Bracton: Thorne Edition: English. Volume 4, Page 178

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Volume 4, Page 178

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[001] which is not true of those mentioned above. And so of one naturally deaf and
[002] dumb, if he cannot hear or speak at all, but if he can, though only with difficulty,
[003] the same may be said, that he may¹ acquire and retain and transfer to others, because
[004] such persons may consent, at least by signs and a nod.² ³<But those who are
[005] naturally deaf and dumb cannot acquire seisin, neither by themselves nor by procurators,
[006] nor may they give, nor stipulate anything for themselves, because one who
[007] is dumb cannot say the words of the stipulation nor can a deaf mute hear them,>⁴
[008] <but they may do so by others, as tutors or curators, because by the animus et
[009] corpus of another etc.>⁵ And finally note that the right cannot descend to anyone
[010] whose father or mother or other ancestor, through whom the descent ought to be
[011] made, is alive and well, whether of sound mind or not, whether he remains in the
[012] world or has assumed the habit of religion.⁶ And though his ancestor withdraws himself
[013] and demises the inheritance to his heir, by that the heir will not have an action
[014] based on heredity, [because no] right can descend to him in the lifetime of the ancestor,
[015] as [in the roll] of Hilary term in the seventh year of king Henry.⁷ ⁸<The right may
[016] descend to a felon, after the felony as well as before, and will remain with him and
[017] descend to his heirs until he is convicted⁹ of the felony. But once he is convicted, it
[018] will never descend to his heirs but re-ascend to the chief lords from whom it first
[019] came. The tenement will be the escheat of the lords¹⁰ because it has no other to whom
[020] it may descend, and seisin always follows the mere right.>¹¹

That no right can descend to a donee from the seisin of a donor or his ancestor.

[022] And so if a gift is made by some ancestor named in the descent, [A descent will
[023] never be made to the heir of a donee on the seisin of the ancestor of the donor, as
[024] where it is said ‘And of which such a one, the ancestor, was seised etc. and from him
[025] the right of that land descended to such a one as son and heir, who gave that land
[026] to such a one, the ancestor of the demandant, whence the right descended to him
[027] who now claims as son and heir.’]¹² the gift bars the descent to the demandant.¹³ An
[028] hereditary action is denied him on such descent, for one may give what he has, that
[029] is, seisin and right, but he cannot grant an hereditary action to anyone, where he
[030] must of necessity claim by descent. On this matter may be found [in the roll] of
[031] Hilary term in the seventh year of king Henry in the county of Cambridge, [the
[032] case] of

Notes

1. ‘possit’

2. Supra ii, 52, 286

3. Supra i, 415

4. Inst. 3.19.7: supra ii, 286, infra 309

5. Supra ii, 96

6. ‘in saeculo . . . assumperit,’ from lines 13-14

7. C.R.R., xi, no. 157 (marked on roll); not in B.N.B.

8. Supra i, 415

9. ‘convincatur’

10. ‘Erit tenementum eschaeta dominorum’

11. Supra ii, 188, 367

12. Om: ‘et sic’

13. Om: ‘per quod’; B.N.B., no. 488 (margin)