Bracton: Thorne Edition: English. Volume 3, Page 292

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Volume 3, Page 292

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[001] some destroy the writ and some the assise. If they destroy the writ, because of error,
[002] then as above in the other assises.¹ We must first see, therefore, when and by what
[003] exceptions the assise falls. First of all, the tenant may answer and except that though
[004] all the aforesaid clauses of the writ are true, nevertheless he who now claims as
[005] nearer heir has no action by the assise because another, a nearer heir falling before the
[006] demandant, who survived the common ancestor on whose death the demandant
[007] now brings the assise, though he did not have seisin, remitted and quitclaimed to the
[008] aforesaid tenant his entire right in the possession and the property which descended
[009] or could descend to him, and let him have proof thereof, a charter or the assise. To
[010] this the demandant may have a replication. The tenant may also except and answer
[011] that he ought not to answer without the lord king, since he holds that land of the
[012] gift of the lord king, as in serjeanty, or as of his escheat, or in some other way, in
[013] which case the pleasure of the lord king must be ascertained. And so if he holds of
[014] someone other than the lord king and has the confirmation of the lord king, [he will
[015] not answer without him provided that by that confirmation the lord king would
[016] be bound to provide escambium;² if he is not so bound he will answer without him.]
[017] He may also say and except that he holds that land by the gift of another, made after
[018] the death of such ancestor, as by the gift of an older brother of the demandant. If
[019] the replication is made that he could not give, the triplication may be made that their
[020] common father gave, and that though the gift was invalid, because³ imperfect,
[021] because the ancestor, the donor, died seised, the older brother, though he had no
[022] seisin, confirmed his father's gift and by his confirmation made valid and complete
[023] what at the beginning was invalid because imperfect, because the confirmation
[024] supplied the defect.⁴ He may also answer that he holds that land of the gift of the
[025] ancestor on whose death the demandant brings the assise, and if the replication is
[026] made that he never had seisin in the ancestor's lifetime, the triplication may be
[027] made by the tenant that the demandant himself confirmed his father's or other
[028] ancestor's gift, as something begun though neither completed nor perfected. He may
[029] also answer that the father of the demandant in the assise was a villein, and that he
[030] therefore cannot be an heir, [To which the replication may be made by the demandant
[031] that though his ancestor was a villein, he was freed from villeinage, he and all his
[032] progeny, by some form of liberation, and that since an assise of novel disseisin would
[033] lie for his father or other ancestor if he were disseised of that tenement, and he could
[034] recover by the assise, for the same reason the assise of mortdancestor ought to lie for
[035] his son

Notes

1. Supra 79

2. Infra 301, iv, 197

3. ‘quia’

4. Supra ii, 173, infra 295