Bracton: Thorne Edition: English. Volume 4, Page 339

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Volume 4, Page 339

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[001] himself to religion and so is civilly dead, it must be established by the bishop's letters
[002] whether he may return to the world or not, according as he has assumed the habit of
[003] probation or profession. On this matter may be found [in the roll] of Trinity term in
[004] the fourth year of king Henry in the county of Somerset,¹ [the case] of John de
[005] Briwes.² Suppose that the parcener is in prison so that he cannot come, [or] is incapacitated
[006] by an infirmity, or has been captured by enemies; he must be named
[007] nevertheless, and when named the case must stand over until he is able to come. But
[008] if a named parcener is imprisoned for felony for which he is in danger of losing life³
[009] or members, let the plea remain without a day until it is known whether he is delivered
[010] or condemned, as in the eyre of William of Ralegh in the county of Bedford, [the
[011] case] of Juliana de Noers.⁴ The plea is suspended, and the writ, if one of the parceners
[012] is under age, until he comes of age.

If a parcener is deaf or dumb.

[014] But what shall we say or a parcener who has been born deaf and dumb?⁵ It is evident
[015] that he must always be regarded as one who is neither an heir nor a parcener. Therefore
[016] whether he is named or not, neither the action nor the writ falls; it is good, both
[017] as to the demandant and the tenant, as against all the others. But if the deafness
[018] arises from an accident or if he is dumb and deafness does not ensue, a period of time
[019] must be awaited if there is hope of recovery. As to one conjoined, and the consent of
[020] a superior, what ought to be done in the person of the tenant may be drawn from what
[021] has been said above as to the person of the demandant. [And note that though some
[022] are named who are heirs but are incapable of inheriting, or are complete strangers,
[023] the writ does not fall on that account, but will stand in the persons of the others who
[024] have right, because in this case the useful is not vitiated by the useless. Note also that
[025] several parceners may claim to hold in common of several who hold separately and
[026] are in no way connected; there will then be several actions because of the several persons.
[027] Conversely, several who are not parceners, whose rights are separate, may claim
[028] against several co-heir parceners; there will here also be several different actions.

Notes

1. ‘Somersetiae’

2. C.R.R., viii, 388-90 (Easter 4); not in B.N.B.

3. ‘vitae’

4. Not in B.N.B.

5. Supra 309