Bracton: Thorne Edition: English. Volume 4, Page 44

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Volume 4, Page 44

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[001] or defends himself by the duel. [Thus one proprietary action is changed into another
[002] on the property, but an action on the possession is never changed by the count to an
[003] action on the property, nor conversely.] Since both actions lie for the demandant at
[004] the outset, [if] he first begins to sue by writ of right and counts on his right by descent,
[005] after the descent he may well descend to entry, if the time limitation for proof permits,
[006] by these words: ‘in which he has no entry except through such a one to whom
[007] etc. (as above in full),’ whether it is on his own seisin or another's. Then, as above,
[008] according as the tenant chooses his defence, the matter must proceed, either¹ by writ
[009] of right with everything that belongs to it, essoins and other things,² or according to
[010] the process by writ of entry. ³Sometimes the writ of entry lies, and proof by one's own
[011] sight and hearing, though the time limit of the assise of mortdancestor is exceeded,
[012] which occurs of necessity and for lack of another action, as where one who has only a
[013] free tenement demises for a very long term which exceeds the term of the assise of
[014] mortdancestor, where, that is, he cannot sue by writ of right on the mere right; since
[015] no other remedy lies for him, recourse must of necessity be had to an inquest by a
[016] jury of entry, despite the limitation, because what is not otherwise lawful, necessity
[017] makes lawful, as where one who holds for life in whatever way, or in fee without use
[018] and esplees, demises for a term which exceeds the time limit of the assise of mortdancestor
[019] and survives beyond it for a time which exceeds the term; he is still aided by
[020] the writ of entry and by a jury and the proof of someone's own sight and hearing,
[021] which would not be granted de jure. And that it may so be done is proved [in the roll]
[022] of Hilary term in the eighth year of king Henry in the county of Lincoln, [the case]
[023] of Thomas de Scotenghy⁴ where one who held in the name of dower gave it to
[024] another for a term, whose dower continued for sixty years and more. And she
[025] claimed by writ of entry. From what was said above, it may be inferred that every
[026] writ of entry is not changed into a writ of right, nor in the person of every demandant
[027] by writ of entry, because it lies only for him who may speak of his own seisin or
[028] that of one of his ancestors who died seised thereof as of fee and

Notes

1. ‘sive’

2. Infra 45

3. New paragraph

4. No roll extant. The case in B.N.B. (no. 234) from this year and term and involving T. de S., only illustrates the rule that entry does not lie where the limitation in mortdancestor is exceeded. The name and citation of the dowager's case has apparently fallen out of the text; supra 24 and see B.N.B., no. 947 (Easter 8)