Law, Book 4 · Chapter 10 – Chapter 11
CHAP. 10.
Of an Aſsiſe and Iuris vtrum.
THus much of reall praecipes. Reall ſi fecerit te ſecurum, are an Aſſiſe, … Iuris vtrum, or other.
An aſſiſe is ſuch a reall Plea Fit. Nat. B. 177. ….meerly in poſſeſſion.
An Aſſiſe of ones owne onelyonly poſſeſſion is an aſſiſe of nouell diſſeiſin, or an aſſiſe or Nuſaunce. An aſſiſe of nouell diſſeiſin is for a freeholder againſt his diſſeiſor, whether it be of land or rent, or the Baylife of the diſſeiſor if himſelfe cannot be found. And beeing of a rent charge, or rent ſeck, all the Tenaunts of the Land, wee call them terretenants muſt be named, and the whole land put in view, though hee were 31. aſſ. Pl 31. 32. aſſ. Pl. 10.diſſeiſed by one Tenant onelyonly. If the Lord diſtreine the Tenant too often for the rent or ſeruices: that is to ſay, ſuch as too great a diſtreſſe may bee taken for, as rent ſeruice, &c. but not for fealtie ſuite of Court, &c. for which there cannot be any too great diſtreſſe. And whether it bee the Lord mediat or immediate, the Tenaunt may hauehave an aſſiſe: the reaſon is, for that the tenant cannot make reſcous.
Statutes.
Magn̄ chart. cap. 12. Aſſiſes of mortdaunceſter and of nouell diſſeiſin ſhall not bee taken but in their proper Countie by the Iuſtice of Aſſiſe, and if they cannot bee determined there, they ſhall be determined by the ſame Iuſtices in their iourney: vponupon a difficultie of any points, they ſhall be reſerued to the Iuſtices of the Common place and there determined.
Weſtm̄ 2. cap 18. 13. E. 1. Stat. de Mercator 27. E. 3. cap. 9. Tenant by elegit by Satute marchant, and by ſtatute ſtaple, ſhal hauehave an aſſiſe or rediſſeiſin.
Weſtm̄ 1. cap. 47. The gardein or chiefe Lord enfeoffing one of parcell of land in his hand, the heire may preſently hauehave an aſſiſe of nouell diſſeiſin againſt the gardein and tenant, and the gardein ſhall loſe the ward, and all the remnant that he holds of the heires for life.
Weſtm. 2. cap. 25. A man ſhall hauehave an aſſiſe for eſtouers of wood, profit to be taken in wood of nuts, accornes, and other fruits of Corodies, deliuerie of corne, and other vittailes and neceſſaries of money to bee receiued yearely in a place certaine of Toll, trorage, paſſage, pontage, pawnage, and ſuch like, to be taken in places certaine. Cuſtodidies of woods, parks, forreſts, Chaſes, warrens, gates, and other Bailywicks, and offices in fee. And in all theſe caſes the writ ſhall be de libero tenemento. Likewiſe an aſſiſe is giuen for common of Turne land, fiſhing, and ſuch like. Commons which a man hath appendant to a freehold or without a freehold by ſpeciall deed, at the leaſt for terme of his life.
Weſtm. 1. cap. 24. An Aſſiſe giuen againſt Eſchetor, Sherife, or other Baylife of the King, that ſeiſeth any lands by colour of his office, without ſpeciall warrant or commandement, or certaine authoritie that belongeth to his office ſo to doe, and double damages to be recouered.
Weſtm̄. 2. cap. 25. When Tenant for yeares, or in ward alieneth in fee, the remedie ſhall be by an aſſiſe, as well againſt the feoffor as the feoffee, during the life of either of them. If by the death of either of them, remedie faile by that Writ, then the remedie ſhall be by a writ of Entrie.
7. Ric. 2. cap. 10. An aſſiſe of nouell diſſeiſin of rent out of Tenements in diuerſe Counties, ſhall bee in the confine of the ſame Counties.
Weſtm 2. cap. 25. In an aſſiſe, if one named a diſſeiſor do perſonally alledge an exception whereby the taking of the aſſiſe may be deferred, as that another time an aſſiſe of the ſame land paſſed betweene the ſame parties, or that there is a Writ of higher nature hanging, &c. and hereupon voucheth Rols or records to warrantie, and at the day giuen him, he faile of that hee vouched, he ſhall be adiudged a diſſeiſor without taking an aſſiſe, render double damages, and hauehave a yeares impriſonment. If ſuch exception be alledged by the Baylife in the abſence of his Maſter, the taking of the aſſiſe, and iudgement ſhall not thereupon be delayed. But his maſter afterwards offering to proue before the ſame Iuſtices, ſuch an exception ſhall hauehave a venire facias for the record, which if the Iuſtices ſee, might hauehave been auaileable to hauehave barred the plaintife, they ſhall award a Scire facias againſt him that recouered, wherein the defendant ſhall recouer againe his ſeiſin and damages, with his double damages ſuſteined ſince the firſt iudgement and impriſonment of that partie that recouered. In like manner if the defendant, againſt whom an aſſiſe paſſed in his abſence, ſhew any deed, releaſe, whereupon the Iurie were not, nor could not bee examined, becauſe there was no mention of them in the pleading, the Iuſtices vponupon ſight of thoſe writings ſhall award a Scire facias againſt the partie that recouered, and cauſe the ſame Iurors to come before them. And the writings being proued true by their verdict, or by the enrolment of them, like puniſhment ſhal be as before.
Weſtm̄ 2. cap 30. The Iurors ſhall not be compelled to find a diſſeiſin or no diſſeiſin, but may giuegive their verdict at large.
Merton. cap 3. A man diſſeiſed recouering his ſeiſin by aſſiſe of nouell diſſeiſin, or confeſſion of the partie, and hauing the ſame deliuered him by the Sherife, if he be againe diſſeiſed of the ſame Tenement, by the ſame diſſeiſor ſhall hauehave a writ of rediſſeiſin to command the Sherife, taking with him the keeper of the Pleas of the Crowne, and other lawfull Knights in proper perſon to go to the land, &c. and by the firſt Iurors and other lawfull men to make enquirie. This muſt not be without ſpecial commandement of the king.
Weſtm̄. 2. cap. 26. A writ of rediſſeiſin ſhall lye for them that hauehave recouered by default, redicion, or otherwiſe, without recognition of the aſſiſes and Iuries.
Merton. cap. 3. The rediſſeiſor ſhall be impriſoned.
Marleb. cap. 8. And not deliuered without ſpeciall commandement of the King, and beſides ſhall pay a fine.
Weſtm. 2. cap. 26. He ſhall anſwer double damages, and not be repleuiable by the common writ.
Weſtm̄ 2. cap. 8. In fine, writs of rediſſeiſin muſt be enrolled in the Chancetie, and a tranſcripſit thereof ſhall bee ſent into the Excheker in the end of the yeare. An aſſiſe F. N. B. 184. g.of nuſance is for him whoſe freehold is ſpoiled by any nuſance, for if he hauehave but a leaſe for yeares in the land, hee ſhall not hauehave an aſſiſe of nuſance, but an action vponupon his Caſe.
Statutes.
Weſtm̄ 2 cap. 24. Giueth an aſſiſe of nuſance againſt him to whom the Tenement is alienated after the nuſance is made
6. Ric. 2. cap. 3. The plaintife, if he will, may hauehave a writ of nuſance in the nature of an aſſiſe, determinable before the Iuſtices, of one bench or other, or before the Iuſtices of aſſiſe.
An aſſiſe of his anceſtors poſſeſſion only called an aſſiſe of mortdanceſtor, is for The forme of the writ F. N. B. 195. 14. El. Dy. 310. is that the 3 poynts to be inquired in a Mortdanceſter (all expreſſed in the writ) are 1 whether the anceſtor were ſeiſed in ſee day of his death. 2. whether the demandāt be his next heire. 3. whether the anceſtor died within fiftie yeres next before the writ purchaſed.the next heire vponupon an abatement after the death at his father, mother, brother, ſiſter, vncle, aunt, nephew, or neice: for of other aunceſtors, a writ of Ayell, Beſayell, or Coſinage, and not a mortdanceſtor lyeth, who was ſeiſed in demeſne as of a ſee (a)F N. B 196. kſimple the day (b)F. N. B. 195. d 4 El. Pl. 239.of his death, though hee were diſſeiſed the very ſame day, and ſo dyed not ſeiſed at all. But vponupon lands giuen to one and his ſecond wife (he hauing a ſonne by a former) and the heires of their two bodies, their ſonne cannot hauehave a mortdanceſtor, (after the death of his father ouerliuing the ſecond wife) for hee is not next heire, but his elder brother: and therefore, by the Common Law, hee was driuen to a Formedon endeſcender, which was nothing elſe but a Writ formed vponupon his caſe. So if the aunceſtor were ſeiſed in taile, the remainder F. N. B. 195. d.to his right heires, a mortdaunceſtor lyeth not, for there, of the demeſne he is ſeiſed in taile, not in fee.
Statutes.
Magna charta, cap. 12. vide ſupra.
Marleb. cap. 16. A mortdanceſtor giuen againſt the Lord that will not render the land to his ward at full age.
Weſtm. 2. cap. 4. If a woman hauing no right recouer dower againſt a gardein, the heire at full age ſhall hauehave a mortdaunceſtor againſt her.
Glouceſt. cap. 6. All the heires whereof one is ſonne or daughter, brother or ſiſter, nephew or niece, and the other in a further degree ſhall ioyne in a mortdaunceſter.
Glouceſt. cap. 3. The heire ſhall hauehave an aſſiſe of mortdaunceſtor, if Tenant by curteſie alien and leaue no aſſets.
An aſſiſe which may bee either of his owne or his anceſtors poſſeſſion, called an aſſiſe of darrein preſentment is vponupon a diſturbance when (a)F. N. B. 31. g. old N B. 33.himſelfe or his anceſtor did laſt preſent: and therefore lyeth for (b)F. N. B. 31. i. 5 H. 7. 16.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 darrein preſentment ſhall bee alwayes taken before the Iuſtices of the Common place.
Marleb. cap. 12. and Weſtm̄ 2. cap. 2. A F. N. B. 48. r.Iuris vtrum is ſuch a reall plea founded vponupon the right for a Parſon or Vickar vponupon his predeceſſors altenation.
Statutes.
14. E. 3. cap. 16. A Iuris vtrum, and other Writs according to their caſe, giuen to Parſons, Vickars, and Wardeins of Chappels, Prouoſts Wardens and Prieſts of perpetuall Chauntries for lands in frankalmoigne, as well as to Parſons of Churches, or Prebends.
CHAP. 11.
Of a Writ of Partition, Nuper obijt, and a Quo iure.
THis is the nature of an aſſiſe, and Iuris vtrum. Thoſe that follow are either a Partitione facienda, & nuper obijt, (which both lye betweene priuies in bloud) or a Quo Iure.
A Particione facienda lyeth betweene copercenors to compell particion to be made, Lit. 53, 65, 72.but not betweene Ioyntenants, or Tenants in Common, yet partition made there by Lit. 98. 5. E. 3. parti…. 11.aſſent betweene them is very good, but the husband of one of the coapareeners comming to be Tenant by curteſie, ſuch a Writ lyeth for the other Copercener againſt him becauſe hee commeth in of the ſtate of his wife; but not for him, againſt the other. Therefore here for equalitie of partition, things that otherwiſe cannot may be granted 2. H. 7. 5. 11 H. 4. 3. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 29.without deed: As a rent, reuertion, ſeigniorie, way, auowſon, compoſition to preſent by turne, &c.
Statutes.
31. H. 8. cap. 1. Ioyntenants, or Tenans in Common of an eſtate of inheritance, may be compelled to make partition, and afterwards ſhall hauehave aide to deraigne the warrantie paramount, and to recouer for the rate as coperceners (after partition) ſhould.
32. H. 8. cap. 32. Ioyntenants, or Tenants in Common for life or yeares, or where one or many hold for life or yeares with another that hath the inheritance, may be compelled to make partition. Such partition ſhall bee preiudiciall to none but the parties, their Executours and Aſſignes.
Nuper obijt lyeth againſt one priuie in F. N. B. 197.bloud, that entreth after the death of the aunceſtor that dyed ſeiſed in demeſne. And therefore beeing but to trie the priuitie of bloud, view, nor voucher, lyeth not, neither is non tenure any plea.
A Quo iure lyeth for the tenant of the F. N. B. 128.land when one challengeth common, there to trie whether in right hee ought to hauehave any or no.