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[001] one carucate unless he holds it as his ancestor held it, by a strict or a generous measurement.
[002] What is said of a tenement ought to be said of the appurtenances, that as the
[003] ancestor held the tenement, with the appurtenances it had when he died, such may
[004] be claimed; if he gave the advowson before his death, it ought not to be included
[005] among the appurtenances which it had when he died. 1If the tenant does not hold
[006] what he once held after the death of the ancestor, we must see when he ceased to
[007] possess, that is, before impetration or after, or before suit begun or after, and thus
[008] [whether] he is guilty of delay [or] not, [except that if he claims by assise against the
[009] chief lord, whether he holds the whole or a part, the assise will proceed, no matter
[010] when he ceased to possess, provided that another is in seisin through him of the part
[011] he lacks; if there is doubt, inquiry may be made by the assise, as [in the roll] of the
[012] eyre of Martin of Pateshull in the county of Warwick in the fifth year of king Henry.]2
[013] [because] if he held and fraudulently ceased to possess mutandi iudicii causa,3
[014] because of the impending suit, when a writ was impetrated or [suit] begun, he will
[015] be taken as possessor, and he and the transferee, both or one, may be sued at the
[016] pleasure of the demandant. 4<And therefore since by such transfer after impetration
[017] he does not cease to possess, he can never change [his] causa possidendi nor cause
[018] himself to have a fee by such a feoffment and will always hold5 as guardian. And therefore
[019] if he dies after such feoffment, his heir within age, who is vouched to warranty,
[020] his age will not be awaited, because his ancestor did not change his causa possidendi
[021] by such transfer.6 Example may be taken from the writ of entry after disseisin,
[022] where an assise is arraigned in the lifetime of the disseisee and a view of the land made,
[023] or without those clauses, the age of the disseisor's heir is not then awaited, though
[024] it would be if the assise had not been arraigned when it could be. 7And [so] though
[025] the assise of mortdancestor was not arraigned against the chief lord, if he has aliened
[026] the whole,8 especially while the heir is under age, and has enfeoffed another thereof,
[027] and the chief lord having died, his heir is vouched to warranty by virtue of his
[028] father's charter, the taking of the assise will not remain on that account, but it
[029] must be taken in such a way that if the demandant should recover, the tenant's
[030] warranty be saved him when the chief lord's heir reaches full age, as [in the roll]
[031] of the last eyre of Martin of Pateshull in the county of Norfolk in the twelfth year of
[032] king Henry, an assise of mortdancestor [beginning], ‘if Eudo, father of Walter,’9
[033] concerning thirty-six acres of land with the appurtenances in Esterburgh, which
[034] land Ranulf de Braham held, who vouched to warranty Roger le Bigod, who was
[035] then within age, by a charter of Henry Bigod, earl of Norfolk, father of the same
[036] Roger, and where ‘it was decided



Notes

1. New paragraph

2. Selden Soc. vol. 59, no. 474; not in B.N.B.; supra 281, infra 304

3. Supra 281

4. Supra i, 404

5. ‘tenebit’

6. ‘Casus Corbin’ in MC and in the margin of OA, as n. 30 opposite; supra i, p. xii, and B.N.B., nos. 1783, 1827 (margin), 1898

7. New paragraph

8. ‘si totum’

9. B.N.B., no. 1827; infra 302-3


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