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[001] mortdancestor does not lie but a writ of right.1 2<And note that the assise of mortdancestor
[002] lies for the eldest brother [against strangers, not relatives,] whether he
[003] himself is the feoffor or some common ancestor from whom the inheritance descends
[004] to him, notwithstanding the fact that he, or the common ancestor whose
[005] heir he is, has taken homage; he will always have first seisin,3 no matter who is in
[006] seisin, a relative or another, provided that if it is a relative a writ of right lies, if a
[007] stranger the assise of mortdancestor. Nor is the exception that he cannot be heir and
[008] lord valid, because neither the assise of mortdancestor nor the writ of right lies for
[009] any but the eldest, since he always has the greater right. But when he has recovered
[010] seisin, a writ of right will then lie against him for the nearer heir, [his] son or daughter,
[011] brother or sister. If he excepts that he is the nearer heir because of the mere right,
[012] the replication may be made by his nearer heir that he cannot be lord and heir,
[013] because of the homage.4 If no homage has been taken, as where a tenement is granted
[014] to a younger son by the common ancestor to support him, or for service without5
[015] homage, it will be otherwise. [Thus] if the heir and eldest son is unwilling to sue
[016] against the chief lord or a stranger in seisin, the other heirs will never have an action
[017] in his lifetime, because he has the greater right etc. And note that when from his hand
[018] and seisin descent has once been made to those who are then nearer heirs, it will never
[019] afterwards be taken away because of some supervening nearer heir.>6 A sister claimed
[020] by assise of mortdancestor against a nephew, the son of her sister, on the death of
[021] her sister; he answered to the assise that he was the son and lawful heir of his mother,
[022] the sister of the demandant by the assise, and the answer was made him that he
[023] could not be heir because his father was a villein, and because this looked to the
[024] right the assise of mortdancestor did not lie, as [in the roll] of the eyre of Martin of
[025] Pateshull in the county of Lincoln in the tenth year of king Henry, an assise of
[026] mortdancestor [beginning] ‘if Agnes, daughter of Ellis de Beningeworthe.’7 [But
[027] why could not inquiry be made by the assise taken in the manner of a jury as to
[028] whether he was such or not, as in the case of a bastard?8 Though a person's status
[029] could not be litigated after his death, on this matter an inquest as to that might well
[030] be taken, as [in the roll] of the eyre of the same Martin in the tenth year of king
[031] Henry, an assise of mortdancestor [beginning] ‘if William de Carletone.’]9 And this
[032] without other proof. Against a woman10 claiming by the assise it was objected that
[033] she has nephews, through her sister, who have as much right as the demandant
[034] herself. It was replied on the part of the demandant that the aforesaid sister was
[035] married to a villein, so that the children are villeins. If this



Notes

1. Supra ii, 192, iii, 295, infra 314; B.N.B., no. 564 and n.

2. Supra i, 405

3. Supra ii, 192, iii, 294, infra 314

4. Infra 314

5. ‘sine’; supra ii, 110

6. Infra 314

7. Not in B.N.B.; supra 294

8. Supra 92, 93, 288

9. Not in B.N.B.; supra 299 (12 H.3: Suffolk eyre)

10. ‘mulieri,’ all MSS


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