Consanguinity, also, takes away the Assise; namely, if the Demandant and Tenant should have sprung from the same stock from which the Inheritance, the Seisin of which is in question, has descended, and such fact has been objected and proved in Court.[458] Another cause has been mentioned in treating of Marriage-hood, when the Eldest Son has given a certain part of his Lands to his Younger Brother, who dies without leaving any Heir of his Body.[459] In this case, as in others of a similar description, the Assise we are now treating of shall cease, since the same person cannot be both Heir and Lord of an Estate.[460] If, also, the Demandant be convicted, or, indeed, confess, that he was formerly in Arms against the King, the Assise which he so demands in Court shall from such circumstance cease.[461] By reason, also, of Burgage Tenure, the Assise does not usually proceed. This is in compliance with a particular Law of the Realm,[462] having for its object greater utility. But, if no exception be taken in Court, on account of which the Assise ought to cease, the Recognition shall proceed; and, in the presence of both parties, the Seisin shall, on the oaths of the twelve Jurors, and according to their verdict, be adjudged to the one or the other, in the manner described in a former part of this Book. [Footnote 458: Vide ante L. 2. c. 6.] [Footnote 459: Vide ante L. 7. c. 1.] [Footnote 460: Vide ante L. 7. c. 1.] [Footnote 461: Bracton 272. b.] [Footnote 462: We may conjecture, that this Law was corroborative of the particular Customs of certain Cities and Boroughs, under which the Citizens and Burgesses could make a Will of Lands. Where such Customs prevailed, it was an idle thing to inquire whether the Ancestor died seised. It seems, London and Oxford enjoyed these Customs. (Bracton fo. 272.) Mr. Somner conceives, that the utility aimed at by the Law in question and the foundation of it was, the good of the Commonwealth, by the maintenance of traffic, which was much encouraged by the liberty of a free devise, though this is somewhat darkly pointed at, as he says, by Glanville in the present passage. (Somner on Gavelkynd, p. 97.)] CHAP. XII. But, when a Minor prays an Assise of the kind we are treating of against one of full age, then, indeed, the latter shall not be allowed any Essoin against the former, because, on the first day, the Recognition shall proceed, whether the Tenant appear, or absent himself. And this upon a general principle.