Bracton: Thorne Edition: English. Volume 3, Page 248

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Volume 3, Page 248

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[001] against such persons after they have had long and peaceful seisin, since all descend
[002] from one stock, from the person who last died seised of the aforesaid inheritance; but
[003] a writ of right will lie as will appear below in the tractate on cosinage.¹ But if the true
[004] heir cannot eject such persons immediately, if he sues at once the assise of mortdancestor
[005] will well lie between them, because by diligent impetration their possession
[006] is so interrupted that they cannot have a free tenement, and thus cannot be the
[007] equals of the nearer heir with respect to the right of possession, [that is], before they
[008] have acquired a free tenement through time and long possession, though they may
[009] be when they have such possession.² Suppose that in the absence of the chief lord
[010] one bastard brother finds another such in seisin; if he ejects him we must see whether
[011] he ought to recover by the assise notwithstanding the exception of bastardy.³
[012] [It is submitted that he may] because the exception, if put forward, will not lie, for
[013] though the disseisee is a bastard, the exception is not available to the disseisor
[014] since he is himself a bastard, particularly because of the odium connected with
[015] disseisin. And⁴ when it is established by the assise that each is a bastard, the bastardy
[016] of one balancing that of the other, the position of the first possessor will be the stronger,
[017] especially if he has his right and authority⁵ from the chief lord. When the chief
[018] lord has first seisin and vacant seisin and one out of seisin claims to be heir, if the
[019] chief lord acknowledges him as heir and he is of full age, let the chief lord take his
[020] homage at once and restore the inheritance to him,⁶ taking security for his relief and
[021] fealty and an oath for the performance of the services due him from the aforesaid
[022] inheritance. If he is within age, let the lord take his homage at once, before all else,
[023] and only then let him have wardship and marriage.⁷ If the lord does not acknowledge
[024] him as heir, whether he is of full age or within age, the assise of mortdancestor will
[025] then lie against the chief lord, as against any stranger, and [in such a way that if,
[026] while the chief lord has primer seisin and there is no doubt as to the heir, he maliciously
[027] delays [giving] seisin and commits waste and destruction, he restore damages
[028] in addition to the tenement, as in the assise of novel disseisin, though that is not the
[029] practice, in order to repress the wickedness of lords, who through their primer seisin
[030] convert inheritances to their own use,⁸ as may be seen in [the case of] a guardian

Notes

1. Infra 269, 320

2. Supra ii, 188, infra 320-21

3. ‘bastardiae’

4. ‘Et’

5. ‘auctoritatem,’ all MSS

6. Glanvill ix, 1

7. Glanvill, ix, 4; Magna Carta (1225) ca.3

8. ‘in proprias usus’; infra 328