Bracton: Thorne Edition: English. Volume 4, Page 268

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Volume 4, Page 268

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[001] thus cannot be bequeathed. Just as they lie for heirs against debtors not for executors,
[002] so they lie for creditors against heirs, not against executors.

Actions cannot be bequeathed.

[004] That actions cannot be bequeathed, that ecclesiastical judges cannot have cognisance
[005] of them, and that executors cannot claim a debt not acknowledged in the life of the
[006] testator, is proved [in the roll] of Hilary term in the sixth year of king Henry in the
[007] county of Northampton, [the case] of Ralph, parson of Irthlingborough.¹ And that
[008] actions cannot be bequeathed or reckoned among the goods of the testator, especially
[009] where the debt is of long standing, is proved [in the roll] of Easter term in the fifteenth
[010] year of king Henry in the county of Essex, [the case] of Gervase of Aldermannebury.²
[011] To the same effect is a case of Easter term in the sixteenth year of king Henry in the
[012] county of Southampton, that of Engelard de Cigony.³

A prohibition does not lie in a testamentary cause.

[014] A prohibition does not lie in a testamentary cause if chattels are bequeathed and an
[015] action is brought for them in the ecclesiastical forum; nor if houses or buildings in
[016] cities and boroughs, which are the testator's acquisitions, are bequeathed since they
[017] are, so to speak, the testator's chattels.⁴ It is otherwise in some places if they come
[018] through descent, as in the city of London, where a prohibition lies if an action is
[019] brought.⁵ A prohibition does not lie if the usufruct of land is bequeathed, as where
[020] a testator holds for a term of years and bequeaths the usufruct, for a usufruct is
[021] reckoned as a chattel, the tenement remaining unchanged in character as a lay fee.
[022] But when land is so given to another for a term, we must see whether it is given to the
[023] testator only or to the testator and his heirs. If to the testator only, he may give it
[024] in his lifetime or bequeath it at his death without prejudice to his heirs;⁶ if to him
[025] and his⁷ heirs, he may not, unless he gives it in his lifetime, where his heirs are bound
[026] to warrant. And so if he bequeaths it specifically; if he makes no mention of it, the
[027] usufruct passes to his heirs.

If by his own act he is made subject to the other jurisdiction.

[029] A prohibition does not lie where one by his own act and consent is made subject to
[030] the other jurisdiction, [that is, so far as he himself is concerned, but not with respect
[031] to the king, to whom the jurisdiction belongs, in accordance with what was said
[032] above,]

Notes

1. B.N.B., no. 162; supra ii, 181

2. B.N.B., no. 550; C.R.R., xiv, no. 1387

3. B.N.B., no. 684; not in fragments of Easter 16 in C.R.R., xiv, 527-34

4. Infra 273; cf. 282

5. Cf. supra iii, 295

6. ‘heredibus’

7. ‘suis’