A.D. 1340. his wife, for he has warranted as holding in fee simple and as of his own right; wherefore in such a case no stress shall be laid on what he pleads.-SCROPE, SCHARSHULLE, and the COURT said that the husband in such a case can well plead in right of his wife, for he is in the estate which he had before the feoffment, and his wife can not by course of law be a party.-Note per SCROPE that bastardy in Novel Disseisin shall be tried by the Assise.And SCROPE said that in Mort d'Ancestor, if the tenant traverse one of the points of the writ, the rest shall be held as not denied.—And note per ALDEBURGH that the younger son naturally will claim against the elder by the same descent, and also the issue of the younger.SCHARSHULLE. When a tenant in assise, acknowledging the plaintiff's possession and an ouster, makes himself a title for his tenancy, it is for the plaintiff to choose his issue either by pleading in affirmation of his own title or by disaffirming the title of the tenant; and if he can do this in respect of the possession acknowledged to have been his, without making any other title to himself, he shall have the assise.-Derworthy. I do not think for it is always necessary in such a case to affirm the tenancy of him whose ouster is justified; for if neither of them had any right, and he who first was seised and ousted re-entered, he would recover against the other; besides, the issue taken between the parties in the first assise was not tried or determined by judgment, but the writ was abated by death; wherefore nothing can be held as not denied. Besides, though an allegation be made by way of protestation in pleading, it is but at the will of the Justices to enter it or not; for by Statute 1 they shall not seal any bill thereof, for it is neither a plea nor an exception; wherefore the Court will have no regard to the omission thereof. — R. Thorpe. It was quite possible that in the first assise the issue might have been found for Andrew;

so;

113 Ed. I. (Westm. 2.) c. 31.

femme, qar il ad garrantie come fee simple et come de A.D. 1340. son dreit demene, qar en tiel cas homme ne chargera pas ceo qil plede.-SCROPE, SCH., CURIA dixerunt qe le baroun en tiel cas pledra bien en le dreit sa femme, qar il est en lestat qil avoit avant le feffement, et sa femme ne poet par cours de ley estre partie. Nota par SCROPE qe bastardie en novele disseisine serra trie par assise. Et SCROPE qen mortdancestre si le tenant [Fitz. Mordaune, traverse un des pointz du bref, qe le remenant serra 8.] tenu a nient dedit. Et nota par ALD. qe le fitz puisne naturelment clamera vers leisne par mesme la descente, et auxi lissu del puisne.-SCH. Qant tenant en assise conisaunt possession al pleintif et un oustre et ceo fait title mesme de sa tenance, il est al pleintif de eslyr son issu, ou pledre daffermer son title demene, ou desaffermer le title le tenant; et sil poet ceo faire de la possession conu a lui sanz autre title faire a lui mesme, il avera assise.-Derworth. Ceo ne croy jeo pas; qar tout dis il covient en tiel cas affermer la tenance celui qi oster est justifie; qar si nul deux ne ust dreit, et celui qe primes fust seisi et oste reentrast, il recovera vers lautre ; ovesqe ceo, lissu pris entre parties en la primere assise ne fust pas trie ne termine par jugement, mes le bref fust abatu par mort; par quei rien ne poet estre tenu a nient dedit. Ovesqe ceo, protestacion coment qele fust allegge en plee, ceo nest forsqe a volunte des Justices dentrier ou nient; qar par statut de ceo il nenselera nul bille, qar ceo nest pas plee ne excepcion; par quei dentrelesser de ceo Court navera ja regard.-R. Thorpe. Il fust possible assetz qen la primere assise qe lissu ust este trove pur Andrewe;

A.D. 1340. and, if it had been so, there is not a doubt that nothing else could have been considered to have been not denied by him, but that he could very well have bastardised Ellen afterwards; wherefore, when the issue was not tried, not by reason of his default but because it was annulled by the death of a party,-nothing can be held as not denied except that which was expressly admitted. And I say that we have the same advantage as if there had then been a finding for us; for he has admitted us now to be heir, and that was then our issue; wherefore we pray the assise.1

Assise of Novel Disseisin.

Andrew, son of J. de Quantoxhead, brought an assise of Novel Disseisin against Walter de Meriet and others, whereupon all pleaded to the assise, by bailiff, except Walter, who said, before SCHARSHULLE, in the country, that there ought not to be an assise, for he said that a fine was levied between one Ellen, aunt of this Andrew, of the one part, and this same Walter of the other part, by which fine the aforesaid Ellen granted and rendered the same tenements as those put in view and in plaint to the same Walter, and bound herself and her heirs to warranty; judgment, &c.-To which Andrew said that he should not put off the assise by reason of this fine because, said Andrew, this same Ellen was a bastard.-To which Walter said:-You shall not be admitted to this, for heretofore you yourself brought an assise of Novel Disseisin against ourselves and against others, upon which writ we vouched to warranty one William, at that time husband of the aforesaid Ellen, who was named in the writ with us, and he entered into warranty and pleaded against us in bar of the assise, and said that the tenements then put in view were in the seisin of one Thomas le Clerke and Eva his wife who had issue one Robert and the aforesaid Ellen, your aunt, whose deed

It appears by the record that, after several adjournments, the plaintiff failed to appear on the day

given in the Michaelmas Term next following.

et, si issi ust este, il nest pas doute qe rien serreit A.D. 1340. del remenant nient dedit de lui, qil ne purreit assetz bien aver bastardi Elene autrefoitz; par quei, quant lissu ne fust pas trie, et ceo ne fust pas sa defaute, mes fust anienti par mort de partie, rien poet estre tenu a nient dedit fors chose expressement conu. Et jeo die qe sumes a mesme lavantage come si ust este trove adonqes pur nous; qar il nous ad conu ore estre heir, quele chose adonqes fust nostre mise; par quei nous prioms lassise.

4

Novæ

Disseisinæ.

Andrewe,' fitz J. de Cantokeshevede, porta une assise de Assisa novele disseisine devers Walter de Meriet et aultrez, ou touz plederent par bailli al assise, forspris Wauter, qe dit, devant SCHAR., en pays, qe assise ne dut estre, qar il dit qe fyn se leva entre une Elyne, aunte cesti Andrewe,3 dune part, et mesme cesti Walter dautre part, par quele fyn lavant dit Elyne granta et rendi mesmes les tenementz mys en vewe et en pleinte a mesme cesti Walter, et obligea luy et sez heires a la garrantie; jugement, &c.-A quei Andrewe dit qe par cele fyn il ne targera mye lassise, qar il dit qe mesme cesty Eleyne si fut bastarde.-A quei Walter dit :-A ceo navendrez vous mye qar altre foytz vous mesmes portastes un assise de novele disseisine devers nous mesmes et devers autres, a quel bref nous vouchames a garrant un William, a tiel temps baron lavant dit Elyne, qe fut nome en le bref ovesqe nous, que entra en la garrantie, et pleda ove vous en barre dassise, et dit que les tenementz mys en vewe adonqes furent en lasseisine un Thomas le Clerke et Eve sa femme qe avoient issue un R., et lavant dit Elyne, vostre aunte," par qui fet

1 This report of the case is from L. and 25184. In both L. and 25184 the words Johan fitz W. are substituted for Andrewe fitz J.

2 L., C.; 25184, Candokeshide. 3 L. and 25184, aielle cesti J., instead of aunte cesti Andrewe. The words in the record are amitam prædicti Andrea.

4 L., J.; 25184, Johan.

5 In L. the words donqes a cel temps are added after vouchames.

6 The words un William, a tiel

temps baron, are not in L.; in
25184 Pir. is substituted for Wil-
liam, which was the name of Ellen's
husband, as shown by the record.

7 L. and 25184, B., instead of
Thomas le Clerke.

8 In L. and 25184 are inserted, after the word et, the words lavant dit R. avoit issue. According to the record Robert and Ellen were alleged to be the issue of Thomas and Eva le Clerke.

9 L. and 25184, aiele.

A.D. 1340. we plead in bar, and said also that Thomas, Eva, and Robert died and that you entered claiming as cousin and heir to the said Thomas and Eva through one John, whom you supposed to be son and heir of the said Thomas and Eva, and that he and Ellen, as in the right of Ellen, ousted you, as it was quite lawful for them to do, because this same John, through whom you claimed, was born out of any manner of wedlock, and so a bastard, and he demanded judgment whether there ought to be an assise; and you, in order to carry the matter to the assise, said that this same J., through whom you claimed, was mulier, not then denying ability in the person of Ellen, according to what was alleged by the said William; wherefore you ought not to be admitted now to say, for the purpose of disabling the person of Ellen, the contrary of that which was previously admitted by you ; judgment, &c.-To which Andrew said that Walter was altogether a stranger to the record alleged. And besides, at the time of the plea pleaded by William, it would not have been a plea to enable Andrew to have the assise to have said at that time that Ellen was a bastard, for it was necessary for him, before he could have the assise, to affirm title of right in his own person, or at least a possession upon which he could have the assise, and that he did, showing a cause, when he said that his father was mulier.Whereupon, &c. SCHARSHULLE adjourned the parties into the Bench to the present day.-And they came.-And W. Thorpe, for Walter, rehearsed the whole, and demanded judgment, as before, whether he could now be admitted to disable her whom he had previously allowed to be able.-R. Thorpe. We could not have pleaded in any other manner, for if a man has issue two bastards, and the possession and the land are with the one who has first been able to snatch them, then the other cannot oust him; but a mulier can oust him and for a cause maintainable