Bracton: Thorne Edition: English. Volume 3, Page 309

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Volume 3, Page 309

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[001] is established by the assise taken in the manner of a jury, or by the admission of the
[002] children, the assise will remain, as [in the roll] of the last eyre of William of Ralegh
[003] in the county of Buckingham, an assise of mortdancestor [beginning] ‘if Henry
[004] Bussel.’¹ It was objected against a man claiming by an assise of mordancestor that
[005] his father was a villein; the demandant replied that he was free because enfranchised,
[006] and that the land he claimed descended to him from his mother who was free.
[007] Judgment was adjourned to Westminster, where a settlement was made, as [in the
[008] roll] of the last eyre of Martin of Pateshull in the county of Lincoln, an assise of
[009] mortdancestor [beginning], ‘if Lenota,’ concerning a tenement in Weston.² If a man
[010] once acknowledges himself a villein in court, he will always and in every case be
[011] taken as a villein, ³<as [in the roll] of the eyre of Martin of Pateshull, of pleas reserved
[012] for judgment in divers counties, in the third year of king Henry in the county of
[013] Dorset, [the case] of Hamelin, son of Ralph.>⁴ It was objected against a man claiming
[014] by assise [of mortdancestor] that he has⁵ an older brother in parts across the sea;
[015] the jurors are in doubt as to whether he is dead or not; seisin will be granted⁶ the
[016] demandant on the condition that if his older brother returns he is to have his seisin
[017] without plea, as [in the roll] of the eyre of William of Ralegh in the county of Buckingham,
[018] an assise of mortdancestor [beginning], ‘if Richard Faber.’⁷ But suppose
[019] that the younger brother dies before the older returns, leaving an heir within age;
[020] quaere whether his age must be awaited, because of the justices' act? Similarly, if a
[021] sister has seisin of an inheritance from the chief lord when nothing is known of her
[022] brother, whether he is alive or dead, and she dies seised, her heir within age; quaere
[023] whether his age must be awaited if the brother appears, since it has already been
[024] established, as in the case above, that the ancestors of the heirs are not the nearer
[025] heirs of the first ancestors. In truth the age of the heirs must be awaited, since their
[026] ancestors died seised, so to speak, of fee.⁸ ⁹ <But it was decided to the contrary before
[027] the king and his council at Westminster in the forty-second year of king Henry,
[028] [the case] of the heirs of John of Monmouth, that age will not be awaited if the more
[029] rightful heir appears, but this was not by law but by counsel of the court and by
[030] virtue of an admission by the minor's ancestor.>

When an assise of mortdancestor is turned into a jury the writ of assise holds; and when the causa of gift falls into the assise.

[032] An assise of mortdancestor is often turned into a jury, for many reasons, in the same
[033] way as an assise of novel disseisin, as was explained above. Sometimes by the modus
[034] of the gift, as to which a case may be put, [and one] where by the modus of the gift
[035] a female is preferred to a male in the succession.¹⁰

Notes

1. Not in B.N.B.; supra 294

2. Not in B.N.B.

3. Supra i, 406

4. B.N.B., no. 1411 and iii, 722, no. 8; supra 109, infra iv, 310

5. ‘habuerit’

6. ‘concedetur’

7. Not in B.N.B.; supra 246, 297

8. Cf. supra 297

9. Supra i, 406

10. Supra 285