Harvard Law School Library

Bracton Online -- English

Previous   Volume 4, Page 261  Next    

Go to Volume:      Page:    

[001] an hereditatis petitio, a plea ought first to be moved in our court, and, when bastardy
[002] has there been objected, then and only then ought the record of the plea and cognisance
[003] of the bastardy to be transmitted to court christian, that there by our order an
[004] enquiry be made as to legitimacy, which rule was not here observed. Since it is manifestly
[005] against the custom of our realm, that when there is, or is to be, a dispute as to
[006] the right of succession between any parties, that you ought to proceed to an enquiry
[007] as to legitimacy before the matter has been entrusted to you by us, we forbid you etc.
[008] (as above).’

If when a demandant has alleged bastardy against a tenant or conversely, and he against whom the objection was made has died, the judge wishes to enquire as to the legitimacy of the son, though this is not entrusted to him.

[010] There is also a prohibition of another kind, when a demandant has objected bastardy
[011] against a tenant and an enquiry has been entrusted to the ordinary of the place, and
[012] after the death of the demandant (or tenant) the ordinary wishes to proceed to an
[013] inquest as to the status of the heir, without a new mandate.‘The king to such an
[014] ordinary, greeting. A. son and heir of B. has shown us that when C. in our court,
[015] before the justices last itinerant in such a county, claimed against the same B. so
[016] much land etc. by an assise of mortdancestor there summoned between them, the
[017] same B. alleged bastardy against the said C. in the same court, cognisance [of which]
[018] was entrusted to you, and that while the enquiry was pending the same B. ended his
[019] last day, that you have caused the aforesaid A. son and heir of the aforesaid B. to be
[020] called into court on the aforesaid pretext that the enquiry proceed in the person of
[021] the heir of the deceased, without another mandate, and because if one of the parties
[022] to a case in our court dies, the whole of that plea falls and remains and cannot
[023] proceed against the heir of the deceased except by our writ newly impetrated against
[024] him, we order you not to proceed further in cognisance of the said cause against
[025] the aforesaid A. until you have another mandate from us. Witness etc.’1

To whom a prohibition ought to be directed.

[027] We must see to whom a prohibition2 ought to be directed. It is clear that it must be
[028] sent to him who holds the plea and to him who sues, whether there are several judges
[029] delegate or sub-delegate or only one, as the ordinary, and whether there is one who
[030] sues or several, though at first sight it seems that it ought to suffice if the prohibition
[031] is directed only to the judge, because if the judge is unwilling to proceed it will be to
[032] no avail that the plaintiff wishes to sue, for there will there be no judicial proceeding,
[033] there being, so to speak, no judge. If


1. This seems to be the case (1235-6) noted in Selden Soc. vol. 87, cii, n. 1

2. ‘prohibitio’

Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College