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[001] at the will of the lord king, let the assise be taken at once and let inquiry be made
[002] concerning the seisin of the demandant's ancestor, and whether the demandant is
[003] the nearer heir, that when the pleasure of the lord king has been ascertained, the
[004] demandant may recover at once or the judgment deferred by will of the lord king,1
[005] as [in the roll] of the eyre of Martin of Pateshull in the county of Kent in the twelfth
[006] year of king Henry, an assise of mortdancestor [beginning] ‘if Robert de Wylington.’2
[007] When the summoned warrantor comes to warrant and a dispute arises as to the
[008] warranty, because homages and charters are denied, so that the plea of warranty
[009] cannot be determined without difficulty and delay, and3 there is doubt whether the
[010] tenant may retain by the assise or not, the assise is usually taken in order to ascertain
[011] with whom seisin should remain, and accordingly [whether] the plea of
[012] warranty should proceed or not, an assise of mortdancestor [beginning] ‘if Brian.’4
[013] Note that a lord-feoffor [A.], if vouched to warranty, is not bound to warrant where
[014] his tenant [B.] has encumbered the property,5 that is, where [C.] the ancestor of the
[015] demandant in the assise of mortdancestor was in seisin [by a gift made] after the
[016] gift made by him who is vouched to warranty [A.], as may be seen. Suppose that
[017] one [A.] enfeoffs another [B.] of ten, and his feoffee [B.] enfeoffs over another [C.] who
[018] dies seised, his heir within age, and the chief lord [B.] seizes the ten into his hand and
[019] does not acknowledge the heir as heir, or gives the ten over to another, and the heir
[020] arraigns an assise against him [B.], and the latter vouches his feoffor [A.] to warranty;
[021] he [B.] will not be heard, because of his own encumbrance. [Who may be bound to
[022] warranty and who may not will be explained more fully below in the tractate on
[023] warranties in a proprietary action.]6 Suppose that the owner or chief lord has
[024] given the land as to which the assise is sued to farm; we must see whether [the writ]
[025] ought to be impetrated against the farmer or against the chief lord. Against the chief
[026] lord, it seems at first sight, since the farmer has nothing except the usufruct and the
[027] owner has the tenement in demesne, and for this reason, because the farmer cannot
[028] bring the tenement to judgment. 7But on the other hand, if it is impetrated against
[029] the owner and he loses8 by the assise, the fructuary will lose the usufruct without
[030] recourse against his warrantor, which would be unfair. In truth it can be sued against
[031] both, not together but against the owner alone with the protestation (before the
[032] taking of the assise) that the fructuary have recourse against him with respect to
[033] his term. If it is impetrated against the farmer it will be good, as may be seen by an
[034] example. If a chief lord sells the wardship of someone's land to another9 [and]
[035] when the heir comes to full age he brings an assise



Notes

1. Supra 43, infra iv, 159

2. B.N.B., no. 1766

3. ‘et’

4. B.N.B., no. 47 (margin): ‘Nota quod warantus vocatus in assisa mortis antecessoris non dedicit warantiam et ideo processit assisa tali modo quod si tenens amitteret quod procederet placitum de warantia; si autem non, non.’; supra 261

5. Infra iv, 221; Glanvill ix, 4, where the text should read: ‘de eo qui de alio tenet [qui tenet] feodum suum (his, the lord's, fee) sicut’; ‘incumbramentum’: cf. B.N.B., no. 30, n. 9

6. Infra iv, 191

7. New sentence

8. ‘amittat’

9. ‘alicui,’ all MSS


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