Bracton: Thorne Edition: English. Volume 3, Page 296

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Volume 3, Page 296

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[001] service, only in the tenement. If he seeks a tenement when the tenant has nothing but
[002] service, the answer may be made that he claims nothing in the tenement, only in
[003] service and homage, or in neither, and therefore sine die. On this there is matter
[004] [in the roll] of the eyre of the abbot of Reading and Martin of Pateshull in the county
[005] of Warwick, an assise of mortdancestor [beginning] ‘if William Turpyn.’¹ The assise
[006] also falls if the demandant says that he claims in demesne what the tenant holds in
[007] demesne and in service what he holds in service,² because the demandant must
[008] claim exactly according as his ancestor was seised thereof³ on the day he died, that is,
[009] the whole in demesne, according to the form of the writ.⁴ The assise also falls if the
[010] demandant claims by assise what he lost by judgment, for the assise falls because of
[011] the exception of res judicata; let him sue by writ of false judgment if he wishes. [On
[012] this matter is found in the roll of pleas which follow the king in the twenty-first
[013] year of king Henry in the county of York, an assise of mortdancestor [beginning]
[014] ‘if Stephen of Packthorpe.’]⁵ The assise also falls because of uncertainty,⁶ as where he
[015] who claims is unable to show or point out to the jurors the thing claimed, neither what
[016] or how much he claims, nor where or in what place. [The assise remains because of an
[017] assise taken between the same persons with respect to the same tenement and the
[018] same seisin, because an assise must not be taken upon an assise, as will be explained
[019] more fully below.]⁷ [The assise also falls because of the non-conjoining of several
[020] heirs, who are so to speak a single heir having one right, whether they are demandants
[021] or tenants, if all are not named in the writ, as will be explained more fully below in the
[022] tractate on exceptions.]⁸ [And so] where the jurors do not know him, or if they know
[023] him personally, do not know whether he is an heir or not, or if they know that he is
[024] an heir, not whether he is near or remote, because whenever there is doubt as to
[025] whether a thing exists it is as though it did not exist, and because if the jurors know
[026] nothing or are in doubt they do not prove the demandant's allegation, and thus
[027] proof fails though there is no absence of right.⁹ ¹⁰<But if it may be proved in some way,
[028] as where he was born in some county where the lord king's writ¹¹ runs, let the justices,
[029] by counsel of the court, send to the county in which he was born to inquire
[030] as to the truth, of that article only, and when the truth has been found, let them
[031] proceed¹² [to] judgment, for or against. The writ is as follows: ‘To the sheriff, greeting.
[032] Know that whereas an assise of mortdancestor was summoned etc. (and so the
[033] whole of what was done.)’¹³ [on this there is matter above [in the portion] on the
[034] assise of novel disseisin).]¹⁴ The matter may be handled and the inquest made
[035] without a writ

Notes

1. Selden Soc. vol. 59, no. 555; not in B.N.B.

2. Supra 291

3. Reading: ‘petere per omnia . . . seisitus fuit’

4. Supra 280; Fleta, v, ca.6: ‘quia oportet quemlibet petentem petere eodem modo per omnia, secundum quod antecessor eius inde seisitus obiit, hoc est, totum . . .’

5. B.N.B., no. 1195

6. Infra 300

7. Infra 351

8. Infra iv, 330

9. Supra 186, infra 300; D. 26.2.30

10. Supra i, 404

11. Om: ‘non’

12. ‘procedant’

13. Deleted

14. Supra 140