Bracton: Thorne Edition: English. Volume 3, Page 290

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Volume 3, Page 290

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[001] that the assise be taken and if the jurors should say that Eudo died seised as of fee
[002] and if Walter recovered his seisin, that Ranulf should await Roger's full age and then
[003] have his recovery against Roger on the warranty.’> The writ also says, ‘in such a
[004] vill.’ To which answer may be made,¹ [as above [in the portion] on novel disseisin,
[005] ‘if error is found in the writ.’]²

‘On the day he died.’

[007] ³With respect to the clause ‘on the day he died,’ the exception and answer may be
[008] made that though the ancestor was in seisin at some hour of the day, he did not die
[009] seised, because, though in seisin in the morning or at some other time, he gave that
[010] land on that same day to such a one at tierce and died at noon. [He may say that] long
[011] before his death he withdrew himself and gave that land to the tenant who now
[012] holds, by his charter, which he produces, so that a fine was made in the court of the
[013] lord king and a chirograph by a writ of warrantia cartae, so that the aforesaid ancestor
[014] acknowledged the gift in the king's court and warranted that land to him as
[015] that which he held and had of his gift. To which the demandant may replicate and
[016] say that whatever the tenant may say of a gift and⁴ charter, he never had seisin by
[017] the gift nor by that charter, but he who is alleged to have made the gift always
[018] remained in seisin, after the charter as before, and never changed his status⁵ but
[019] died seised as of fee, and as to that put himself on the assise. He may also say that
[020] the fine and chirograph ought not to harm him since they depend on the gift, which
[021] ought to be the principal thing, which is void, and since the principal does not exist,
[022] things consequent upon it ought not to be valid.⁶ ⁷He may say, in order to support
[023] his allegation, that the writ of warrantia cartae was impetrated under a suggestio
[024] falsi, in that he led the lord king's court to believe that he was in seisin when he was
[025] not, and hence that the chirograph based upon that falsehood and deception ought
[026] not to be valid. Nor ought an acknowledgement, made by him who is alleged to have
[027] made the gift, that he was in seisin when he was not, to be valid, since the admission
[028] agrees neither with the facts nor with the truth, and that he died so seised let him
[029] put himself on the assise.⁸ If the tenant relies on the fine and is unwilling to put
[030] himself on the assise with respect to the demandant's replication, he will remain
[031] undefended and will thus lose by judgment, without jury or assise. For a demandant
[032] may be undefended against a tenant with respect to an exception, just as a tenant
[033] may be against a demandant with respect to an action, if he is unwilling to answer the
[034] demandant's action or intentio. And the same may be said of a replication and
[035] triplication and others beyond. When the tenant freely puts himself on the assise or

Notes

1. Deleted

2. Supra 79

3. Supra 275

4. ‘et’

5. Supra ii, 107, iii, 270

6. Supra ii, 150-51

7. The words that appear only in the margin of OA, ‘Casus Roberti de Shute,’ refer to one of Br's decisions (supra i, p. xii), from which the following lines are taken: Somerset Pleas, no. 1491

8. ‘se ponat in’