Bracton: Thorne Edition: English. Volume 4, Page 32

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Volume 4, Page 32

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[001] it will be otherwise,¹ for then the son will not be the common heir of the father [and
[002] mother] but only of the mother, and he will have a repetitio because he is not bound to
[003] warrant,² as [in the roll] of the eyre in the county of York.>³ If coercion has not been
[004] present,⁴ the making of a chirograph is permitted, for a woman sometimes cares more
[005] for the donee than for herself or her son. It is well to make mention in the enrolment
[006] of the woman's consent, whether it is freely given or coerced, as a precaution. ⁵But in
[007] order that such writ may lie on the husband's gift, we must see whether the husband
[008] or the wife dies first. If the wife, the writ does not lie for the common heirs of the wife
[009] and husband, for if it did [the heir] could impugn and revoke his father's deed, which
[010] he should be bound to defend, since he is his father's heir by virtue of such gift.⁶ But it
[011] seems that it does not suffice to say that, because he is not bound to defend his father's
[012] deed from his mother's inheritance, when no inheritance descends to him from the
[013] father's side, and [thus] he is not the father's heir, only his son, and the mother's heir
[014] because of the inheritance descending from her side, since an heir is called such from
[015] inheritance, not conversely.⁷ If something descends from the father, he is bound
[016] to warrant and defend the father's deed, to the extent of the paternal inheritance,
[017] not beyond, if the mother obtains, whether he is the offspring of a first husband or a
[018] second.⁸ Hence it appears that the writ lies for the heir, as may be seen [in the roll] of
[019] the eyre of the bishop of Durham and Martin of Pateshull in the county of York in
[020] the third year of king Henry, at the end of the roll,⁹ where these words appear ‘and in
[021] which such a one [A.] has no entry except through such a one [B.], the former husband
[022] of such a woman [C.], mother of [D.], whose heir he is, who sold it to him in his lifetime,
[023] and whom, in his lifetime, the aforesaid wife could not gainsay.’ ¹⁰<This writ
[024] lies for the heir if he is of another husband, or¹¹ if the husband has an heir by another
[025] wife, as was shown above by an example.> On the other hand, it appears that this writ
[026] does not lie for him since his mother did not revoke the gift in her lifetime, and therefore,
[027] by dissimulating, granted it, nor does the heir seem to be wronged, since the ancestor,
[028] by dissimulating, condoned the injuria, according to the saying that what did
[029] not harm the ancestor cannot harm the heir. Hence we must see whether the woman
[030] lived for a long time after her husband's death, died immediately thereafter, or in the
[031] life of her husband. But in truth, whatever may be said, this writ does not lie for the
[032] heir¹² because the replication which would lie for the woman had she lived does not
[033] lie for the heir, as may clearly be seen, if

Notes

1. Infra 33

2. Infra 33-4

3. Infra n. 9

4. Om: ‘sed mulier . . . vultum’

5. New paragraph

6. Supra 31

7. Supra ii, 187

8. Supra 31

9. Selden Soc: vol. 56, no. 167; also pp. xv-xvi; not in B.N.B.

10. Supra i, 411

11. ‘vel’

12. Om: ‘sed nec . . . praeteriit’