Bracton: Thorne Edition: English. Volume 3, Page 295

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Volume 3, Page 295

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[001] nearer heir, brought an action against him concerning the same land on another
[002] occasion and then remitted the right.¹ If he did this without an action it makes no difference,
[003] provided it can be proved. [And so] if the tenement remained to him by judgment
[004] or concord. The assise also falls if the order of writs is not observed, as where
[005] one has first sued by writ of right and then wishes to sue by the assise.² Nor does it
[006] lie between an older and a younger brother when the younger is in seisin, nor conversely,
[007] [nor for a younger] on the death of a middle brother where the elder cannot
[008] be heir and lord, since here the writ of right lies not the assise of mortdancestor,³
[009] as [in the roll] of the eyre of the bishop of Durham and Martin of Pateshull in the
[010] county of York in the third year of king Henry, an assise of mortdancestor [beginning]
[011] ‘if Roger de Amundeville.’⁴ The assise does not lie where a tenement in demesne
[012] is claimed by assise from one who has nothing in demesne, only in service,
[013] as [in the roll] of the eyre of the abbot of Reading and Martin of Pateshull in the county
[014] of Hereford, an assise of mortdancestor [beginning] ‘if William Nowell.’⁵ It also
[015] falls because of a confirmation made by one who could nullify and revoke the
[016] gift,⁶ unless the demandant clearly shows that his ancestor, on whose death he
[017] brings the assise, was seised of that land and died seised thereof. The assise also
[018] falls because of local custom, as in cities, boroughs and vills, with respect to lands
[019] and tenements which are acquisitions,⁷ as in the city of London and elsewhere, with respect
[020] to lands and tenements which may be sold as chattels. As to others that descend
[021] hereditarily the assise would well lie, because they cannot be bequeathed any more
[022] than other lands lying outside [the city], as to which the assise lies, nor is the reason
[023] why it should not lie evident. [In truth, it is laid down by the barons of London and
[024] the burgesses of Oxford that one may bequeath as a chattel land inherited as well as
[025] acquired, and thus it is true that in boroughs an assise of mortdancestor does not
[026] lie.] Nor does the assise of mortdancestor or that of novel disseisin lie in the demesnes
[027] of the lord king, because there is no free tenement there but privileged villeinage, nor
[028] does a writ of right lie, because in place of all the little writ according to the custom
[029] of the manor is accepted, or another formulated writ, though it sometimes lies in
[030] parts, as [in the roll] of the eyre of the abbot of Reading and Martin of Pateshull in
[031] the county of Leicester, an assise of mortdancestor [beginning] ‘if Gilbert.’⁸ The
[032] assise also falls if a tenement [or service] is sought by the assise from one who claims
[033] nothing in the tenement, [or] if one claims a tenement in demesne from one who holds
[034] only in service and homage. If he claims part⁹ in service from one who holds the
[035] tenement in demesne, the answer may be made that the tenant claims nothing in

Notes

1. Infra 300, 311

2. Supra ii, 319, infra 300

3. Supra 294, infra 307-8, 314

4. Not in B.N.B.; not in Selden Soc. vol. 56 (see p. xiv); infra 307-8

5. Not in B.N.B.; no roll extant

6. Supra 292

7. Infra iv, 268, 273, 282; P. and M., ii, 330

8. Not in B.N.B.; no roll extant; see B.N.B. no. 1973

9. ‘partem,’ as Fleta, v, ca.6