EASTER TERM IN THE TWENTIETH YEAR OF No. 1. A.D. 1346. (1.) § John Foleville, and his wife, and two other Assise of husbands, and their wives brought an Assise of Novel Disseisin. Disseisin against a woman in the county of L., Novel before THORPE. The tenant said, by Grene, that there ought not be an Assise, because he said that the tenements had been in the seisin of one G., who took to wife one A., by whom he had issue two daughters, to wit, the wife of John the plaintiff, and the wife of the second plaintiff. A. died; G. took another wife, B., on whom he begot the wife of the third plaintiff; and afterwards a divorce was effected between G. and B. for a certain cause; thereupon G. took to wife the present tenant by whom he had issue a son R. This G. died seised of the same land, and after his death the Abbot of Peterborough, of whom the said land was holden by knight service, seised the wardship by reason of the non-age of the said R. And those who are plaintiffs, claiming to have the land by succession of inheritance, on the ground that they were daughters, abated on the possession of the said R., and the Abbot, as guardian, ousted them. And afterwards the Abbot assigned these same tenements [to the defendant] to hold in dower, in satisfaction, &c., and (said Grene) we demand judgment whether they ought to have an Assise in respect of such an estate. Skipwith. Sir, you see plainly how they rely upon two distinct matters; one is that DE TERMINO PASCHE ANNO VICESIMO REGNI REGIS EDWARDI TERTII.1 No. 1. Assise de Assisa counte 3 Nova (1.) § Johan Foleville, et sa femme, et ij autres A.D. 1346. barouns, et lour femmes porterent une novele disseisine vers une femme en le L., devant THORPE. Le tenant dit, par Assise ne doit estre, qar il dit qe les furount en la seisine un G., qe prist a femme une A., de qi il avoit issue ij filles, saver, la femme J. le pleintif, et la femme le secunde pleintif. A. murust; G. prist autre femme, B., de qi il engendra la femme le terce pleintif; et puis divors se prist entre G. et B. par certeyne cause; par quei G. prist a femme celuy qore est tenante, de qi il avoit un fitz R.; le quel G., murust seisi de mesme la terre, apres qi mort Labbe de Burgh Seynt Piere, de qi la dite terre fut tenu par service de chivaler, seisist la garde par resoun del nounage le dit R. Et ceux qe sount pleintifs, clamantz daver la terre par succession deritage, la ou deritage, la ou ils furent filles, abatirent sur la possession le dit R., et Labbe come gardeyn les ousta. Et puis Labbe assigna mesmes ceux tenementz a tenir en dowere en allowaunce &c., et demandoms jugement si de cel estat ils duissent Assise aver.-Skip. Sire, vous veetz 8 bien coment ils relient sur deux choses; lun est de ceo 1 The reports of this term are from the Lincoln's Inn MS. (called L.), the Harleian MS., No. 741 (called H.), the Cambridge MS., Hh. 2, 3 (called C.), and the Isham transcript. 2 From H., and I. In I. the case is placed in Hilary Term next preceding. 4 8 I., devorce. 4 I., clamant. 5 5 I., la dite, instead of daver la. 7 I., dussoint. 8 I., veietz. No. 1. A.D. 1346, the defendant is tenant in dower to which she had become entitled at an earlier time, the other is the privity of blood between us and R., and the ouster by him, in which case, even though we might be able to aver that R. was a bastard, she would rely upon the argument against us that she is tenant in dower to which she became entitled at an earlier time, and would thereby bar us from Assise; and, moreover, even though we might be able to destroy her alleged tenancy in dower, that would not suffice for us without affirming the admitted possession; and therefore we pray the Assise.-R. Thorpe. It is not so for when I have claimed my tenancy in dower, in the right of R., when if it were not in his right it would be in your right, and you could aver that R. was a bastard, that would suffice for you; for, if we claim to hold in the right of one who has not any right, we have forfeited our dower for ever; therefore an issue on the point will suffice for you; therefore, &c.-Skipwith. Then the force of your bar is the privity of blood, and the possession admitted to have been ours on another estate, and the ouster, which matters do not lie in your mouth, since your estate is not of R.'s estate, but of an estate which is tantamount to a defeasance of R.'s estate. And, moreover, since you claim dower in right of another, your conclusion ought to be that you will be ready to be attendant to whomsoever the Court may so adjudge, and not to plead the matter by way of bar. But it would be otherwise if we were the person in whose right you claim to hold, in which case you would plead in bar; therefore, &c.-Grene. If you were to bring a writ of Waste against me, supposing that I held in dower of your inheritance, and I were were to show forth the matter that I now do, that is to ་ en No. 1. qe ele est tenante dowere dun eisne temps A D. 1346 deservi, un autre la privete de saunke1 entre nous. et R., et louster par luy, en quel cas, mesqe nous purroms averer qe R. fut bastarde, ele 2 reliereit sur nous quele est tenante en dowere deigne temps deservi, et par tant nous barrer dassise; et auxi, mesqe nous purroms destrure sa tenance en dowere, ceo nous suffiereit pas saunz affermer la possession conu; par quei nous prioms Lassise.-[R.] Thorpe. Il nest pas issi: qar quant jai clame ma tenance en dowere en le dreit R., la ou si ne fut il serreit en vostre dreit, et vous purrez averer qe R. fust bastarde, il vous suffireit; qar, si nous clamoms a tenir en le dreit celuy qe nad pas dreit, nous avoms forfait nostre dowere a touz jours; par quei un issue sur le point vous poet suffire; par quei, &c.-Skip. Donqes la force de vostre barre est la privete de saunke, et la possession conu a nous sur autre estat, et louster, queles choses ne gisent pas en vostre bouche, puis qe vostre estat nest pas del estat R. [mes dun estat qe amounte en defesaunce del estat R.]. Et auxi, puis qe vous clametz dowere en autri dreit, vostre conclusion serra qe vous serretz prest destre entendant a qi qe la Court agarde, et ne mye a pleder la chose par voye de barre. Mes autre serreit si nous fuissoms celuy en qi dreit vous clametz a tenir, en quel cas vous pledrez en barre; par quei, &c.— Grene. Si vous portassez 10 un brief de Wast vers moi, supposant qe jeo tenisse 11 en dowere de vostre heritage, et jeo moustrace la matere qe jeo face a 8 9 1 I., saung. 2 H., R. 8 I., de eisne. 4 I., jeo ay. 7 The words between brackets are omitted from I. 8 I., estes. 9 I., autre dreit. 10 I., portastes. 5 I., serra. 11 I., tenusse. & I., purrietz. No. 1. A.D. 1346. say that the reversion was to R., as above, I should put you to answer to his existence, so that you would not have the general averment that we hold of your inheritance; so also in this case, since your writ is general, and I have admitted an inheritance in you on the supposition that R. has not any existence, but that fact I shall have by surmise on this original, since your title depends on the possession of each. And as to your statement that it does not lie in our mouth to allege privity of blood, it does so lie, because we show that our estate is dependent on the estate of the person who was the common ancestor, and that by title from him; for if tenant by the curtesy of England be ousted by his wife's brother, and he oust that brother afterwards, he can well plead in bar on the ground that the brother claims to be heir to his wife, whereas she had a son, thus abating on his possession, and that he ousted the brother, because he admits an inheritance in the brother on the supposition that there is not in existence any son to hold to his right; so also in this case.--Haveryngton. As to the writ of Waste of which you speak, the writ is of one form for purchaser and for heir alike, and therefore what you say would not be a plea; and, even though it could be, inasmuch as by the writ he supposes inheritance in himself, it is a sufficient answer to show the contrary; but in this case you do not affirm your estate to be through the person who entered, but rather in defeasance of his estate; therefore it does not lie in your mouth to allege ouster effected on us by a stranger, on whom your estate is not dependent. And, as to the other point, tenant by the curtesy of England has possession immediately after the death of the wife, without demanding it of anyone; therefore whosoever enters |