Bracton: Thorne Edition: English. Volume 4, Page 163

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Volume 4, Page 163

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[001] the said D. says that he does not wish to answer to the said B. and C. without the
[002] aforesaid A. And have etc. Witness etc.’ If A. does not appear on that day, let B.
[003] and C. proceed as to their part, if they wish. And what is said of one may be said
[004] of several, if they wish to sue. But what of one parcener and co-heir who claims his
[005] portion against his parceners and co-heirs when he has nothing and the others hold
[006] the whole? According as the thing is partible by reason of the thing only or of the
[007] thing and the persons, he may have this writ of purparty against his parceners and
[008] claim his portion, which action is called mixed. Let him thus sue for his portion
[009] because neither the assise of mortdancestor nor any other action lies, only the
[010] action of purparty which determines and divides the right among co-heirs, because
[011] the mere right descends to each of the parceners immediately, in the moment after
[012] the death of the ancestor, which would not be true of other co-heirs, who, though
[013] they are co-heirs, are not capable of inheriting a portion,¹ since the entire mere
[014] right descends only to one of the several when the inheritance does not admit of
[015] partition or division among co-heirs. One is therefore always preferred to all the
[016] others, since he is a nearer heir, for many reasons, as above.² Since in this mixed
[017] action there are several who hold, whether one or several claim, no one of those
[018] who are tenants will answer without the others, because of the contribution. If
[019] there are several who claim against parceners, each ought to claim by himself, not
[020] in common with his parcener demandant, because neither of them claims anything
[021] except his reasonable share.

If a husband and wife claim and one defaults.

[023] If a husband and wife claim the wife's property they cannot be called parceners,
[024] for the reason above, and [thus] the default of one will be prejudicial to both,
[025] whether they hold or claim.³ If they are tenants and the land is taken into the
[026] king's hand for the default of both or one, so that there ought to be a judgment of
[027] default, if the woman says that her husband is dead, though she does not have
[028] proof or suit at hand, the judgment will remain in suspense until the truth is ascertained,
[029] and a day will be given both of them, that the wife may then prove his death
[030] and the demandant that he is alive, as [in the roll] of the eyre of the abbot of
[031] Reading and Martin of Pateshull in the counties of Surrey and Leicester, [the case]
[032] of Hugh son of William.⁴ But why is recourse had to two proofs when one would
[033] suffice? Because when the wife says her husband is dead, from that protestation
[034] only a slight presumption arises, and if it is not at once

Notes

1. C. 6.59.8: ‘portionis capax’

2. Supra ii, 189

3. Supra 84, 96, 128, 142, infra 166

4. Not in B.N.B.