Bracton: Thorne Edition: English. Volume 3, Page 322

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 322

Next

Go to Volume: Page:

[001] may proceed against him. But without prejudice to any better opinion, it is submitted,
[002] in accordance with the last case, that the assise may proceed, especially because
[003] the younger brother, though he says the words of defense for the tenant, is not the
[004] tenant but the defender of the tenant, which may be seen more clearly from what
[005] [follows when] it¹ is said that not the assise but a writ of right lies between them,
[006] because it follows from this that if the assise ought to fall in the person of the younger
[007] brother, since (as some believe) he is the tenant, by the same token an action by
[008] writ of right should rise between them, since it is said that the assise does not lie
[009] between them, only a writ of right. But if a writ of right is impetrated against him it
[010] cannot proceed, because in truth he does not hold. Hence if the assise falls and the
[011] writ of right as well, action fails against the warrantor and the tenant, which ought
[012] not to be. Therefore let the assise proceed, not the writ of right. And also, if the assise
[013] between them ought to fall, and a writ of right of necessity impetrated against the
[014] tenant, it will then be in his election whether to vouch a warrantor or not, for he
[015] cannot be compelled to do so against his will. Thus if the writ of right ought to proceed
[016] between the elder brother demandant and the tenant, it follows that the tenant may
[017] defend himself by the duel or the grand assise, as he wishes, which would be hard on
[018] the demandant with respect to so recent a seisin.> If the eldest brother puts himself in
[019] seisin first, and the youngest claims against him by the assise or cosinage, to that the
[020] eldest may reply that he ought not to answer to that writ, for the reason above,
[021] because by such writ nothing is claimed except seisin, which is joined with the right in
[022] his person, by descent,² and [since] it cannot be separated from the right, since it is
[023] bound to follow the right, the youngest brother must claim both, the right and seisin,
[024] which he cannot do by this writ. Thus recourse must be had to the writ of right which
[025] determines and embraces both. What was said of a younger brother demandant
[026] and an elder brother tenant may be said of an uncle claiming against a nephew and
[027] of a nephew claiming against an uncle, and of other more remote heirs of an older
[028] and a younger brother³ in the right line descending or ascending or the transverse,
[029] that cosinage does not lie between⁴ them since the assise of mortdancestor does not
[030] lie, within its limits, between brothers or sisters, or between an uncle and nephew,
[031] because it does not determine the right.⁵

What the law is if a younger brother and near heir claims against a remote heir, as against a third brother.

[033] It was said that the assise does not lie between a nearer heir and a near, no matter
[034] which of them is tenant and which demandant. We must now see what the law is if
[035] near heir claims against near, where they are equals in possessory right

Notes

1. ‘quod sequitur cum dicitur’

2. ‘per descensum’ for ‘in descensum,’ line 24

3. ‘et de aliis remotioribus heredibus’

4. ‘inter’

5. Supra 252, 269, 283, 284-5, 313, 320; infraiv, 46