Bracton: Thorne Edition: English. Volume 3, Page 300

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Volume 3, Page 300

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[001] the potestas of his lord and in a free status, and being claimed in servitude has sued
[002] out a writ of peace and died before the eyre of the justices.¹ If he sues out a writ of
[003] peace while within the potestas of his lord it is valueless, unless a claim by writ de
[004] nativis precedes² it.> The assise sometimes falls because of uncertainty,³ as where the
[005] tenant says that he does not hold all the land and the jurors, questioned under oath
[006] or without it, say that they do not know, as [in the roll] of the eyre of William of
[007] Ralegh in the county of Northampton, [an assise of mortdancestor beginning] ‘if
[008] William of Camera.’⁴ It also falls because of the tenant's defect of nature or sense, as
[009] where he cannot hear or speak at all, as where he is deaf or dumb from birth so that
[010] he can neither hear nor speak, though that is not true of one who is hard of hearing or
[011] speaks with difficulty,⁵ as [in the roll] of the eyre of William of Ralegh in the county
[012] of Northampton, an assise of mortdancestor between Ralph Basset and Thomas of
[013] Pictesleghe.⁶ But if the deafness is accidental, the assise does not fall but must be
[014] postponed until the tenant's condition is improved. And what is said of the deaf and
[015] dumb may be said of the insane, according as he enjoys lucid intervals. The assise
[016] also falls because of the continuing seisin of the donor, for example,⁷ a father gave a
[017] son land and they remained in seisin together, the son dies in the lifetime of his
[018] father, leaving an heir. If the heir claims by the assise it is of no effect, because of the
[019] continued seisin of the father, which he retained corpore and animo, as [in the roll]
[020] of the last eyre of Martin of Pateshull in the county of Suffolk, an assise of mortdancestor
[021] [beginning] ‘if Roger Batayle.’⁸ If the father dies first the heir will recover
[022] by the assise, because of his father's seisin continued to the time of his death. The
[023] assise also falls because of right and aenescia, as where the deceased, the older
[024] brother of the demandant, leaves a son surviving, or who may be shown to be surviving
[025] by the jurors, with or without an oath. But if neither of these can be shown,
[026] or if the jurors are in doubt whether it is so or not, the assise will then proceed between
[027] those who are present.⁹ The assise falls if the tenant excepts that the demandant
[028] or some other nearer heir brought an action against him at another time for the
[029] same land, and that it then remained to him by judgment, or the duel, or the grand
[030] assise, or by fine levied, by acknowledgment, quitclaim, or in some other way which
[031] can be proved by the assise taken in the manner of a jury.¹⁰ The assise also falls
[032] because the order of suing writs is not observed,¹¹ as where the demandant has
[033] earlier impleaded the tenant by writ of right or entry, so that a view was sought or a
[034] warrantor vouched, as [in the roll] of the eyre of William of Ralegh in

Notes

1. Supra 294

2. ‘praecedat’; supra 88

3. Supra 141, 296

4. Not in B.N.B.; supra 281

5. Infraiv, 309

6. Not in B.N.B.

7. ‘verbi’

8. Not in B.N.B.

9. Supra 296, infra 309

10. Supra 295, infra 311

11. Supra 295