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.
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]
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]
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.