Of assise of nuisance. Of assise of ment. was committed to the freehold of the plaintiff, of which he was seised for life, in tail, or in fee. (a) It appears, that for a mere omission, an assise of nuisance could not be maintained, but the plaintiff was compelled to resort to his action on the case. (b) An assise of darrein presentment lies for tenant in fee, or in darrein present- tail, when he or his ancestors have presented to a church, and the clerk has been instituted, and the plaintiff is afterwards hindered in presenting to the same church. So it lies for tenant for life, or years, if he has himself presented. (c) This action is now entirely disused, a quare impedit being the proper remedy for a disturbance in presenting to a church, since that writ may be maintained wherever an assise of darrein presentment may, though the converse is not true. (d) Thus, a darrein presentment can only be brought where the plaintiff or some of his ancestors have already presented to the church, while a quare impedit lies for a purchaser who has never presented. (e) So to maintain a darrein presentment, it is necessary, that the plaintiff should have the same estate, or a portion of the same estate, by which the former presentment was made (ƒ), which is not required in a quare impedit. On this account it is the safer course to bring a quare impedit upon any disturbance, and it will not, therefore, be necessary to add any thing further respecting the assise of darrein presentment. Of assise of juris utrum. Another species of assise is the writ of juris utrum, or as it is sometimes called, the assisa utrum. It is a writ of the highest nature that a parson can have, and is, therefore, sometimes termed his writ of right. (g) It lies for a parson or prebendary at common law, and by statute 14 Ed. 3, stat. 1, c. 17, for a vicar or warden of a chapel, &c., where the lands or tenements are aliened by his predecessor, or where a recovery is had against (a) F. N. B. 183 I. Com. Dig. Ac- (b) F. N. B. 183 N, note (a). (e) Wats. Clerg. Law, 241, and see post, “Quare impedit.” (f) Keilway, 118, b. Wats. Clerg. Law, 241. (g) Br. Ab. Juris Utr. 4. F. N. B. 48, 50 G. Com. Dig, Quare Imp. (E.) the predecessor by default or reddition, or by verdict, on his neglect to pray in aid, or after a disseisin to the predecessor, or upon an abatement after his death. But, if a recovery is by action tried after aid prayer, and joinder in aid of the patron and ordinary, or, if the patron and ordinary after aid, render the land, or confess the action, the successor cannot have a juris utrum. (a) If the parson joins the mise on the mere right, without praying in aid, in a writ of right, and loses by verdict, the successor, it seems, cannot have a juris utrum. (b) A parson may have a possessory remedy for a disseisin done to himself; but, if it was done to his predecessor, he must resort to a juris utrum. (c) Where two prebendaries make one parson of a church, they must join in a juris utrum (d), but, where one man is parson of one moiety of the church, and another, parson of the other moiety, then one of them may have a juris utrum alone. (e) The plaintiff in a juris utrum should be named parson, vicar, &c., according to the character in right of which he sues; thus, a bishop who brings a juris utrum for land parcel of a rectory annexed to the bishopric, should name himself parson. (ƒ) One juris utrum may be brought against several tenants. (g) The process in this action is a summons, and, if on the return of the summons, the tenant makes default, a resummons shall be awarded, and, upon another default, the jury is taken. (h) No essoign lies after appearance. (i) The writ of juris utrum has become obsolete, principally by reason of the disabling statute of 13 Eliz. c. 10. Of assise of juris utrum. A writ of assise of mortd'ancestor, which is a possessory writ, of assise of founded upon the possession of the ancestor, lies for the heir, mortd'ancestor. where his father, mother, brother, sister, uncle, aunt, nephew, or niece, is seised in fee of any lands, tenements, or rents, or of a corody issuing out of lands, and dies, being so seised on the Of assise of day of his or her death, and a stranger, after such death abates. (a) mortd'ancestor. If the ancestor is seised at any time of the day on which he dies, it is sufficient, though he is afterwards disseised, for the words of the writ are, "if he was seised on the day of his death” (b); and, in one case, a mortd’ancestor was held to lie for a younger brother, where the eldest had been absent out of the realm for several years, although he was not dead. (c) As ejectment may be brought by an heir-at-law against an abator, the writ of mortd'ancestor has now become useless. By the statute of Gloucester, 6 Ed. 1, c. 3, where a tenant by the curtesy aliens his wife's inheritance, and dies, the heir of the wife shall have an assise of mort d'ancestor (d), unless he has assets by descent from the tenant by the curtesy, and this as well where the wife was not seised of the lands on the day of her death, as where she was so seised. At common law, confirmed by the statute of Gloucester, c. 6, if the ancestor dies, leaving several heirs not in the same degree, as aunt and niece, they may join in a writ of mortd'ancestor, and, if one of the heirs is entitled by propinquity to this writ, it is immaterial however remote the other be. (e) It is necessary, however, that the right upon which the several heirs are suing should descend from one and the same ancestor, for otherwise they must sue severally, as for instance, if two coparceners die seised, and a stranger abates, the daughter of the one, and the granddaughter of the other cannot recover in one writ of mortd'ancestor, but the daughter must bring an assise of mortd'ancestor, and the granddaughter a writ of aiel. (ƒ) So if two coparceners are disseised, and one has issue, and dies, the aunt and the niece, i. e. the surviving coparcener and the issue of the deceased, cannot join in a writ, for they have not one right, and, therefore, they must have several actions, but, when they have recovered, they shall hold again in coparcenary. (g) The statute of Gloucester extends to heirs in gavelkind. (h) If the aunt and the niece bring a mortď’ancestor on the dying seised of the father (a) F. N. B. 195 C, D. Com. Dig. Assise, (C. 1). (b) F. N. B. 195 D. nage, 1. Booth, 206. 2 Inst. 400. Br. Ab. Cosi (c) F. N. B. 196 L. Com. Dig. Assise, (C. 1). (d) F. N. B. 196 E. 2 Inst. 292, 3, and other actions, as writs of right, for medon, entry, &c. are within the statute, 2 Inst. 293. (e) 2 Inst. 507, 8. Co. Litt. 164, a. Thel. Dig. 1. 2, c. 1. (f) 2 Inst. 308. Co. Litt. 164, a. ante, p.7. (g) 2 Inst. 308. (h) Ibid. Of assise of of the one, and the grandfather of the other, and the aunt is summoned and severed, yet the niece may proceed and recover mortd'ancestor. a moiety, (although alone she could not have had a writ of mortd'ancestor,) because the writ was rightly commenced, and, when the niece has recovered, the aunt may enter and enjoy the moiety with her. (a) If the ancestor is seised in tail, remainder to himself in fee, and dies without issue of his body, and a stranger abates, a writ of mortd'ancestor will not lie, as it is said, because the ancestor was not, according to the words of the writ "seised in his demesne as of fee, the day whereon he died." (b) And so it is said, that if two men are seised to them and to the heirs of one of them, and he who has the fee dies, and then the other dies, the heir of the former shall not have a writ of mortdancestor, because the fee was never executed in possession. (c) A mortd'ancestor lies only on the death of the ancestor within the degrees which have been mentioned; out of those degrees a writ of aiel, besaiel, tresaiel, or cosinage, lies according to the nature of the case, and, if a mortdancestor be brought, the matter may be pleaded in abatement. (d) So mortd'ancestor is only sustainable on a disseisin or abatement by a stranger, for, if the injury be committed by a parcener, a nuper obiit lies (e), the form of the writ of mortd'ancestor rendering it inapplicable inter conjunctas personas, as privies in blood (f), and this rule holds even between bastard eigné, and mulier puisné. (g) Before the statute of wills a writ of mortd'ancestor did not lie where lands were devisable by will, because, by operation of the will, the right and title might be in another, who was not heir, and the plaintiff, although he proved the points of the writ, viz., that his ancestor died seised, and that he was his next heir, might yet not be entitled to recover. (h) Hence it should appear, that since the statutes of 32 Hen. 8, and 12 Car. 2, whereby all lands are rendered devisable, the writ of mortd'ancestor has become (a) Ibid, and see post, in "Summons and Severance." (b) F. N. B. 196 K. Com. Dig. Assise, (C. 1,) but such seisin is sufficient to maintain a writ of right. Co. Litt. 281, a. ante, p. 22. (c) Br. Ab. Mortd. 59, see Co. Litt. 281, a. (d) Vide post, in "Pleas in Abatement." (e) F. N. B. 196 L, and see in "Nu- (f) Co Litt. 242, a. (h) F. N. B. 196 I. 3 Bl. Com. 187. Of assise of totally useless, and, that where an ejectment cannot be brought, recourse must be had to a writ of entry sur abatement. (a) mortd'ancestor. The process in mortd'ancestor is summons and resummons, and then the assise may be taken by default. The demandant and tenant may be essoigned before appearance, but not afterwards. A view lies by the jury. Voucher, receit, and aid-prayer lie. On the trial three points shall be inquired into. 1. Whether the ancestor died seised the day of his death. 2. Whether he died seised within the time of limitation, (fifty years). 3. Whether the plaintiff is next heir. (b) (a) 3 Bl. Com. 187, but see 1 Leon. (b) See under the proper heads post. 267. Booth, 208. |