Bracton: Thorne Edition: English. Volume 3, Page 291

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Volume 3, Page 291

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[001] jury, by that the matter of seisin will be determined. He may also say that the ancestor
[002] did not die seised because he was disseised long before his death and failed to
[003] sue during his lifetime, because of his negligence, [to which the replication may be
[004] made that] he could not because of weakness.¹ Thus a fine levied [and] an assise of
[005] novel disseisin fall into the assise of mortdancestor. ²<He may also answer that he on
[006] whose death the demandant brings the assise is alive.>

‘If such a one is the nearer heir.’

[008] ³With respect to the words ‘the nearer heir,’ the exception and answer may be made
[009] that though the demandant is a near heir another is nearer, because of age or sex, as
[010] above.⁴ [Or] that if he is a nearer heir, since the land is partible there is another equally
[011] near, who is not named in the writ. [Or] that he who claims as nearer heir can be neither
[012] nearer, near nor remote, because he is a villein, and thus the question of status
[013] falls into the assise of mortdancestor; how that exception ought to be determined
[014] may be drawn,⁵ [as above in the tractate on novel disseisin.]⁶ ⁷<If in a proprietary
[015] action by writ of right one claims in demesne what another holds in demesne and in
[016] service what he holds in service, that which he once claims in service he may never
[017] afterwards claim in demesne. It is otherwise in a possessory action, as where one
[018] claims by assise of mortdancestor [in this way, the assise falls if an exception is
[019] raised,⁸ nor] may the demandant correct the error. A replication of this kind is
[020] valueless in a proprietary action.>

‘Which land such a one holds.’

[022] ‘Which land such a one holds,’⁹ to which the exception may be made by the tenant,
[023] when the whole is claimed of him, that he does not hold the whole¹⁰ as the demandant
[024] claims it nor as his ancestor held it. If he says that not he but another holds the whole
[025] tenement, and his adversary answers that the other is the tenant's villein and holds
[026] of him in villeinage, unless the demandant has proofs immediately at hand, kinsmen
[027] or others, the tenant will withdraw quit of this writ, as [in the roll] of the eyre of the
[028] abbot of Reading and Martin of Pateshull in the county of Warwick, an assise of
[029] mortdancestor [beginning] ‘if Fredericus.’¹¹

The exception that the demandant remitted or confirmed after the right descended to him.

[031] In addition to the answers and exceptions arising from the clauses of the writ, there
[032] are many other exceptions, extravagantes, so to speak, which emerge by chance or
[033] accident; some of these defer the assise temporarily,

Notes

1. Supra 158-9, 270

2. Supra i, 404

3. Supra 278

4. Supra 279

5. Deleted

6. Supra 83 ff.; infra 315

7. Supra i, 404; belongs in next section

8. Infra 296

9. Supra 280-81, 289, infra 296

10. Om: ‘nec in . . . pertinentiis’

11. Selden Soc. vol. 59, no. 524; not in B.N.B.