Bracton: Thorne Edition: English. Volume 3, Page 288

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Volume 3, Page 288

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[001] nothing could descend to heirs because he was a bastard; the plea is not then to be
[002] sent to court christian to prove the bastardy, because one who is dead cannot be
[003] proved a bastard since he can neither answer nor except, but whether he was a
[004] bastard or not may be inquired¹ into by the assise taken in the manner of a jury,²
[005] if both parties agree to a jury, on which, [if one is unwilling],³ [let it be done as above,
[006] of him who remains undefended.]⁴ The same may be said in the case of a bastard
[007] enfeoffed to hold to himself and his heirs if he dies without an heir [of his body].
[008] It may be answered that the ancestor did not hold in fee, but as of pledge or wardship
[009] etc., as above. Or that he did not hold in fee but of the bail and at the will of the
[010] grantor.⁵

The writ says ‘of so much land;’ if there has been an error in impetration, the exception because of the error.

[012] Let us return to the clauses of the writ, that is, where it is said ‘of so much land with
[013] the appurtenances in such a vill.’ If there is an error in impetration, [an exception
[014] lies for the tenant because of the error],⁶ as where one puts ‘tenement’ in the writ
[015] instead of ‘rent,’ or conversely, [or] ‘rent’ for ‘services and customs.’ And so if there
[016] is an error in the size of the tenement, as where one puts ‘two carucates’ where the
[017] ancestor died seised only of one. And so if one claims service under the name of an
[018] annual rent, since service issuing from a tenement given for homage has a cause
[019] different from that of an annual rent given to a feoffee. Let the demandant see that
[020] he does not claim more than the tenant holds, for if he does the writ falls and the
[021] assise is deferred because of the excessive claim.⁷ If he claims less it will be otherwise.
[022] With respect to the ancestor's possession, we must see its kind and quantity, by what
[023] boundaries and by what measure, whether the standard of measurement [used]
[024] when the tenement was given to the ancestor was generous or strict, according as it is
[025] claimed by carucates, librates or virgates or by the number of acres, and for how
[026] large a tenement the ancestor held that tenement on the day he died, as it was then
[027] measured, strictly or generously, [for if the tenant holds it] as it then was, though there
[028] is more there or less,⁸ the writ does not fall; [more] because of a generous measurement,
[029] or less,⁹ because of a strict one. But if the tenant does not hold it as it then was,
[030] the writ falls because of the defect, whether there then was more or less, as where at
[031] first there was more than one carucate, by a generous measurement, [and] a portion
[032] thereof is lacking; the writ falls, though by strict measurement there is [still] one
[033] carucate there. It does not suffice if the demandant says that the tenant holds

Notes

1. ‘sed an talis fuit vel non inquiri poterit’

2. Supra 92-3, 109, infra iv, 307-8

3. ‘in quam si quidam,’ as 287; remainder deleted

4. Supra 287

5. Plucknett, The Mediaeval Bailiff, 17

6. Supra 81

7. ‘plus petition,’ supra 281, infra iv, 348

8. Om: ‘quia si . . . sic,’ miscopied: infra lines 33-34

9. ‘vel minus’