Bracton: Thorne Edition: English. Volume 4, Page 360

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 360

Next

Go to Volume: Page:

Exception against a demandant [claiming] the mere right by a writ of right, as where the tenant holds for life for some reason.

[002] As said above, a perpetual peremptory exception may lie against the demandant,
[003] against him and his heirs, as where one claims a thing as his right and in fee, and the
[004] tenant says that he himself has the right, as in fee to himself and his heirs forever.
[005] Similarly, the tenant may admit that the demandant has the right and the fee, but
[006] except that he has the free tenement, as where¹ he holds for life in some way, as in
[007] the name of dower or by way of gift, [or] by the law of England,²

By the law of England if he has an offspring who utters a cry which is heard.

[009] as where, whether he has an inheritance or not, a man marries a wife having an inheritance,
[010] or a maritagium, or land by way of gift; if they have children procreated
[011] in lawful wedlock and the wife dies first, her inheritance and land will remain to the
[012] husband for the whole of his life, whether the children are alive or dead, all or some,
[013] provided they have once uttered a cry or a sound heard within the four walls. [And
[014] what is said of a first husband may also be said of a second, if she afterwards marries a
[015] second, whether she has living heirs by her first husband or not,³ whether they are of
[016] full age or minors, which was wrongful according to Stephen of Segrave, especially
[017] when she has heirs by her first husband, though it might be upheld if there were none.
[018] He used to say⁴ that this law was misunderstood and misapplied, because what is
[019] said of the law of England ought to be understood of her first husband and their
[020] common heirs, not of a second, especially when heirs of the first husband were in
[021] existence.] Therefore when one who so holds is impleaded by another and excepts
[022] that he holds for life by the law of England, by reason of a child heard to cry within
[023] the four walls, and the answer is made that no such child was born or uttered a sound,
[024] the tenant must prove the contrary by sufficient suit, who heard the cry, in their own
[025] persons, not through the testimony of others, and who, being carefully examined as
[026] to the day, the place, the hour and the other circumstances, [testify] that he uttered a
[027] cry,⁵ or⁶ that he was baptized and made a christian, which amounts to the same,⁷ as
[028] [in the roll] of the eyre of Martin of Pateshull in the county of Lincoln⁸ in the tenth
[029] year of king Henry, [the case] of William

Notes

1. ‘ut si’

2. Om: ‘et huiusmodi’

3. B.N.B., no. 1182 (coram rege, 1236-37)

4. Segrave died in 1241

5. ‘quod vocem emiserit’

6. ‘vel’

7. Cf. infra 361

8. ‘Lincolniae’