Bracton: Thorne Edition: English. Volume 3, Page 285

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Volume 3, Page 285

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[001] of them is first in seisin with the authority¹ of the chief lord. If it is the nephew, the
[002] uncle will never recover against him because of the nephew's advantage of right. If
[003] it is the uncle, the nephew will not recover by the assise of mortdancestor ²<unless
[004] he at once aids himself, by the assise or in some other way, so as to make his uncle's
[005] seisin contentious,> because of the uncle's equality of possessory right. The nephew
[006] will therefore have no remedy other than the writ of right, and thus the uncle will
[007] always remain in seisin, because the judgment on the right will remain in suspense
[008] because of the casus regis. With respect to possession and the possessory right, the
[009] uncle will always be his equal [But if the chief lord is unwilling to admit either of
[010] them until it is clear to him which of them is the more rightful heir, and both claim
[011] against him by the assise, the nephew ought to be preferred because of the advantage
[012] of the mere right, though the assise lies for both. When neither of them is found on
[013] the hearth, and the chief lord holds the tenement in his hand for a long time and
[014] then restores it to the uncle by a fine made with him, since by that the uncle is not
[015] made astrarius, nor is he in seisin except by the deed of another, it seems that, the
[016] writ of right being put aside because of the casus regis, a writ of entry could lie for the
[017] nephew.] when he is out of seisin. When he is in seisin, no writ other than the writ of
[018] novel disseisin can help the nephew because of the suspension of judgment.³ ⁴One may
[019] be called a stranger with respect to the assise of mortdancestor though born of the
[020] same mother from whom the inheritance descends, whether he is male or female,
[021] because of the limitation of heirs, as where land is given in maritagium to such a one
[022] with such a one, his wife, and the heirs of their bodies; all others are strangers.⁵ Thus a
[023] female excludes a male, [by] the jus sanguinis.⁶

‘Was seised.’

[025] ⁷Let us return to the exceptions to be raised against the clauses of the writ. It is
[026] said by the demandant that such a one, his ancestor, was seised, to which the tenant
[027] may except and show the contrary, or that the fact is otherwise. For he may say that
[028] he was never in seisin at any time, and as to that put himself upon the assise, [and]
[029] the demandant that he was, as before, and also put himself on the assise, whereupon
[030] the assise will proceed. Or the tenant may say that if the ancestor ever was in seisin,
[031] it was in the name of another, as procurator, guardian, or curator; or that if he was in
[032] seisin he could not have a free tenement, because he held that tenement only for a
[033] term of years as a fructuary, or in gage as a creditor. If it is said that he had seisin
[034] by way of gift, the tenant can except that the ancestor never

Notes

1. ‘auctoritate’

2. Not in list of addiciones supra i; omitted in LA only

3. Supra ii, 190

4. New paragraph; supplement to 283

5. Infra 310, 312

6. Supra ii, 190, infra 309-10, 312

7. Supra 270, 281