Bracton: Thorne Edition: English. Volume 4, Page 302

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Bracton Online -- English

Volume 4, Page 302

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[001] which of them the proof of bastardy or legitimacy falls. It seems that it will always
[002] fall to him who is out of seisin, since he who is in seisin has no need to prove, neither
[003] the exception, if he excepts bastardy, or the replication of legitimacy if bastardy is
[004] objected against him, because of the advantage of possession,¹ because when a
[005] tenant raises the exception of bastardy against a demandant [the demandant will be
[006] forced to the proof of legitimacy, [not] the tenant to the proof of bastardy]² by excepting,
[007] the demandant must show that he is legitimate by replicating, otherwise his
[008] case will fall and possession remain with the tenant. Conversely, if bastardy is objected
[009] against the tenant by the demandant, that he has no right in the land he holds
[010] because he is a bastard, he may be answered that he, the tenant, is in seisin as lawful
[011] heir, whereupon the demandant must replicate that he is a bastard, and so by replicating
[012] prove the bastardy, and so the demandant must sue [to prove bastardy] because
[013] the tenant would never sue [to prove legitimacy]. Thus in both cases proof of
[014] the replication falls upon the demandant, either to prove that he is legitimate, as in
[015] the first case, or that the tenant is a bastard, as in the second.

An enquiry as to bastardy is sent to court christian by writ.

[017] When, in the proper circumstances, a plea is to be transmitted to court christian,
[018] [when] that is permissible and proper, because³ cognisance and the enquiry as to
[019] bastardy ought to be made in court christian, let a writ then issue to the ordinary of
[020] the place, in this form, [if the ordinary is within the realm [and] under⁴ the king's
[021] potestas. If he is outside the realm and not under the king's potestas, [since] he is not
[022] bound to obey unless he wishes, and may not enquire unless the matter is entrusted
[023] to him by the king,⁵ the demandant's action may fall for lack of proof.] [And note
[024] that before the plea and enquiry as to bastardy is sent to court christian, the view must
[025] be made of the land claimed, because, since the whole cause is decided by the enquiry
[026] so made, and nothing remains after the inquest except to give judgment in the king's
[027] court, it would be preposterously done if the view were then first claimed. Let the
[028] view therefore he made first, that the justice may give a judgment certain as to a
[029] thing certain. When the enquiry has been returned by

Notes

1. Supra iii, 317

2. Om: ‘procedat’

3. ‘quia’

4. ‘infra regnum et sub’

5. ‘ex parte regis,’ from line 21; supra 260