Bracton: Thorne Edition: English. Volume 3, Page 294

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Volume 3, Page 294

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[001] formality, the tenant begins to possess by force of the agreement, because (if he is
[002] to hold in fee) the right which ought to descend to the heir immediately descends to
[003] the possessor. The same may be said of land given in pledge¹ to remain to the creditor
[004] [in fee] if his money is not paid on the day, or [not paid] to a certain person by a
[005] certain person [as by the debtor], even without a day specified, as above² so that³
[006] he begins to possess in fee at the death of the debtor,⁴ or if a day is specified, at dusk,
[007] since the whole day is granted to the debtor.⁵ ⁶[The assise does not lie] if one claims
[008] by the assise against a woman holding in the name of dower the portion she holds in
[009] excess of her dower, for there admeasurement lies.

Where the assise of mortdancestor does not lie.

[011] ⁷If a sister claims by the assise against her nephew, the son of her sister, [on the death
[012] of the sister], and the nephew says that he is the lawful heir of his mother, [the sister]
[013] of the aunt⁸ who claims, and it is objected by way of replication that he cannot be the
[014] heir since his father was a villein, the assise will not lie, because this answer looks to
[015] the right, as [in the roll] of the eyre of Martin of Pateshull in the county of Lincoln in
[016] the tenth year of king Henry, an assise of mortdancestor [beginning] ‘if Agnes,
[017] daughter of Ellis de Beningworthe.’⁹ The assise also remains if it is objected against a
[018] woman claiming by assise that she had a sister whose children survive, who have as
[019] much right as she who claims. If she answers that those children are villeins and born
[020] of a villein father, though this is established in some way, the assise will remain,
[021] because all this pertains to the right, as above, as [in the roll] of the eyre of William
[022] of Ralegh in the county of Buckingham, an assise of mortdancestor [beginning] ‘if
[023] Henry Bussell.’¹⁰ And so if the objection is raised against a demandant by assise
[024] that his father was a villein, and he to the contrary that he was in a free status and
[025] died in such status beyond the potestas of his lord, because being claimed in servitude
[026] he sued a writ of peace pending the arrival of the justices, and had it, but died before
[027] their arrival, in a free status,¹¹ [here the assise proceeds notwithstanding that
[028] exception.]¹² If an older brother has a son or a daughter, or a grandson or a grand-daughter,
[029] and a younger brother claims by the assise against a stranger on the death
[030] of his middle brother, if a son or the other heirs of the deceased older brother are
[031] produced, or if their existence is established in some way by the jurors, with an oath
[032] or without it, the assise falls.¹³ But if they are not produced, or that they exist cannot
[033] be established, or if the jurors doubt whether they do or not, the assise will then
[034] proceed between the parties. The assise falls if the tenant excepts that the demandant
[035] or another, a

Notes

1. ‘pignori dare’: D. 12.2.13.5

2. Supra ii, 73, 74, iii, 286, 287

3. ‘ita quod’

4. Om: ‘si sine die’

5. Om: ‘et ita creditori,’ redundant

6. Belongs in next section

7. Om: ‘Item non iacet assisa,’ rubric

8. Reading: ‘si nepos dicat quod ipse sit heres legitimus matris suae, sororis ipsius amitae’

9. Not in B.N.B.; infra 308

10. Not in B.N.B.; infra 309

11. Cf. infra 299-300

12. Fleta, v, ca.6: ‘procedat assisa’; infra 299-300

13. Infra 295, 308, 314