[001] against the tenant, if he is of full age and prepared to prove his age, the tenant will [002] not be heard if he wishes to vouch the chief lord to warranty because of some agreement [003] made between them, as where he says that he is bound to warrant him up to a [004] certain term, or beyond the full age of the heir, since that agreement does not touch [005] the heir. Let the assise proceed immediately, and let the tenant sue on the agreement [006] against his warrantor, if he thinks it expedient, because the demandant by the assise [007] of mortdancestor claims nothing in the wardship, nor is the vendor bound to warrant [008] anything to the tenant except the wardship, not the tenement in demesne.
Of the exceptions to be put forward against an assise of mortdancestor.
[010] When [the tenant] in the assise of mortdancestor has no warrantor, or though he has [011] vouches none, because he prefers to undertake the defence himself, many answers and [012] exceptions are available to him arising out of the clauses of the writ, and let him first [013] put those forward. The first thing said is ‘if such a one, the father (or ‘mother’) etc.,’ [014] and thus we must first see on whose death the assise ought to be taken.1
On whose death the assise ought to be taken.
[016] It is clear that it is on the death of a father or mother, a brother or sister, an uncle or [017] aunt. And as it is limited to certain persons, so is it limited within certain degrees, [018] so that it does not extend upward to a grandfather nor downward to a grandson, [019] because the assise will never lie on the death of a grandfather, nor similarly on the [020] death of a nephew, though the nephew may have the assise on the death of an uncle [021] or aunt. Nor will the assise ever lie between kinsmen, brothers and sisters, grandsons [022] and granddaughters, greatgrandsons and greatgranddaughters, and so on [023] descending, [nor will cosinage,] with respect to any inheritance or for anything which [024] descends hereditarily from a common stock, only the writ of right; but against [025] strangers the assise will lie in so far as it extends. For those persons to whom the assise [026] does not extend, cosinage lies, which derives entirely from the assise, as will appear [027] more fully below.2
How the demandant ought to prove his claim.
[029] Once the demandant has put forward his intentio he must support and prove, by [030] the assise in the manner of an assise, all the clauses of the writ, that is, that such a [031] one, the ancestor whose seisin he claims, was seised, and in his demesne as of fee, [032] and on the day he died, and that he died after the term, since this assise like the [033] others is limited to a certain term. And if he fails as to one of these clauses the assise [034] will fall as though he had failed in all.
Volume 3, Page 269
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