Bracton: Thorne Edition: English. Volume 3, Page 293

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Volume 3, Page 293

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[001] and heir, or his daughter, as for his progeny, for a tenement of which his father thus
[002] died seised as of fee.]¹ [as may be said] to the son or daughter of a villein residing
[003] in a villeinage, within the potestas of his lord and not manumitted, if he has acquired
[004] land outside the villeinage, [who] will have no heir except his lord, provided the lord
[005] has taken the tenement into his hand during the villein's lifetime or after his death.
[006] If sister claims against sister by the assise a tenement which descends from a common
[007] stock, the sister-tenant may except that the assise does not lie because of equality
[008] of right, since each of them is a nearer heir, with respect to seisin and right, and that
[009] therefore an action must be brought on the right by a writ of purparty.² If two
[010] sisters, one of whom is legitimate and the other a bastard, both claim together by
[011] the assise, though the jurors have attested the fact that one of them was born before
[012] marriage and the other after, the assise will proceed nevertheless and both will
[013] recover by the assise, saving the right of each for the future, so that the legitimate
[014] sister, when she wishes and has reached full age, may sue against her sister by writ
[015] of right, and allege bastardy against her tenant-sister when she replies, as [in the
[016] roll] of the eyre of Martin of Pateshull in the county of Suffolk, an assise of mortdancestor
[017] concerning a certain Mabel and Joan.³ The same, so it seems, may be said
[018] in the case of a villein who is a parcener with free men, because ubi eadem ratio ibi
[019] idem jus.⁴<And so in the county of Cornwall, [where] by custom if a free man marries
[020] a neif in⁵ a free tenement and a free bed and two daughters are born to them, one
[021] will be free and the other bond, for there the children are divided between the free
[022] father and the lord of the villein wife.>⁶ The tenant may answer the heir claiming by
[023] the assise and admit that he is the heir, but that he cannot have seisin before some
[024] future time, as [in the roll] of the eyre of William of Ralegh in the county of Buckingham,
[025] an assise of mortdancestor [beginning] ‘if Alice.’⁷ To which the replication
[026] may be made by the demandant that the tenant cannot retain the tenement by the
[027] law of England because he had no issue by his wife, or⁸ if he had children they were
[028] proved bastards,⁹ And so if they died in the womb, or were born monsters. If it is
[029] admitted that the ancestor died seised as of fee, nevertheless the heirs may take
[030] nothing by the assise because immediately on the death of the ancestor, by force
[031] of an agreement and a pact added at the outset, what the tenant first held for a term
[032] he began to possess for life or in fee.¹⁰ Hence if the heir begins to claim by the assise,
[033] the exception of agreement will bar¹¹ him, forever or for a time, because immediately
[034] and without delay upon the death of the ancestor, without any passage of
[035] time or any

Notes

1. Infra 299

2. Supra 282, infra 312, 324

3. B.N.B., no. 1909; supra 208

4. Supra i, 404

5. ‘in’

6. Om: ‘sed in hoc . . . ut supra’

7. Not in B.N.B.

8. ‘vel’

9. Supra 125, 151, infra 311

10. Supra ii, 73, 74, iii, 287

11. ‘obstabit’