Bracton: Thorne Edition: English. Volume 3, Page 328

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Volume 3, Page 328

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[001] appurtenant to his tenement in¹ such a vill, and of which the aforesaid [B.] his
[002] ancestor, was seised as of fee on the day he died as is said. (And the same may be
[003] used for a rector and any successor.) And have there etc. Witness etc.’

Whether damages are part of the judgment in an assise of mortdancestor.

[005] When the demandant has recovered by the assise, we must see whether damages
[006] are included in the judgment in the assise of mortdancestor. In truth they have not
[007] hitherto been included, but in order to deter the wrongful acts of chief lords they
[008] ought to be, because of the waste and destruction.² But we must see whether it is
[009] the chief lord who commits the waste and destruction or another, one who has intruded
[010] himself, [and if the latter, whether] he has a title and warrant. If the chief
[011] lord, then it is of importance whether it is done when his tenant, the heir, is within
[012] age and in his wardship or of full age, when the lord has put himself into seisin in
[013] order to have primer seisin. If he is within age and there is someone, a relative or
[014] friend, who brings suit for the waste on behalf of the minor, and the waste is established
[015] by the inquest or by a view, the lord shall amend the waste, that is,³ he will
[016] restore damages, whether he committed it before the prohibition or after, and shall
[017] lose the wardship by judgment, at least for that time, as among the pleas which
[018] followed the king [in the twenty-first year] before William of Ralegh in the county of
[019] Huntingdon, [the case] of John the Dane and the daughter of Ralph de Bray.⁴
[020] But if the heir is of full age and in seisin, and the chief lord puts himself in seisin
[021] with him, by reason of primer seisin, to which he is entitled, and then commits
[022] waste and destruction, the assise of novel disseisin lies for the heir, though he is not
[023] expelled from the tenement, that he may at least enjoy it in peace and hold it freely,
[024] [and] he may have his recovery by the assise with the restitution of damages. For the
[025] lord is granted a simple seisin that he be acknowledged as lord, not waste or destruction.
[026] If the chief lord finds the possession vacant and, when he has put himself in
[027] seisin, maliciously refuses to acknowledge the true heir as heir, in order to have a
[028] better opportunity for committing waste and destruction, and commits waste, and
[029] the heir aids himself by the assise, the chief lord shall restore damages together with
[030] the thing, for he commits a greater offence than if he had committed waste while
[031] the heir was within age.⁵ If the chief lord, while he is in seisin in the name of the heir
[032] in any of the ways aforesaid, enfeoffs another, whether the heir brings the assise of
[033] novel disseisin or mortdancestor damages will always enter into the restitution
[034] together with the thing itself, for the reasons aforesaid.⁶

Notes

1. ‘in’

2. Supra 248, 256

3. ‘scilicet’

4. B.N.B., no. 1201 (coram rege, 1236-7); C.R.R., xv, no. 1928; infra 411

5. Supra 248

6. This belongs to the portion on mortdancestor written later; 1238-9 date of case infra 411