Bracton: Thorne Edition: English. Volume 2, Page 193

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Volume 2, Page 193

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[001] His seisin is not on that account to be taken from him but it will remain to him
[002] and his heirs forever. Conversely, if at the outset the eldest has children who begin
[003] an action and die while the plea is pending, an action will at once begin to lie for
[004] the middle brother, as it would ab initio if there had been no children. And the same
[005] right that belongs to the middle brother belongs to his heirs ad infinitum. Suppose
[006] that after he has acquired seisin the middle brother dies without an heir of his
[007] body? Then we must say of him what was said of the younger brother, that is, that
[008] the eldest brother is his nearer heir. But what if [both the middle and the youngest]
[009] brothers die without heirs [of their bodies], as aforesaid, and the eldest brother has
[010] no children? Then more remote heirs must be called. And what if no heirs at all
[011] appear who may claim? Seisin may then remain with the eldest despite the homage,
[012] for though an action is available and right is not lacking proof fails, since there is
[013] no one who claims.¹ Suppose the middle brother acquires an estate [from his father
[014] or eldest brother] and dies without an heir of his body and the chief lord or a
[015] stranger puts himself into seisin; despite the homage the assise of mortdancestor
[016] still lies for the eldest brother, not for the youngest. When he has recovered by the
[017] assise, an action by writ² of right then first lies either for his children or for his
[018] youngest brother, as above,³ not so that by such the plea may proceed⁴ to the
[019] grand assise or the duel, but that a computation may be made of proximity and
[020] of the parentela. But what if the youngest son first has peaceful seisin and time, so
[021] that he cannot be ejected without writ and judgment? An action by writ of right
[022] then lies for the eldest brother, or for his heirs if he is dead, to ascertain by computation
[023] which of the two is the nearer heir. But when that has been established the
[024] youngest, it is submitted, is not to be ejected by the judgment, for if it is clear that
[025] the eldest is the [middle brother's] nearer heir, nevertheless, because of the
[026] homage, it must be decided in the same action that the youngest remain in seisin,
[027] since seisin cannot remain with the eldest because of the homage; nor will another
[028] action⁵ by writ of right be necessary, for⁶ on the same right and between the same
[029] persons there may no more be an action on an action than an assise on an assise. But
[030] [what if] the eldest brother desired from the first to eject his youngest brother, before
[031] the passage of time, but could not and at once sued by assise of mortdancestor,
[032] before the youngest could have a free tenement through time? If the eldest should
[033] prevail by the assise, in possessory right and in a possessory action, an action on the
[034] proprietary right would follow by the youngest, unless one says the youngest may
[035] defend himself against

Notes

1. Supra 83, 192, infra iii, 314

2. ‘breve’

3. Supra 192

4. ‘placitum procedat’

5. ‘alia actio’

6. ‘quia’