Bracton: Thorne Edition: English. Volume 3, Page 315

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Volume 3, Page 315

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[001] of mortdancestor against the chief lord (that is, the sister's daughter on her uncle's
[002] death and the half-brother's son on the same) and claimed certain land of the seisin
[003] of a certain Ralph, their uncle. The brother's son said that he was the nearer heir
[004] because he was the son of the said Ralph's brother, and that the niece, daughter of
[005] the said Ralph's sister, ought not to be preferred, because he is a male and the heir of a
[006] male and she a female and sprung from a female, and that he was therefore the nearer
[007] heir. To which it was answered on the niece's side that he could not be the nearer heir
[008] because he was the son of the aforesaid Ralph's brother, but his father and the aforesaid
[009] Ralph were not brothers by the same father and mother but by one father and
[010] different mothers, and that her mother, the niece's that is, [and Ralph] were of the
[011] same father and mother, and the land sought was not an inheritance descending
[012] from any ancestor but an acquisition made by the same Ralph. And because this
[013] could not be denied it was decided that the niece was the nearer heir, because she
[014] was born of the full sister of the same Ralph, by the same father and mother, and
[015] the nephew, his brother's son, though male and sprung from a male, was a more
[016] remote heir, because he stemmed from a different mother.¹ Another result will
[017] perhaps be reached in the case of a descending inheritance, according to some.² This
[018] case may be found in the roll of Easter and Trinity terms in the third year of king
[019] Henry in the county of Sussex, an assise of mortdancestor [beginning] ‘if Ralph of
[020] Roche,’ against Gilbert of Aquila.³ ⁴<The same may be said of a descending inheritance
[021] if a brother dies seised; that a sister by the same father and mother is a nearer
[022] heir to her brother's seisin than a male, his brother by the father's second wife; this
[023] by reason of the womb.>

The exception of bastardy in an assise of mortdancestor.

[025] An exception of bastardy raised against a demandant or tenant in an assise of
[026] mortdancestor destroys the assise and either turns it into a jury or transfers cognisance
[027] to court christian, according as it is raised in one way or the other, as will be
[028] explained more fully below [of exceptions, where bastardy is treated,]⁵ and there
[029] more fully as to who may raise it and against whom. But we must see between what
[030] persons it ought to lie in the assise of mortdancestor. It is clear that wherever the
[031] assise lies, between whatever persons, there and between those same persons the
[032] exception of bastardy lies. And also between persons to whom the assise does not
[033] extend, where cosinage lies instead of an assise. But where neither the assise nor
[034] cosinage lies there an exception of bastardy will not lie,

Notes

1. Supra ii, 191

2. Ibid.

3. B.N.B., no. 44; no roll extant; supra ii, 191

4. Supra i, 406

5. Infra iv, 294, 301