Bracton: Thorne Edition: English. Volume 3, Page 310

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Volume 3, Page 310

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[001] For example, A. gave land in maritagium with B. his daughter to a certain C. and
[002] the heirs of their two bodies. B. had a daughter, D. by name, by her first husband,
[003] and after his death married a second husband by whom she had a son, by name E.
[004] B. having died and D., her daughter by the first husband being in seisin, E. arraigned
[005] an assise of mortdancestor against the same D. Answer was made on her behalf
[006] that the aforesaid E. could claim no right therein because that land was given in
[007] maritagium to C. her father with B. her mother and the heirs of their two bodies.¹
[008] Answer was made by the other side that it was given in another way, that is, in
[009] maritagium with the same B., their common mother, and the heirs issuing from the
[010] same B. In this case, because they were brother and sister of one and the same mother
[011] though by different fathers, it was decided in the last eyre of Martin of Pateshull in
[012] the county of Suffolk that the assise did not lie between them, but that an inquest
[013] be made by the country, not by the assise, as to the modus of the gift, an assise of
[014] mortdancestor [beginning], ‘if Philippa de Cockfield, mother of Robert.’²

Bastardy falls into the assise.

[016] ³Bastardy also falls into an assise, by which it is turned into a jury, as where an older
[017] brother brings an assise against a younger, son of another father, on the death
[018] of their common mother, or conversely, [the younger against the older], and the
[019] reply is made by the older that he is their mother's first born, though by another
[020] husband, and the replication is made by the younger that he cannot be the heir
[021] since his father never married their common mother. The truth will be declared by an
[022] assise taken in the manner of a jury by consent of both parties, as [in the roll] of the
[023] eyre of Martin of Pateshull in the county of Shropshire.⁴

A question of wardship, whether the tenement for which the assise is arraigned is held in socage or by military service.

[025] The assise is also turned into a jury if one arraigns an assise against his lord and he
[026] answers that he claims nothing except wardship, and the replication is made against
[027] him that he is not entitled to wardship because the tenement is held in socage. If
[028] the lord answers that he and his ancestors had in the past had wardship therein,
[029] inquiry will be made by the assise in the manner of a jury as to both, that is, whether
[030] that land is or is not socage, and if it is socage, then as to the seisin of the lord and his
[031] ancestor.

The exception of sale.

[033] The assise is also turned into a jury because of the exception of sale, as where, [when]
[034] one claims by assise of mortdancestor, it is excepted that the demandant had an
[035] older brother

Notes

1. Supra 283, 285

2. Not in B.N.B.; infra 312

3. Infra 315

4. Not in B.N.B.; Selden Soc. vol. 59, no. 1125; infra 317