Bracton: Thorne Edition: English. Volume 3, Page 284

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Volume 3, Page 284

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[001] more remote in the transverse line, but also their [sons and daughters], greatgrandsons
[002] and greatgranddaughters, and all others descending from them. But if it is
[003] the uncle who is first in possession of the inheritance, by intrusion or in some other
[004] way, and the grandson claims against him on his father's seisin, or by descent from
[005] his grandfather, not the assise but only the writ of right will lie, by which, though
[006] it is found by the narration that the grandson is the nearer and more rightful heir,
[007] because of the advantage of the right, he nevertheless may take nothing by the
[008] judgment because of the casus regis,¹ which has so far stood to the contrary, and the
[009] judgment will remain in suspense until (if the parties so wish) the dispute is settled
[010] by agreement. [But what] if nephew and uncle, within the potestas of the same²
[011] ancestor, are both found on the hearth at the time of his death? In that case, since
[012] both³ are found in the ancestral hall or hearth, it is evident that each has a free tenement
[013] immediately, since each is a right and near heir, but he ought to be preferred
[014] who has the advantage of the right and the property, and of the right line which
[015] excludes the transverse, that is, the grandson, because in his person the right and the
[016] property are conjoined with seisin,⁴ which is not so in the person of the uncle, because
[017] he has only what pertains to possession not to right. Hence if he is ejected by the
[018] nephew he will not recover by an assise of novel disseisin, not only because of the
[019] advantage of right in the nephew, but because he did not have vacant seisin. If the
[020] uncle ejects the nephew, the nephew will recover by the assise. And so if the nephew
[021] is in seisin at the time of the death and the uncle, when he is out of seisin, ejects him.
[022] Conversely, if the uncle is in seisin, and the nephew out of seisin ejects the uncle, the
[023] uncle will recover by the assise, [if he has been in peaceful seisin for a long time,
[024] otherwise⁵ not, as below,] saving to the nephew his right on the property. But if
[025] both are out of seisin at the time of the ancestor's death, and thus neither on the
[026] hearth, the possession is then either vacant or the chief lord, the king or another, is
[027] in possession. If it is vacant, we must then see which of them first puts himself into
[028] seisin. If it is the nephew, he immediately has a free tenement, for the reason aforesaid,
[029] and if he is ejected by his uncle he will recover by the assise. If the uncle puts himself
[030] into seisin first and is immediately and quickly ejected by the nephew, he will not
[031] recover against the nephew by the assise, though he will against others. But if he
[032] has time [in possession] through the negligence or weakness of the nephew, since his
[033] seisin takes substance through time, if he is then ejected by the nephew he will
[034] recover by the assise, because ejected without judgment, though rightfully. If
[035] seisin is not vacant, when the chief lord is in seisin [neither] may put himself into
[036] seisin without his consent. We must then see, which

Notes

1. Supra ii, 190, infra iv, 46

2. ‘eiusdem’

3. ‘Et quo casu cum ambo’

4. Supra ii, 123, 124, 134, 185, iii, 251

5. ‘alioquin’