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[001] that is, where suit must of necessity be brought by writ of right, because an exception
[002] of bastardy determines the whole matter, both on the possession and the property,1
[003] which neither the assise nor cosinage do, which are only on the possession. Hence it
[004] will not lie between related persons, only between strangers, though it seems at
[005] first sight that between related persons it may proceed to ascertain bastardy,2 that
[006] if he against whom the exception is raised cannot prove himself legitimate, he may
[007] fall from his action and cause, or lose his seisin, according as the objection is raised
[008] against a demandant or a tenant.3 The matter is so determined, according to some.
[009] But because he may just as easily prove himself legitimate and make himself a related
[010] person, and the circumstances would then be those in which the assise cannot begin
[011] nor lie, only a writ of right, the exception of bastardy does not lie any more than does
[012] the assise.4 5If bastardy is raised, it sometimes is determined in the secular forum,
[013] sometimes in the ecclesiastical, as will be explained more fully below [in the same
[014] tractate.]6 If when no objection of bastardy is raised, the jurors in their verdict
[015] say that the demandant is a bastard, simply or with the addition that he was born
[016] before marriage, the assise will not proceed because the claim is void and falls. And
[017] so of a tenant, as [in the roll] of the last eyre of Martin of Pateshull in the county of
[018] York, near the end of the roll.7 And so if bastardy is objected in this way, that the
[019] demandant was born two or three years before the marriage, and the parties put
[020] themselves upon a jury and the jurors say, without any mention of bastardy, that
[021] he is a nearer heir and that his ancestor died seised as of fee and after the term, so
[022] that all the clauses of the writ are satisfied; no further inquiry will be made as to
[023] bastardy, because legitimacy is thus indirectly proved, as [in the roll] of the eyre
[024] of William of Ralegh in the county of Kent, an assise of mortdancestor [beginning]
[025] ‘if Adam le Gardiner.’8 The jurors will not here be open to a conviction, because of
[026] the consent of the parties, but if bastardy is not objected, as above, they will be.
[027] We must also see the persons involved [in order to ascertain whether] an inquest of
[028] bastardy ought to proceed, because it is important whether he against whom the
[029] objection is made, or he who raises it, is of full age or a minor.9 Where one is below
[030] age and tenant, the inquest does not proceed before his majority, as where his
[031] guardian says that he holds nothing except in wardship with such a one who is
[032] within age, and it is excepted that the ward is a bastard, as [in the roll] of the eyre of
[033] Martin of Pateshull in the county of Kent in the eleventh and the beginning of the
[034] twelfth years of king Henry in Michaelmas term, an assise of mortdancestor [beginning]
[035] ‘if William of Herst,’10 [where] the inquest remained until his full age. But in
[036] the same eyre the contrary appears, in an assise of mortdancestor [beginning] ‘if



Notes

1. Infra 324

2. ‘ad cognitionem bastardiae’

3. Supra 283, infra iv, 301

4. Supra 283, 312, infra 324, iv, 301

5. New paragraph

6. Infra 317, iv, 295 ff.

7. B.N.B., no. 1879

8. Not in B.N.B.

9. Infra iv, 301

10. B.N.B., no. 1775; infra iv, 301


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