Bracton: Thorne Edition: English. Volume 3, Page 306

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Volume 3, Page 306

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[001] as the inheritance has been divided among the parceners, in which case the writ
[002] need only name those who hold the thing claimed, though they are not bound to
[003] answer without their parceners, who are to be summoned to answer by another
[004] writ ‘and without whom etc.,’¹ just as may be said if one of several parceners claims,
[005] that he ought not to be answered² without the others,³ [or has not been divided],
[006] in which⁴ case unless all who ought to sue are named in the writ, the writ falls, as does
[007] the assise. And so if there are several tenants who hold the undivided whole, if all
[008] are not named the writ falls completely. But what if, when all are named in the writ,
[009] when they hold or claim in common, one dies? Though by the right of accruer the
[010] deceased's part ought to accrue to the survivors,⁵ nevertheless, though they obtain,
[011] the writ falls, because of the deceased's portion, held in common with the others;
[012] since by that the portion of each of them is augmented by a new succession, so to
[013] speak, another action and a new [writ] will be necessary.⁶ The writ ‘of summoning a
[014] parcener’ is given below.⁷

If felony is objected against the demandant.

[016] We have spoken above of the exceptions arising from the clauses of the writ where
[017] the assise is taken in the manner of an assise. Now we must turn to the exceptions
[018] arising from circumstances outside the writ. The objection of felony completely
[019] destroys an assise of mortdancestor, as where the father, mother or other ancestor
[020] on whose death an assise would lie has committed a felony, for such persons, if
[021] convicted, can transmit nothing to their heirs. For they forfeit for their heirs whatever
[022] has fallen to them at the time of the felony, right and seisin, both together or
[023] even the mere right by itself when that falls to them without seisin. Not only what
[024] has fallen to him, but whatever could fall to him from some ancestor, as may clearly
[025] be seen. Suppose that a son and heir commits a felony in the lifetime of his father
[026] and dies during the father's life; though it seems at first sight that the others after
[027] him, the near heirs of the common father, begin to be nearer heirs by his death, not
[028] only because neither right nor seisin could descend to the felon in the lifetime of
[029] their common father, but because he did not survive so as to become heir, [it appears
[030] that such persons begin to be nearer heirs, which is true.]⁸ But if the felon's
[031] son or other heir claims on the death of the grandfather, or the felon's brother on the
[032] death of their common father, [when the felon has children or has survived his
[033] father,]⁹ since neither one of them can be a nearer heir except by reason of the
[034] mere right descending to him, whether he claims by assise of mortdancestor or by
[035] writ of right he will fall from both, since the computation of the descent of the mere
[036] right from the ancestor

Notes

1. Infra iv, 333-4, 336

2. ‘responderi’

3. Infra iv, 337

4. ‘quo’

5. Supra 272

6. Infra iv, 83; cf. iii, 266-7, iv, 227

7. Infra iv, 337

8. Supra ii, 198, iii, 280, 297, iv, 174

9. Supra ii, 367, 377, iii, 297