Bracton: Thorne Edition: English. Volume 3, Page 144

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Volume 3, Page 144

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[001] he was heir or not, or who was heir.¹ Or that if [the ancestor] died seised as of fee,
[002] this plaintiff could not be his heir since he was neither son nor heir but a bastard, or
[003] if he is a son and near heir, that another is nearer, namely, such a one. To which the
[004] plaintiff may replicate that he is the heir, and even though he was not, that he was
[005] in possession for so long a time that he could not be ejected without judgment. There
[006] are many other such exceptions which can be brought forward, all of which are determined
[007] by the assise in the manner of a jury, which is not open to a conviction, but let
[008] these suffice for the present by way of example. With respect to similar or different
[009] exceptions the procedure will be the same.

If a gift falls into the assise.

[011] If a gift falls into the assise many exceptions may be raised by virtue of it, as where,
[012] [if] the plaintiff says that he was in seisin of that tenement by the gift of such a one,
[013] for so long a time, until such a one ejected him, it may be excepted against him that
[014] he who is alleged to have made the gift never had seisin thereof so as to be able to
[015] make a gift, either because he had none at all, or because, if he had, he had earlier
[016] given the tenement to such a one by his charter, before he had made a charter to the
[017] aforesaid plaintiff, [or] that if he [the plaintiff] had any seisin thereof he had none
[018] except by intrusion after the death of the donor, from which he was ejected immediately
[019] and at once. In that case the assise falls into a jury to ascertain whether he had
[020] seisin in the lifetime of the donor or not, and by that the matter will be determined.
[021] If they know nothing at all as to seisin, the plaintiff will take nothing by the jury.
[022] If they are doubtful, judgment must be given for the possessor. If they say that they
[023] are quite sure of the plaintiff's seisin, and of the day on which he was put in seisin,
[024] but know nothing of the death of the donor because he died in remote parts and in
[025] another county let the truth be inquired into by another jury in the county in which
[026] he died. And so, the results of the two inquests being combined, the matter will be
[027] determined and judgment given for one party or the other.² Let this suffice here by
[028] way of example.

If an agreement or a pact falls into the assise, or the modus of a gift.

[030] A pact or an agreement may also fall into an assise, if introduced when the gift was
[031] first made so that it will become part of the gift and fashion it.³ And so a modus, a
[032] condition and a causa may become part of a gift: a modus, as where it is said, ‘I give
[033] that you do’; a condition, as ‘I give if you do.’ A condition may be introduced in such
[034] a way that one

Notes

1. Infra 156

2. Infra 151

3. D. 2.14.7.5: supra ii, 64, 81, 287