Bracton: Thorne Edition: English. Volume 3, Page 251

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 251

Next

Go to Volume: Page:

[001] [of B.], since they are so to speak in the same degree as the grandfather and grandmother.
[002] But the writ does not extend in the ascending line beyond that degree, to the
[003] extent that it touches the assise of mortdancestor, because the assise does not extend
[004] further. But to the extent that it touches cosinage it extends further [by ascending
[005] than to a grandfather, to a greatgrandfather's greatgrandfather, and by] descending
[006] than to a grandson, to a greatgrandson's greatgrandson, if the time limit of the
[007] assise of mortdancestor permits, for¹ all are called ‘cousins.’² [More will be said of
[008] this matter below in the tractate on cosinage.] When an assise of mortdancestor is
[009] to be joined with cosinage, recourse must not first be had to the praecipe of cosinage
[010] but to the assise of mortdancestor, because the person who is nearer and makes it an
[011] assise draws to himself the [other] person and the more remote degree, so that here
[012] let the assise proceed rather than the praecipe, because that which is more remote
[013] from the common origin does not draw to itself that which is closer, but conversely,
[014] in every case. Each of these [actions] may well be joined with the other because each
[015] speaks of the seisin the deceased had on the day he died, and of the possession and
[016] not the property, which is not so in the writ of right.³ If so, any successor and any
[017] ancestor may be joined in an assise of mortdancestor who may be brought into a
[018] plea of cosinage, as where it is said ‘such a one, the brother or⁴ sister, and such a one,
[019] the grandson or more distant cousin,’ in the descending line, or ‘such a one, the
[020] brother or sister, and such a one, the ancestor,’ in the ascending line, [for] the reason
[021] will be the same. There are also other writs which are somewhat like this, on the
[022] death of an uncle or aunt where the inheritance is partible, where the nephew is
[023] always joined with [his] uncle or aunt in an assise of mortdancestor, and where it is
[024] not mixed with cosinage, where the writ says ‘if A. the uncle (or⁵ ‘aunt’) of B. and
[025] the brother (or ‘sister’) of C., whose heirs they are, was seised in his (or ‘her’)
[026] demesne as of fee etc.’ But if the inheritance is not partible and the uncle brings an
[027] assise of mortdancestor on the death of [his] father or mother, [brother or sister],
[028] or uncle or aunt, and [his] nephew by [an older] brother brings a writ of cosinage,
[029] the nephew will always be preferred against the chief lord and against strangers,
[030] with respect to a nonpartible inheritance, because of the advantage of the right
[031] which descends to him.⁶ And so if each arraigns an assise of mortdancestor against a
[032] stranger, the nephew on the death of [his] uncle or⁷ aunt on his mother's side and his
[033] uncle on the death

Notes

1. ‘quia’

2. Infra 318

3. ‘quod non . . . de recto,’ from lines 17-18

4. ‘vel’

5. ‘vel’

6. Infra 269, 284

7. ‘vel’