Bracton: Thorne Edition: English. Volume 4, Page 23

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Volume 4, Page 23

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[001] supports it and is prepared to prove it by the country, it is still in the election of the
[002] tenant whether he wishes to put himself on a jury with respect to such entry or not,
[003] since he has three remedies, namely, defending himself by the duel, or putting himself
[004] on the grand assise on the right, or on a jury as to the entry.¹ Since it is in the
[005] tenant's discretion to elect whichever of these he wishes, the writ of right will not
[006] become a writ of entry until the tenant elects to defend himself by a jury against the
[007] entry, as where by a writ of right an abbot, prior or another claims land against someone
[008] as the right of his church, and adds at the end this clause, ‘and in which he has no
[009] entry except through such a one, his predecessor, who demised that land to him for a
[010] term etc.’ or if someone claims land as his right by a writ of right² [and adds] ‘and in
[011] which he has no entry except through such a one, who was the wife of such a one, who
[012] held that land in dower of the gift of such a one whose heir the demandant is.’ Though
[013] the time limit of the writ of entry allows it, the writ of right is not thereby turned into
[014] a writ of entry, but will continue in the same status unless the tenant willingly puts
[015] himself on a jury of entry. Sometimes, conversely, a writ of entry is turned into a writ
[016] of right by the narratio of necessity and not by consent, sometimes because of a very
[017] distant entry, sometimes because of the gift and feoffment: because of a very distant
[018] entry which cannot be proved by a witness's own sight and³ hearing but that of another,
[019] as the sight and hearing of a father who instructed his son, in which case because
[020] of necessity and the lack of other proof the tenant must put himself on the grand
[021] assise or defend by the duel, [A distant entry, as where it is from the time of king
[022] Henry the grandfather [of the lord king] or later, up to the time limit in the assise of
[023] mortdancestor.]⁴ as where it is said ‘and in which A. has no entry except through B.,
[024] who had only custody therein with C., [his wife], whose inheritance that land was, and
[025] who was the mother of the aforesaid D., the mother of [E.] the wife of him who
[026] claims, through whom the aforesaid [Peter] and his wife, the claimants, claim that
[027] land.’ And afterwards thus: ‘[as land] of which the aforesaid [B. and C.], the grandmother,
[028] were seised in their demesne as of the fee and right [of the said C.] in the time
[029] of such a king, taking thence esplees etc., and from her the right descended etc. (as [in
[030] an action] by writ of right).’⁵ In that case the tenant must put himself on the grand
[031] assise or defend himself by the duel for lack of other proof, unless one says that the
[032] writ ought to fall because of the time limitation and the very distant entry.⁶ If the
[033] time is not exceeded, the tenant will have the choice of putting himself on a jury of
[034] entry until he puts himself on the grand assise or defends himself

Notes

1. Infra 44-6

2. Reading: ‘vel si aliquis ut ius suum per breve de recto’, from lines 8-9; ‘breve’ for ‘verbo’; om: ‘et ut . . . mero’

3. ‘et’

4. Infra 28, 97-8, 170, 359

5. ‘D’ for ‘C’. This is the case of Peter de Malo Lacu in 1220 (C.R.R., ix, 16: Trin. 4 H.3) noted infra 24: ‘ut in illa in quae non habet ingressum nisi per Robertum de Turnham, qui non habuit inde nisi custodiam cum Johanna uxore eius, cujus hereditas terra illa fuit et que fuit mater predicte Isabelle, per quam ipsa Isabella [the daughter of Isabella and the granddaughter of Johanna] clamat terram illam ut illam unde predicti Robertus et Johanna uxor ejus fuerunt seisiti ut de feodo et jure ipsius Johanne tempore regis Ricardi etc.’

6. Cf. infra 24, 44