Bracton: Thorne Edition: English. Volume 3, Page 318

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Volume 3, Page 318

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OF COSINAGE

Of cosinage.

[003] Since the assise of mortdancestor is applicable only within certain degrees of kinship,
[004] and lies on the death of certain persons against certain persons, and is not extended
[005] beyond them, in order that recourse need not always be had to the right by writ of
[006] right on a seisin which can be proved by a witness's own sight and hearing, a writ
[007] called the writ of cosinage is provided as a supplement to the assise of mortdancestor,
[008] to determine the possession, with respect to everything of which the ancestor died
[009] seised as of fee, [not as of right, for here only possession is in question,] in degrees of
[010] kinship and with respect to persons to whom the assise does not extend, in order to
[011] avoid, to the extent that the time-limit of the assise of mortdancestor permits, the
[012] uncertain outcome of the duel and the grand assise by writ of right. And since it
[013] ought to take the place of mortdancestor and to be held on an ancestor's seisin, it
[014] ought properly to follow in large part the nature of the assise in whose stead it is
[015] brought, in the first place, with respect to time, that it not exceed the time-limit
[016] or term of the assise; in the second, with respect to persons, that it apply beyond
[017] the terms of the assise [but] between the same persons, adults or minors, between
[018] whom the assise lies within its limits, not between others, as between kinsmen, as
[019] said above, by ascending from a grandfather to a greatgrandfather's greatgrandfather,
[020] and beyond if the time limit of the action permits, who may all properly be
[021] called ancestors in the manner of an assise of mortdancestor, or descending from a
[022] grandson to a greatgrandson's greatgrandson and beyond, provided the time limit
[023] is not exceeded, who may all properly be called cousins,¹ unless one² says that all
[024] are cousins, ascendants and descendants. Nor ought what some say to be an objection,
[025] that by this writ, which opens with the word ‘praecipe,’ lords of courts lose
[026] their court, which, as they say, is contrary to the common liberty³ and may [not] be.
[027] But in fact it is not true that demandants, because of the seisin of ancestors, must
[028] always resort to the court of their lords, for if several actions lie for a man, he may
[029] choose one, whichever he wishes, and sue it. For one may be entitled to an assise of
[030] novel disseisin and of mortdancestor, a writ of

Notes

1. Supra 251

2. ‘sit’ for ‘si,’ all MSS

3. Magna Carta (1215) ca.34; (1225) ca.24, Selden Soc. vol. 60, p. xxiv, n.