Bracton: Thorne Edition: English. Volume 3, Page 283

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Volume 3, Page 283

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[001] within certain degrees and with respect to certain persons and does not extend
[002] beyond them. The assise lies between the aforesaid persons and strangers, as far as it
[003] extends, but where it does not lie, beyond certain degrees, cosinage will lie between
[004] the same persons, ascending to the greatgrandfather's greatgrandfather and descending
[005] to the greatgrandson's greatgrandson, because between whatever persons
[006] the assise lies within its limits, between those persons cosinage will lie beyond them.
[007] Conversely, between whatever persons the assise does not lie within its limits, between
[008] those persons cosinage will never lie beyond them, only the writ of right, as between
[009] the persons noted above, as will be explained below.¹ The assise lies for the aforesaid
[010] persons on the death of the abovesaid persons against strangers, as where a chief lord
[011] is in seisin, or any other stranger, as a uterine brother by another father, or another
[012] mother, one from whom the inheritance does not descend, for such persons are
[013] strangers, so to speak, since they are not capable of inheriting. Similarly and a
[014] fortiori, illegitimates and bastards may be called strangers, though they are uterine.
[015] ²Nevertheless, according to some, the assise does not lie between such persons,
[016] though they are bastards, not even to the extent that it may proceed to prove
[017] legitimacy,³ because by that the matter cannot be determined,⁴ ⁵<because if such
[018] co-heir proves himself legitimate he does not thereby prove himself a nearer heir,
[019] though he proves himself an heir,>⁶ because if he can prove himself legitimate in an
[020] inquest⁷ of bastardy the assise will then no longer lie but recourse must be had to a
[021] writ of right, lest the proprietas and the mere right be determined under the guise of
[022] possession, which ought not to be. But if bastardy is objected against such persons
[023] by strangers, let the inquest of bastardy proceed, as between any other persons.
[024] Though between the persons aforesaid no writ other than the writ of right lies, it will
[025] lead neither to the duel nor the grand assise, but both the possessory right and the
[026] mere right will be determined by a narration of the descent from the common stock,⁸
[027] because after the computation has been made it may easily be ascertained who the
[028] first-born, nearer and more rightful heir is, because of right and age, of sex and the
[029] same propinquity, or because of the right line and the transverse.⁹ ¹⁰If a grandson in
[030] the descending right line is first in seisin, he completely excludes his uncle from the
[031] succession if the latter claims against him by the assise, because it does not lie.¹¹
[032] If he claims by writ of right, the grandson excludes him completely by reason of the
[033] right, which descends to him and not to the uncle, and by reason of the right line
[034] which completely excludes the transverse as long as anyone may be found in it,
[035] male or female, who will be nearer heirs for the reason aforesaid.¹² And not only does
[036] the grandson or granddaughter when they are in possession exclude the uncle and
[037] others

Notes

1. Infra 318

2. New sentence

3. Infra 312, 316, iv, 301

4. Infra 324, cf. 316

5. Supra i, 403

6. Infra 312, 324, iv, 301

7. ‘inquisitio,’ as infra 316, iv, 302

8. Infra 313, 320

9. Supra 279

10. New paragraph

11. Supra ii, 189, iii, 252, infra 322

12. Supra ii, 189, 196