Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

CHAP. X. Of an Assise and Juris utrum.

THus much of real Pracipes. Real si fecerit te securum, are an Assise, and Juris utrum, or other.

* 1.1An Assise is such a real Plea meerly in possession.

An Assise of ones own only possession is an Assise of Novel Disseisin, or an As∣sise or Nusance. An Assise of Novel Dis∣seisin is for a Free-holder against his disseisor, whether it be of Land or Rent, or the Bayliff of the disseisor, if himself cannot be found: And being of a Rent-charge, or Rent-seck, all the Tenants of the Land, we call them terretenants,* 1.2 must be named, and the whole Land put in view, though he were disseised by one Tenant only. If the Lord distrein the Tenant too often for the Rent or Services: that is to say, such as too great a distress may be taken for, as Rent-service, &c. but not for fealty, suit of Court, &c. for which there cannot be any too great distress. And whether it be the Lord mediate or immediate, the Tenant may have an as∣sise: the reason is, for that the Tenant cannot make rescouse.

Statutes.

Magn. chart. cap. 12. Assises of Mort∣dauncester, and of Novel Disseisin, shall not be taken but in their proper County by the Justice of Assise; and if they can∣not be determined there, they shall be determined by the same Justices in their journey: upon a difficulty of any points, they shall be reserved to the Justices of the Common Place, and there deter∣mined.

Westm. 2. cap. 13. 13 E. 1. Stat. de Mercator. 27 E. 3. cap. 9. Tenant by Elegit by Statute-Merchant, and by Statute-staple, shall have an Assise of Redisseisin.

Westm. 1. cap. 47. The Gardein or chief Lord enfeoffing one of parcel of Land in his hand, the heir may presently have an Assise of Novel disseisin against the Gardein and Tenant, and the Gardein shall lose the Ward, and all the ten∣nant that he holds of the heirs for life.

Westm. 2. cap. 25. A man shall have an Assise for Estovers of Wood, profit to be taken in wood of Nuts, Acorns, and other fruits of Corrodies, delivery of Corn and other Victuals and necessaries of Money to be received yearly in a place certain of toll, trorage, passage, pontage, pawnage, and such like, to be taken in places certain. Custodies of Woods, Parks, Forests, Chases, War∣rens, Gates, and other Bailywicks and Offices in fee. And in all these cases the Writ shall be De liber•• ten••ment••. Likewise an Assise is given for Common of Turve-land, fishing, and such like Commons which a man hath append••nt to a Free-hold, or without a Free-hold by special Deed, at the least for term of his life.

Westm. 1. cap. 24. An Assise given a∣gainst

Escheator, Sheriff, or other Bay∣liff of the King, that seizeth any Lands by colour of his Office, without special warrant or commandement, or certain Authority that belongeth to his Office so to do, and double dammages to be recovered.

Westm. 2. cap. 25. When Tenant for years, or in ward, alieneth in fee, the remedy shall be by an Assise, as well against the Feoffer as the Feoffee, during the life of either of them. If by the death of either of them remedy fail by that Writ, then the remedy shall be by a Writ of Entry.

7 Rich. 2. cap. 10. An Assise of No∣vel Disseisin of Rent out of Tenements in divers Counties, shall be in the confine of the same Counties.

Westm. 2. cap. 25. In an Assise, if one named a Disseisor do personally al∣ledge an exception, whereby the ta∣king of the Assise may be deferred, as that another time an Assise of the same Land passed between the same parties, or that there is a Writ of higher nature hanging, &c. and hereupon voucheth Rolls or Records to warranty, and at the day given him, he fail of that he vouched, he shall be adjudged a Dis∣seisor, without taking an Assise, ren∣der double dammages, and have a years imprisonment. If such excepti∣on be alledged by the Bayliff in the

absence of his Master, the taking of the Assise and Judgment shall not thereupon be delayed. But his Master afterwards offering to prove before the same Justi∣ces, such an exception shall have a Venire facias for the Record, which if the Justi∣ces see, might have been available to have barred the Plaintiff, they shall award a Scire facias against him that recovered, wherein the Defendant shall recover a∣gain his seisin and dammages, with his double dammages sustained since the first judgment and imprisonment of that par∣ty that recovered. In like manner, if the Defendant, against whom an Assise passed in his absence, shew any Deed, Release, whereupon the Jury were not, nor could not be examined, because there was no mention of them in the pleading, the Ju∣stices, upon sight of those writings, shall award a Scire facias against the party that recovered, and cause the same Jurors to come before them. And the writings be∣ing proved true by their verdict, or by the enrollment of them, like punishment shall be as before.

Westm. 2. cap. 30. The Jurors shall not be compelled to find a disseisin, or no disseisin, but may give their verdict at large.

Merton. c. 3. A man disseised recovering his seisin by Assise of Novel Disseisin, or confession of the party, and having the same delivered him by the Sheriff, if he be

again disseised of the same Tenement, by the same disseisor, shall have a Writ of Redisseisin to command the Sheriff, ta∣king with him the Keeper of the Pleas of the Crown, and other lawful Knights, in proper person to go to the Land, &c. and by the first Jurors, and other law∣ful men, to make enquiry. This must not be without special commandment of the King.

Westm. 2. cap. 26. A writ of redissei∣sin shall lie for them that have r••cover∣ed by default, redition, or otherwise, without Recognition of the Assises and Jurors.

Merton. cap. 3. There disseisor shall be imprisoned.

Marlb. cap. 8. And not delivered without special commandment of the King, and besides shall pay a fine.

Westm. 2. cap. 26. He shall answer double dammages, and not be replevia∣ble by the common writ.

Westm. 2. cap. 8. In fine, writs of re∣disseisin must be inrolled in the Chancery, and a Transcripsit thereof shall be sent into the Exchequer in the end of the year. An assise of Nusance is for him whose Free-hold is spoiled by any Nusance;* 1.3 for if he have but a Lease for years in the Land, he shall not have an assise of Nu∣sance, but an action upon his Case.

Statutes.

* 1.4Westm. 2. c. 24. Giveth an Assise of Nu∣sance against him to whom the Tenement is alienated after the Nusance is made.

6 R. 2. c. 3. The Plaintiff, if he will, may have a writ of Nusance in the nature of an Assise, determinable before the Ju∣stices of one Bench or other, or before the Justices of Assise.

An Assise of his ancestors possession on∣ly called an assise of Mortdauncestor, is for the next heir upon an abatement after the death of his father, mother, brother, sister, uncle, aunt, nephew, or neece: for of other Auncestors, a writ of Ayel, Besayel, or Co∣sinage, and not a Mortdauncestor lieth, who was seized in demesne as of a fee(a) 1.5 simple the day(b) 1.6 of his death, though he were disseised the very same day, and so died not seized at all. But upon Lands gi∣ven to one and his second wife (he having a son by a former) and the heirs of their two bodies, their son cannot have a Mort∣dauncestor (after the death of his father overliving the second wife) for he is not next heir, but his elder brother: and therefore, by the Common-Law, he was driven to a Formedon en descender,* 1.7 which was nothing else but a writ formed upon his case. So if the Auncestor were seized in tail, the remainder to his right heirs, a Mortdauncestor lieth not, for thereof the

Demesne he is seized in tail, not in fee.

Statutes.

Magna charta cap. 12. vide supra.

Marlb. cap. 16. A Mortdauncestor gi∣ven against the Lord that will not render the Land to his Ward at full age.

Westm. 2. cap. 4. If a woman having no right, recover dower against a Gardein, the heir at full age shall have a Mort∣dauncestor against her.

Gloucest. cap. 6. All the heirs, where∣of one is son or daughter, brother or sister, nephew or neece, and the other in a further degree shall joyn in a Mort∣dauncestor.

Gloucest. cap. 3. The heir shall have an Assise of Mortdauncestor, if Tenant by Courtesie alien and leave no assets.

An assise which may be either of his own, or his Ancessors possession, called an assise of Darrein presentment, is up∣on a disturbance when(a) 1.8 himself or his Ancestor did last present; and therefore lieth for(b) 1.9 Tenant in years, as well as for him that hath an Estate of Inheritance or for life.

Statutes.

Magn. chart. cap. 13. An Assise of Dar∣rein presentment shall be always taken

before the Justices of the Common Place.

* 1.10Marlb. cap. 12. and Westm. 2. cap. 2. A Juris utrum is such a real Plea found∣ed upon the right for a Parson or Vicar upon his predecessors alienation.

Statutes.

14 E. 3. cap. 16. A Juris utrum, and other writs according to their case, given to Parsons, Vicars, and Wardens of Chap∣pels, Provosts, Wardens, and Priests of perpetual Chauntries for Lands in Frank∣almoign, as well as to Parsons of Chur∣ches or Prebends.

Notes

• * 1.1

  F.N.B. 177. a.
• * 1.2

  31 Ass. pl. 31. 32 Ass. pl. 10.
• * 1.3

  F. N. B. 184.
• * 1.4

  The form of the writ F. N. B. 195. 14 El. Dy. 310. is that the 3 points to be in∣quired in a Mortdaunce∣stor (all expres∣sed in the writ) are 1. whether the Ancestor were seized in fee day of his death. 2. Whe∣ther the De∣mandant be his next heir. 3. Whether the Ancestor died within 50 years next before the writ purcha∣sed.
• (a) 1.5

  F. N.B. 196. k.
• (b) 1.6

  F. N.B. 195. d.
• * 1.7

  4 El. Pl. 239. F.N.B. 195. d.
• (a) 1.8

  F.N.B. 31. g. Old N. B. 33.
• (b) 1.9

  F.N.B. 31. d 5 H. 7. 16.
• * 1.10

  F.N.B. 48. r.