Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 297  Next    

Go to Volume:      Page:    

[001] if the justices themselves come to that county.>1<It is clear that the first jurors who
[002] have no knowledge neither give nor take away.>2 If the jurors say that they believe
[003] the demandant has an older brother in parts beyond the sea but do not know whether
[004] he is dead or alive, but say clearly that if he is dead the demandant would be the
[005] nearer heir, the judge acting ex officio may give seisin to the demandant, subject to
[006] the condition that if the older brother returns alive the younger brother who claims
[007] shall restore his seisin to him on his return without plea;3 thus the younger brother's
[008] seisin will be in suspense until his older brother's death is confirmed. On this there is
[009] matter [in the roll] of the eyre of William of Ralegh in the county of Buckingham,
[010] an assise of mortdancestor [beginning] ‘If Richard Faber.’4 And what if the younger
[011] brother dies so seised leaving heirs within age and the older brother then returns?
[012] Or if the heirs are of full age? Quaere whether they may be ejected without judgment.
[013] It is evident that they well may be, because their father who died seised had no fee,
[014] only a conditional fee during the lifetime of his older brother.5

If felony has been objected.

[016] The assise falls because of felony objected and proved,6 as where the ancestor whose
[017] seisin is claimed, or he who claims by the assise, or an intervening heir who has
[018] survived the ancestor, [has been convicted of felony], 7<because the mere right
[019] reverts to the chieflord, since he takes the place of the heir,8 and therefore no one can
[020] be the nearer heir, though he may be a near heir as to seisin, because the mere right
[021] descends to none,> or if, though not convicted of felony, he has been outlawed for
[022] contumacy,9 [even] if he is restored to the peace.10 And though he commits felony,
[023] [if] he dies before conviction, perhaps before the death of the father or other ancestor
[024] on whose death [the demandant] brings the assise, the assise will proceed11 and not
[025] remain.12

If two claim by the assise against one.

[027] If two claim one and the same tenement against the same person by the assise,
[028] [one] is deferred, because no one ought to answer for the same tenement to two persons
[029] at the same time. Recourse must be had to the last seisin and [the assise on] the
[030] first postponed to the taking of the second,13 whether they claim on the seisin of one
[031] ancestor or two. If on the seisin of two, the assise on the seisin of him who last died
[032] seised ought to proceed first, as [in the roll] of the eyre of the abbot of Reading [and
[033] Martin of Pateshull] in the county of Hereford in the fifth and the beginning of the
[034] sixth years of king Henry, an assise of mortdancestor [beginning] ‘if Laurence
[035] Galant.’14 The assise also falls because


1. New sentence: falls on 296 supra

2. Addicio following transposed infra n. 7

3. Supra 246, infra 309

4. Not in B.N.B.; infra 309

5. Cf. infra 309

6. Infra 305, 306

7. Supra n. 2

8. Supra ii, 195, iii, 280

9. Supra ii, 375

10. Om: ‘cadit assisa,’ redundant

11. ‘procedet,’ all MSS

12. Infra 306

13. Supra 271

14. Not in B.N.B.; no roll extant

Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College