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[001] was overseas, he must prove it, as [in the roll] of Trinity term in the fourth year of
[002] king Henry in the county of Middlesex, an assise of mortdancestor [beginning] ‘if
[003] Robert Cook.’1

The exception of fine made.

[005] The exception of fine made also lies for the tenant against the demandant, for he may
[006] say that a fine was once made in the king's court with respect to that same land
[007] between him and the demandant or between their ancestors, by which fine the same
[008] demandant, or one of his ancestors, recognized that land to be the right of the same
[009] tenant, or one of his ancestors, and remitted and quitclaimed etc. In proof thereof
[010] let him at once produce the chirograph and fine, to which let the demandant answer
[011] at once, and let him show the reason why the fine ought not to prejudice him, either
[012] that the fine touches him in no way or that it ought neither to prejudice him nor to
[013] avail the tenant for the reasons given above and many others to be given below.

The exception of lack of proof through the lapse of time, because from so remote a time that it exceeds the memory of men, or because of the time limitation of writs.

[015] A tenant may also except against the demandant that though the right has descended
[016] to him, as he says, neither his claim nor his action is valid for lack of proof, because
[017] of the lapse of time, because there is no one who may speak of the seisin of the demandant's
[018] ancestor, either prove anything as of his own sight or that of his father
[019] who enjoined him, because the seisin of which the demandant speaks is beyond proof,
[020] as from the time of king Henry the elder or earlier.2 This exception takes its substance
[021] from time. Here is a case where he who has the right (and his heirs) loses it forever
[022] and he who has no right and his heirs will retain it forever, simply for lack of proof.

The exception if the tenant is impleaded by two, for no one answers two at the same time.

[024] A dilatory exception lies for the tenant if he is impleaded by two with respect to the
[025] same thing, for no one can or ought to answer for one thing to two persons at one and
[026] the same time. We therefore must see, whether both actions are brought on the
[027] proprietary right or on the possession, also who impetrated first, who later, and to
[028] whom, to whose jurisdiction, in order to ascertain which ought to be preferred to the
[029] other and which ought not.


1. B.N.B., no. 123; C.R.R., viii, 379 (Easter)

2. Supra 23, 170

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