Bracton: Thorne Edition: English. Volume 4, Page 301

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 301

Next

Go to Volume: Page:

[001] the position of the possessor is the stronger.¹ Let the chief lord then claim; the exception
[002] will belong to him.

Against whom.

[004] Against whom does it lie? It is clear that it lies against any one, male or female, a
[005] minor or one of full age, provided that if the minor against whom it is raised is the
[006] tenant, the inquest as to bastardy may not proceed until he is of age, because before
[007] his full age he is no more bound to answer an exception of bastardy than an assise,
[008] since an exception of bastardy ends the matter both in possessory and proprietary
[009] actions, as [in the roll] of the eyre of Martin of Pateshull in the county of Kent on the
[010] feast of St. Michael in the eleventh and the beginning of the twelfth years of king
[011] Henry, an assise of mortdancestor [beginning] ‘if William of Herst,’² where the assise
[012] was brought against a guardian who said that he held nothing except in the name of
[013] wardship with one who was under age, who was then alleged to be a bastard. But if
[014] it is put forward by one of full age against a minor-demandant the assise may proceed,
[015] as in the same eyre, an assise of mortdancestor [beginning] ‘if Henry Panfurere,’³ [in
[016] which] bastardy was objected against some of the demandants, as to whom the jurors
[017] said that they were bastards because born before marriage, and the assise of mortdancestor
[018] proceeded in the king's court.

Between what persons.

[020] The exception of bastardy does not lie in a possessory action, [in a plea of cosinage
[021] no more than in an assise of mortdancestor, for ubi eadem ratio ibi idem jus,] between
[022] kinsmen, only between strangers. Between such persons the question is one
[023] of right and not possession, if it is an inheritance descending from a common
[024] stock, [and] if this exception should be good between them the proprietas could be
[025] determined in a possessory plea,⁴ though it could be objected that a bastard is a
[026] stranger with respect to the true heir.⁵ Nevertheless that exception does not lie
[027] between them, no more than does the assise, because it is not yet clear that he
[028] against whom bastardy is objected may not prove himself legitimate.⁶

When it has been raised, with the reason, proof must follow.

[030] Though bastardy has been objected, with the reason specified, it is of no value unless
[031] it is proved. ⁷When the tenant says that the demandant is a bastard and the demandant
[032] replicates that he is legitimate, or conversely, we must see upon

Notes

1. Supra iii, 248, 317; infra 302

2. B.N.B., no. 1775; supra iii, 316

3. B.N.B., no. 1780; supra iii, 317, iv, 297

4. Supra iii, 316

5. Supra iii, 283

6. Supra iii, 283, 312, 316, 324

7. New sentence