Bracton: Thorne Edition: English. Volume 3, Page 320

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Volume 3, Page 320

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[001] enfeoffs the middle brother, who dies seised thereof without an heir of his body, and
[002] the eldest, or youngest, puts himself in seisin. In the first case, when C. the youngest
[003] of all puts himself in seisin, if A. the eldest brother claims against him by writ of
[004] cosinage or by the assise, the said C. may answer that he is no more bound to answer
[005] to a writ of cosinage than to the assise, because A. and C., the eldest and youngest
[006] brothers, are of the same stock from which the inheritance descends from the father
[007] or other common ancestor, or the middle brother, and that he, C., has as much right
[008] in the aforesaid inheritance, with respect to seisin, as A., [when he has been in long and
[009] peaceful seisin as between those who are present,]¹ since he is a right and near heir
[010] of the ancestor, just as near as A. the eldest brother, and hence, since they are equals
[011] in possessory right, he is unwilling to answer him, because of the equality of right. As
[012] to which, if the eldest brother says he is a nearer heir, [since] no one may be a nearer
[013] heir except by reason of the mere right which descends to him, and neither the assise
[014] nor cosinage can determine the mere right, only the writ of right, of necessity the
[015] assise and cosinage fall. The matter will be determined by writ of right, neither by
[016] the duel nor the grand assise but solely by² count counted,³ [[in which] let him say at
[017] the end and show why the inheritance cannot remain with the eldest, the nearer
[018] heir with respect to the right, because homage has been taken,] in order to ascertain
[019] who is the nearer and consequently the more rightful heir. ⁴<Without prejudice to
[020] any better opinion, it is submitted that a younger brother cannot have the exception
[021] of equality of seisin against an elder brother unless his possession or seisin has been
[022] long and peaceful, had in the presence of the parties, [I say ‘in the presence of the
[023] parties’ because if one who is present dissimulates for a time he prejudices himself by
[024] his silence,⁵ since laws aid the vigilant.⁶ It is otherwise if possession is held during his
[025] absence, when time does not run.] for if it is short or interrupted it is of no value.⁷
[026] Therefore the younger brother cannot say that he has as much right with respect to
[027] seisin as the elder, since his seisin is void or insufficient, [either] short or long but
[028] interrupted. It is only when he has long and peaceful [seisin] in the presence of the
[029] parties, so that he cannot be ejected without writ without being able to recover by the
[030] assise, that he then first has a free tenenement and the assise, and the exception of
[031] equality against his elder brother, so that the elder will not have an action except
[032] by writ of right,⁸ where the casus regis will bar him.⁹ But if, before the younger
[033] brother has such long and peaceful possession,

Notes

1. Supra 313

2. ‘per’

3. Supra 283, 313, infra 321

4. Supra i, 407

5. ‘taciternitatem,’ all MSS

6. Supra 47

7. ‘quia si . . . non valet,’ from lines 24-25; om: ‘nisi . . . praedictum est,’ redundant

8. Supra ii, 188, iii, 248

9. Supra 285