Bracton: Thorne Edition: English. Volume 3, Page 324

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Volume 3, Page 324

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[001] To this the demandant may answer that the tenant is not in seisin as heir of the
[002] common ancestor but by his gift, or that of another, [to which the answer may be
[003] made] that the gift is invalid because he never had seisin during the life of the donor,
[004] the donor having died seised thereof as of fee;¹ the writ will then stand and the assise
[005] will fall, but it will be turned into a jury to inquire into the feoffment and the seisin.
[006] Or the answer may be made that he who is in seisin is not a co-heir but a stranger,
[007] though he is a legitimate son, because of the limitation of heirs, because the land was
[008] given in maritagium to the husband with the mother of the demandant and to their
[009] common heirs, and that the tenant, though of the same mother, is [the son] of a second
[010] husband and cannot be a co-heir, [nor an heir], near or remote, because of the
[011] limitation of heirs.² But if the answer made is that the tenant is a bastard or a villein
[012] and thus cannot be an heir, cosinage there falls, as the assise would fall, because that
[013] objection pertains to the right, [because] if he against whom bastardy is objected
[014] can prove himself legitimate, or he against whom villeinage is objected prove himself
[015] free, by that the matter will be determined, both on the right and on the possession,³
[016] which cannot be done by a writ of cosinage any more than by the assise,
[017] which is not so in the cases above.⁴<If one proves himself legitimate or free in a possessory
[018] action, he does not thereby prove himself a nearer heir; that is why recourse must
[019] be had to a writ of right since that touches the mere right.>⁵ He may also say that the
[020] ancestor did not die seised as of fee, or if he died so seised that he who claims by writ of
[021] cosinage is not in such a degree or line of descent that anything may descend to him,
[022] by reason of any nearness of kinship, because [he is descended from] a younger
[023] brother of that ancestor. To put it briefly, almost all the exceptions which lie against
[024] the assise of mortdancestor lie against the writ of cosinage, since it partakes of the
[025] nature of the assise. As in the assise, several persons as well as one may claim by writ
[026] of cosinage, and against several just as against one. The assise may be joined with
[027] cosinage and [both] determined by a single writ, as where one sister claims on the
[028] death and seisin of her father or mother, and a grandson or granddaughter by another
[029] sister on the death⁶ of his grandfather or greatgrandfather or beyond. As where it is
[030] said ‘if A. the father (or ‘mother’) of B. and grandfather (or ‘grandmother’) of C. (or
[031] ‘the greatgrandfather’ or ‘greatgrandmother of C.’) whose heirs B. and C. are,
[032] was seised in his demesne as of fee etc.’ (The form of the writ [is] as above, at the
[033] beginning.)⁷ The manner of proceeding by this writ and the exceptions to be made
[034] against it may easily be drawn from what has been said. Now we must see whether by
[035] the narratio a writ of cosinage may be turned into

Notes

1. Supra 282

2. Supra 285, 310, 312

3. ‘possessione’; cf. supra 316

4. Supra i, 407

5. Supra 283, 312

6. ‘morte’

7. Supra 250, 251