Bracton: Thorne Edition: English. Volume 3, Page 371

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Volume 3, Page 371

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[001] profession, the action of dower is suspended until the truth is established by the
[002] ordinary of the place, namely, the bishop, abbot, or another. If the woman alleges
[003] natural death, and the answer is made that he is alive, we must see upon whom the
[004] burden of proof falls. It is clear that sometimes it will be on the woman who says
[005] he is dead, because one who asserts must prove, and sometimes on the tenant who
[006] excepts that he is alive, because by excepting he becomes the actor,¹ so to speak,
[007] and ought to prove his exception as the woman her action. And that proof of the
[008] husband's death is sometimes imposed on the woman who asserts it, may be seen
[009] [in the roll] of Michaelmas term in the ninth and the beginning of the tenth years of
[010] king Henry in the county of Essex, [the case] of Ascelina the wife of Alan the son of
[011] Juliana,² where the woman was given a day to make her proof and the tenant who
[012] excepted that he was living was not burdened with the proof.³ Sometimes proof
[013] is imposed upon them both, on the woman demandant as well as on the tenant,
[014] and a day will be given them both, that the woman may prove him dead and the
[015] tenant that he is alive.⁴ If on the day given her the woman demandant produces
[016] sufficient suit that her husband is dead, that is, those who were present where he
[017] died, at such a place, and was buried, at such a church, and [if] on examination the
[018] suit agrees in every particular, let the tenant then first answer the woman-plaintiff
[019] as to her dower, unless the tenant in his own support produces a weightier suit in
[020] proof of the fact that the husband is alive, in which case the more valid proof is to
[021] be preferred.⁵ If the woman's proof is the more valid, let the tenant then first answer
[022] her action. But why does she not recover at once? Apparently for this reason,
[023] because it may well be that [though] her husband is dead, that she has no right to
[024] her claim; therefore she is required to show her right. And that this is so may be
[025] seen in the second roll after the war, [a case] of Trinity term in the county of Sussex,
[026] [that] of Maria de Gremmesham.⁶ But what if on the day given them one has sufficient
[027] proof and the other none? Judgment will be given for him who has the proof.
[028] If there is proof on neither side but only a presumption by virtue of half proof,
[029] the woman will then recover the dower sought, unless some other exception bars
[030] her. But only subject to this condition, sufficient security by sureties having been
[031] furnished, that if her husband reappears she will restore the dower to the tenant,
[032] without plea, with the fruits taken in the meantime; otherwise let the tenant remain
[033] in his seisin. And that this is so may be seen [in the roll] of Hilary term in the fifteenth
[034] year

Notes

1. D. 44.1.1; infra 386

2. C.R.R., xii, no. 989; not in B.N.B.

3. Hall in E.H.R., lxxiv, 108

4. B.N.B., no. 545; infra 379

5. Infra 407

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