Bracton: Thorne Edition: English. Volume 3, Page 156

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Volume 3, Page 156

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[001] the same act. It is always better to recur to the rolls and the judgment of the justices.
[002] If he says that he recovered by the judgment of his own court, let him vouch his court
[003] to warranty.>

Bastardy also falls into an assise.

[005] Bastardy also falls into the assise of novel disseisin, between brothers, one of whom
[006] first puts himself into seisin after the death of his ancestor. In that case we must see
[007] whether seisin is vacant or not, that is, whether the chief lord has first seisin or not.
[008] If he has, and one of the two who claim that they are heirs¹ puts himself into seisin
[009] on the seisin of the chief lord, thus not into vacant seisin, the chief lord may well reeject
[010] him with impunity, at once or after a time, because the intruder will not recover
[011] by the assise, because he did not find the seisin vacant, but the chief lord will remain
[012] there until it is clear to him who the heir is. But if first seisin is secured not by the chief
[013] lord but by one of the two who claim to be heirs,² whether he is heir or not, legitimate
[014] or a bastard, and he is in seisin for some time, the chief lord cannot eject him with impunity.
[015] If he ejects him de facto and the other brings the assise, he will recover despite
[016] any exception. If the chief lord excepts bastardy against him when he seeks restitution,
[017] that exception will not lie in his mouth,³ when there is another who claims to
[018] be heir,⁴ because that exception does not belong to him but to the other, he who claims
[019] to be heir, nor [does it belong] to the chief lord though the other is not heir. If the
[020] intruder, though a bastard, is in seisin for a time which suffices for title, through the
[021] negligence of the chief lord, he cannot be ejected without judgment, for here, on
[022] account of the elapsed time, cognizance must first be taken of the forcible ejection
[023] rather than the right of escheat.⁵ ⁶If he says that he was never in seisin of a free tenement
[024] because another is the nearer and more rightful heir, that exception will not
[025] lie in his mouth, since that tenement cannot [then] be his but another's, nor is an
[026] exception acquired by reason of another's right.⁷ The seisin of the chief lord ought
[027] to be simple when he does not find it vacant.⁸ Hence when he has recovered his seisin
[028] by the assise, let it then first be ascertained if he is the heir or not, nearer or near or
[029] remote, legitimate or a bastard, and accordingly an action will lie for the true heir
[030] or the chief lord. The same is true if a legitimate heir ejects the bastard.

When the disseisor dies or the disseisee or both, their heirs are aided by a writ of entry because the assise falls completely, both as regards the penalty and restitution, or only as to the restitution, depending upon whether it has been begun against the deceased or not.

Notes

1. ‘contendunt se esse heredes’

2. Supra n. 1

3. Supra 47, 51, infra 174

4. Supra 51, infra 247

5. Supra ii, 320, iii, 135

6. Om: ‘Item non . . . exceptio’

7. D. 7.6.5.pr.; supra 134

8. Infra 245