Jurisdictions, Part 117
Mortdanceſter.
Many times Mortdanceſter is brought of Copy-hold Land, and for that ſome thing ſhall be ſaid of Mortdanceſter; and it ſeemes if the Tenant traverſe one point of the writ, the reſidue ſhall not be inquired: Contrary is by 9 Ed. 3. fol. 30. Fitzh. Mortdanceſter 13.
IF one takes Iſſue upon one point, and found againſt him, the reſidue ſhall be held confeſſed, 27 H. 8. fol. 12. and 39 Aſs. 13. But Abridgement of Aſſiſe fol. 120. If the Tenant plead in Barr which is found againſt him, the Aſſiſe ought not to inquire of the points at large.
Mortdanceſter, If the Tenant traverſe one of the points of the Writ, as to ſay, that he is not next heire, and is found for the Plaintiffe, there he ſhall not inquire of other points, for when one point is traverſed, all others are in manner acknowledged, otherwiſe it is where he acknowledgeth no point, as pleading that the Plaintiffe is a Baſtard, there they ought to inquire of the reſidue of the points, Statham, 35 E. 3.
If the Tenant traverſe one of the points of the Writ, the remainder ſhall be held not gainſayd by Sharde, 14 E. 3. tit. Fitzh. 8.33 E. 3. Fitzh. 34. accordingly.
Abridgement of Aſſiſe, fol. 118. The points of the Writ are three, that is, Firſt, if the Anceſtor of the Demandant was ſeiſed in his Demeſne, as of fee, the day that he dyed. Secondly, If he dyed ſeiſed within fifty yeares laſt paſt. Thirdly, If the Demandant be next heire.
The Tenant ſaith, that the Anceſtor of the Plaintiffe did not dye ſeiſed in fee, and the Aſſiſe charged upon all the points, 9 Ed. 3. tit. 13. and 9 Book of Aſſiſes 14. according, B. 21.
If the Tenant plead in Barr, without that, that the Father of the Demandant dyed ſeiſed; if that be found againſt him, the points of the Writ ſhall not be inquired, but if he plead to the Writ, it is otherwiſe, 27 H. 8. fol. 12. by Fitzherbart.
Where the Tenant traverſeth one of the points of the Writ, and the Aſſiſe is awarded, and found for the Plaintiffe, he ſhall not inquire of the other points, but ſhall be taken confeſſed, Abridgement Book of Aſs. fol. 118.
If the Tenant pleads Feoffment or Surrender, he ought to traverſe the dying ſeiſed.
IF the Tenant pleads matter in Deed, as Feoffment of the ſame Anceſtor, they ought to traverſe the dying ſeiſed, but if hee plead recovery, this is a Barr, unleſſe the Tenant convey title afterwards, 6 Ed. 4. fol. 11. Mortdanceſter, Natura brevium, 119.
By Thorpe, Feoffment of the ſame Anceſtor is no Plea in Barr, but to the Aſſiſe, for the Action is taken of dying ſeiſed after, that is to ſay, The day that he dyed, or not, 34 Book of Aſſiſes 20.
Where there ſhall be a re-ſummons, and where the Aſſiſe ſhall be awarded upon default, and the points ſhall be inquired.
THe Tenant was Eſſoyned, and at the day made default, and re-ſummons was awarded, and ſayd, that it ought, 8 Book of Aſſiſes 13. Inquire Fitzh. fol. 196. G.
The Tenant was effoyned and at the day made default, and adjudged that the Aſſiſe ſhall be taken by his default, and that reſummons ſhall not be but immediately after Summons, 4 H. 7. f. 23. and 4 Ed. 2. Fitzh. 37.
A man cannot recover by default in this Writ without inquiring of the points of the Writ, 31 Ed. 3. Tit. 58. Abridgment Book of Aſſiſes f. 119.
The Tenant makes default by which reſummons went out, upon which he comes and pleads, and doth not anſwer to the default.
Where it is found againſt the Tenant, upon Plea which trencheth to the action, the points of the Writ ſhall not be inquired, otherwiſe it is upon a Plea in abatement, ſee 39 Book of Aſſiſes 13. and 29 Book of Aſſiſes 48.
Mortdanceſter, If the Tenant plead non-tenure of parcell to the Writ, and if found, &c. And is ready to heare the Recogniſance of the Aſſiſe, the points ſhall be inquired, 20 Book of Aſſiſes 19. and 4. Ed. 2. fol. 39.
Mortdanceſter, the Tenant ſaith, that he is ready to heare Recogniſance of Aſſiſe, the points inquired, 12 Ed. 3. f. 10.
If the Tenant plead non-tenure of parcell, he ought to plead over to the Aſſiſe, that is, to pray that the Points be inquired, 12 Book of Aſſiſee 8. and Abridgment Book of Aſſ. fol. 122. See there.
Where Mortdanceſter lyeth.
IT lyes for the Heir, where his Father, Mother, Brother, Siſter, Uncle, Aunt, Nephew, or Neece, dieth ſeiſed of any Lands of an eſtate in Fee, and an Eſtranger abates, there the Heir ſhall have a Mordanceſter, and when his Father were ſeiſed and diſſeiſed, the day that he dyed, yet it lyes. Fitzh: fol. 195. C.D.
If Tenent by the Curteſie alien, the Heir ſhall have Mordanceſter unleſſe he hath aſſets by him, And if a Guardian hold over, the Heir at full age ſhall have a Mortdanceſter: Fitzh: fol: 196. E. F.
Mordanceſter doth not lye upon Lands deviſable by Will, and it is reaſon, for it is true, that the Anceſter was ſeiſed, the day that he dyed, and that he dyed ſeiſed, and the Tenant is Heir in apparence. Fitzh: fol: 196. I. 4 Ed: 2. Fitzh: Mordanceſter 39.
It is a good bar to plead deviſe of the ſame Anceſter, and ſo it ſeems where there is a deviſe now by the Statute of Wills, Abridg: Book of Aſſiſes, fol: 120. & 32 H. 8. Chap. 2.
One Coparcener ſhall not have a Mortdanceſter againſt another, where their Anceſter dyed ſeiſed, and one enters in all, and holds out his companion, but (nuper obiit) and if the Anceſter dye ſeiſed of an eſtate tail and one enter, and deforce the other, he ſhall have a Formedon, and not a Mortdaneeſter. Fitzh: fol: 196. L.