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.
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.”
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.