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.)]