Bracton: Thorne Edition: English. Volume 3, Page 311

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Volume 3, Page 311

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[001] who was taken as heir and was seised of the same land, and afterwards sold it to the
[002] tenant, as [in the roll] of the last eyre of Martin of Pateshull in the county of Suffolk,
[003] an assise of mortdancestor [beginning], ‘if Walter le Curteys.’¹ If the replication is
[004] made by the demandant that he who was supposed to have made the gift was never
[005] in seisin of the land, or if he was in seisin² and made the gift, that the donee never had
[006] seisin in the lifetime of the donor, or some other such replication, [that] the ancestor
[007] acknowledged, or remitted and quitclaimed,³ [or that] the children of him who claims
[008] to hold by the law of England have been proved bastards,⁴ [or] if a question of age or
[009] status [is raised], or an agreement or condition,⁵ a fine levied, resjudicata or something
[010] of the sort [is alleged], which arise outside the assise, and there is a disagreement
[011] between the parties, where the tenant says one thing and the demandant the contrary,
[012] the assise is turned into a jury by consent of the parties and the matter so
[013] determined. Let these suffice by way of example. An assise of mortdancestor is
[014] sometimes turned into a jury because of a supposititious child, as where, when the
[015] true heir is in possession, a supposititious child, that is, a male or a female who claims⁶
[016] to be the heir though he is not, brings the assise against the true heir; and so because
[017] of a child born in adultery, as where, while the husband is on business in distant
[018] parts, or is so beset by illness that he cannot beget children, someone has access to
[019] his wife by whom she becomes pregnant. If the husband removes such child immediately
[020] it is born and disavows it,⁷ an exception against the assise will arise for
[021] the true heir, but if he has avowed it, and there is some presumption that the child
[022] could be his, though in truth it is not, as where husband and wife have been together,
[023] he will then be adjudged heir though he is not. But if the husband's avowal and admission
[024] cannot be reconciled with nature, that is, if he has been absent for a year or
[025] two and on his return finds his wife with a young child, or if he has in fact been castrated
[026] or is so infirm that he cannot beget, though he avows the child the truth must
[027] be preferred to an admission which cannot be reconciled with nature or reason,⁸
[028] [and an exception will arise for the true heir], which is true according to some, though
[029] some say that he ought to have a writ of right.

The persons between whom an assise of mortdancestor does not lie.

[031] Between what persons and on the death of what persons the assise of mortdancestor
[032] lies was explained above.⁹ Now we must say something of those between whom it
[033] does not lie, lest the proprietas be determined by the assise, which lies only in a
[034] possessory action. It is clear that it does not lie between related persons, as between
[035] co-heirs, whether they are parceners, that is,

Notes

1. B.N.B., no. 1927

2. ‘seisina’

3. Supra 257, 292, 295, 300

4. Supra 293

5. ‘condicio’

6. ‘fecerit,’ and singular throughout

7. Supra ii, 187

8. Supra ii, 186, 204, infra iv, 299

9. Supra 269, 282