antecessoris_ has all the appearance of an original commencement of a suit. It issued only upon condition the Demandant gave security to prosecute it, _Si G. filius T. fecerit te securum de clamore suo prosequendo, tunc summone_, and made no mention of a plea depending. Of the same kind was the writ _de novâ desseisinâ_.” (Reeves’s Hist. Eng. Law, 188.)]