Page:Harvard Law Review Volume 5.djvu/278

262 262 HAli VA RD LA W RE VIE W. modes of trial ; the regular trial was the old one, the duel. It was only when the tenant claimed the benefit of the statute that the case was tried by the inquisition, or, as it is more usually called in this relation, the recognition. The writ which secured this was mere- ly an auxiliary writ of summons obtained by the plaintiff to meet the emergency in his case which had thus developed. But Glan- ville, later on (lib. xiii. c. i), speaks in detail of a different thing when he comes to possessory writs : " Now we are to speak of the usual proceedings where seisin only is in question. And since these usually go forward by a recognition, by favor of that ordi- nance of the kingdom which is called the assise (ex beneficio consti- tutionis tegni que assisa nominatur), it remains to speak of the various recognitions." Eight recognitions are then named (c. 2), viz. : de morte antecessors, de ultima presentatione, utrum tenemen- tum sit feudum ecclesiasticum vel laicum, utrum seisitus de feodo vel de vadio, utrum sit infra etatem 1 (c. 16), utrum seisitus de feodo vel de warda (c. 14), utrum presentaverit occasione feodi vel warde, de nova disseisina ; — the writs for these are given in succession, and all but the first and the last are merely auxiliary writs, called out, as in the case of the magna assisa, incidentally, in proceedings under some other writ. Glanville also plainly says that in other ways the recognition is reached; as regards incidental points recognitions are ordered, sometimes, by assent of the parties and sometimes by the order of the court (et si que sunt similia que in curia frequenter emergunt presentibus partibus, tunc ex consensu ipsarum partium, tunc etiam, de con- silio curie consideratur ad aliquam cotitroversiam terminandam). In dealing with the first of these writs, Glanville explains, once for all, the procedure. The writ directs the viscount to summon twelve liberos et legates homines de visineto de ilia villa to appear, ready on their oath recognoscere si. . . et interim terram illam videat . . . (ib. c. 3). The viscount is to select these men, in the presence of the parties, if they choose to attend (ib. c. 5). Only two essoins (excuses for delay) are allowed in any pos- sessory recognition, and none at all in the writ of novel disseisin. In considering various dilatory pleas to which the tenant may re- sort, it is said that the question of fact thus raised may be disposed of by a resort ad duellum, vel ad aliam usitatam probationem. As regards the mode in which the twelve are to arrive at their verdict 1 In this case the recognition is by eight.