Bracton: Thorne Edition: English. Volume 3, Page 319

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Volume 3, Page 319

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[001] entry and a writ of right, at one and the same time, and may choose which of them
[002] he prefers, nor ought he to be compelled to one rather than another, to the writ of
[003] right rather than the assise. If he chooses to sue by the assise of novel disseisin, he
[004] can thus avoid the court of his lord, without injuria to any one,¹ and so of the other
[005] pleas and assises; thus no injuria is done lords of courts if the demandant chooses to
[006] sue by writs other than the writ of right, since he need not use it unless he wishes.
[007] If the time-limit of the assise of mortdancestor has passed, however, the writ of right
[008] will lie, since the demandant cannot then prove seisin by a witness's own sight and
[009] hearing, only by another's, that of a father who saw and instructed his son, that he
[010] might be a witness. The writ of cosinage is this.

The writ of cosinage.

[012] ²‘The king to the sheriff, greeting. Order A. that rightfully and without delay he
[013] restore to B. so much land with the appurtenances in such a vill of which C. the cousin
[014] of B. (or ‘the ancestor, such a one,’ with or without describing the persons as ‘grandson’
[015] or ‘grandfather’) whose heir he is was seised in his demesne³ as of fee on the day
[016] he died, as he [B.] says. And unless he [A.] does so and if [B.] has made you secure as to
[017] [the prosecution of] his claim etc. then summon A. etc. to be [etc.] to show why he
[018] has not done so. Witness etc.’ After essoins, the parties being present in court,
[019] let the demandant put forward and support his⁴ intentio in this way: ‘A. claims against
[020] B. so much land with the appurtenances in such a vill as his right, of which such a
[021] one (by name) his ancestor (or ‘cousin’) whose heir he is (with or without describing
[022] the relationship) was seised in his demesne as offee on the day he died, and from whom
[023] the right in the aforesaid land descended to such a one as son and heir (and so one
[024] after the other, exactly as in the writ of right, as will be explained below,)⁵ to him
[025] who claims.’ And that such is his right and that such an ancestor was so seised let
[026] him offer etc.

The answer to such a writ.

[028] ‘And B. comes and defends his right etc. and says that he ought not answer to this
[029] writ because he, the tenant, and the demandant are of the same stock from which the
[030] inheritance sought descends, so that the writ of cosinage does not lie between them
[031] any more than the assise.’ But we must see the reason why. A case may be put in
[032] the persons of three brothers and in several different ways, as where the common
[033] father or other ancestor dies seised of an inheritance and the youngest puts himself
[034] in seisin of the whole, though it is not partible, or where the father or other common
[035] ancestor, or the elder brother, or a stranger,

Notes

1. ‘Om: ‘ad . . . recto’

2. Conceded by the magnates and drafted by Ralegh in 1237: B.N.B., no. 1215

3. ‘dominico’

4. ‘suam’

5. Infra iv, 169