Bracton: Thorne Edition: English. Volume 2, Page 201

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Volume 2, Page 201

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[001] or a writ of right on the proprietary right. But that the arrangement may prevail
[002] rather than perish¹ and that a gift which proceeded from the will of the donor may
[003] take effect,² if the substitute has lawfully put himself in seisin after the death of
[004] the first donee³ and the donor or his heir claims, the substitute will be given an
[005] exception against his action [based upon] the modus of the gift. If the substitute,
[006] being out of seisin, claims, he has no remedy except by a writ specially formulated
[007] ‘of a substitution effected by the modus of the gift,’ which recites the modus in its
[008] text.⁴ The writ will be this, that it may be clear:⁵

Of supposititious birth and when a woman claims to be pregnant though she is not, to the disherison of the true heir.

[010] We have said above that one is presumed to be the heir since he is born of the wife,⁶
[011] and that he is heir whom the marriage shows [to be such].⁷ Since a child sometimes
[012] is substituted by a wife, who pretends to be pregnant when she is not, [sometimes
[013] by a guardian, who substitutes a stranger after the death of the true heir, and
[014] raises him⁸ as heir to the inheritance, though he is neither son nor heir, to the disherison
[015] of the true heir,] we must therefore consider supposititious births and how fraud
[016] of that kind may be proved in the royal court. Suppose that a wife, in her husband's
[017] lifetime, or after his death, claims to be pregnant when she is not, to the disherison
[018] of the true heir, [or though she is pregnant it seems unlikely that the offspring can
[019] be that of her deceased husband, ⁹in which case she must be questioned as to the
[020] time she conceived and the time of her husband's death or departure from her.¹⁰
[021] ¹¹On this matter may be found in the roll of Hilary and Easter terms in the fifth year
[022] of king Henry in the county of Norfolk, [the case] of Peter Constable of Melton and
[023] Muriel the wife of William de Melton.]¹² ¹³On the complaint of the true heir [and]
[024] by order of the lord king, the sheriff shall cause the woman to appear before him
[025] and before the keepers of the pleas of the crown (or before one whom the lord
[026] king has appointed a judge) and to be examined by responsible matrons, by feeling
[027] her breasts and abdomen, in order to discover the truth. If there is the slightest¹⁴
[028] suspicion of fraud she ought to be kept in custody. The form of writ will be this.

Writ for viewing a woman to discover whether or not she is pregnant.

[030] ¹⁵‘The king to the sheriff, greeting. We command you, setting aside all delays and
[031] impediments, to cause to come before you and before the keepers of the pleas of our
[032] crown

Notes

1. D. 34.5.12: supra 78, n. 12

2. ‘effectum,’ all MSS.

3. ‘donatarii,’ all MSS.

4. Supra 195, infra iii, 272, iv, 179

5. No formedon in remainder supplied: Br. and Azo, 243; Milsom in L.Q.R., lxxii, 392

6. Supra 35, 185; infra 204

7. Glanvill, vii, 12; supra 185

8. ‘eum’

9-10. ‘in quo casu ... recessu suo ab ea,’ from lines 30-31; infra 203, iv, 299

11-12. ‘Et de hac ... Willelmi de Meautonia,’ from lines 27-30; C.R.R., x, 36; B.N.B., no. 1503; Selden Soc. vol. 60, cliii-clv

13. Om: ‘Et in duobus ... sit,’ made necessary by the inserted case

14. ‘qualitercumque’

15. Cf. C.R.R., xi, 602; B.N.B., no. 1605; there are echoes of D. 25.4.1. pr. in the writ: G’terbock, 131, n.