Bracton: Thorne Edition: English. Volume 2, Page 154

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Volume 2, Page 154

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[001] not be admitted, no matter what the reason;¹ if he is repelled the assise of novel
[002] disseisin is not available to him² though he claims that he had no intention of
[003] withdrawing from possession, [Supposition is here preferred to truth.] for since
[004] he left freely, formally, and without compulsion, there is, to say the least, a very
[005] strong presumption that he had no clear intention of returning,³ and anyone,
[006] whether he had such or not, could claim that he had no intention of withdrawing
[007] and so revoke what had been done. Thus whether he did or did not intend to
[008] return the donee will act properly if he keeps him out of seisin. ⁴Conversely, whether
[009] from the first he had the intention of returning or not, if on his return the donor
[010] ejects the donee, who cannot at once re-eject him, the assise of novel disseisin lies for
[011] him despite any exception of tenuous seisin.⁵ ⁶And so when both have withdrawn,
[012] livery having been made and no one being left in possession; if the donor at once
[013] returns and puts himself in possession [and] the donee on his return cannot
[014] immediately eject him, the assise lies for him.⁷ When the donor's⁸ seisin is
[015] adjudicated⁹ by the assise, the donee's will be good in perpetuity and the gift
[016] thenceforward deemed neither fictitious nor feigned; hence after¹⁰ that, the donee
[017] may regrant the thing to the donor for life without raising suspicion. ¹¹For it is of
[018] value to possess whenever possession was begun with the consent of him to whom it
[019] belongs,¹² and it suffices that he once consented, all the other necessary elements of
[020] a valid gift being present. ¹³And if the consent of him to whom the thing belongs is
[021] secured after possession was begun, though there was no such consent at the
[022] beginning, that will suffice and be of benefit to the possessor though it is ex post facto.
[023] And so if one begins to possess with the consent of him to whom the thing belongs,
[024] the fact that his consent did not afterwards continue does not prejudice the
[025] possessor, for he once began to possess with his consent,¹⁴ as in the first case.

How possession once acquired may be lost.

[027] We have indicated above how and by what persons possession is acquired,¹⁵ and
[028] how the donee ought to use it.¹⁶ Now we must explain how, once acquired, it
[029] may be lost. It is clear that possession is lost in very much the same way that it
[030] is gained. Acquired corpore and animo, it is not lost unless both [are lost], since
[031] it may be retained by intention alone, as was said above.¹⁷ Hence [though] when
[032] one who has natural possession and civil [transfers], by some

Notes

1. Supra 103, 107, 132, 151, infra iii, 277

2. Supra 132, infra iii, 277

3. Supra 130, 131

4-5. ‘Item vice versa ... seisinae,’ from lines 12-15

6-7. ‘Et idem ... donatario,’ from lines 23-26

8. ‘donatore’

9. ‘abiudicata,’ all MSS.

10. ‘post hoc’ for ‘per hoc’

11-12. D. 43.3.1.14: ‘Prodest autem possedisse quotiens [ex] voluntate eius ad quem ea res pertinet possideri coeptum est;’

13-14. Ibid. (continuing the above): ‘sed et si postea voluntas accessit eius ad quem ea res pertinebat, tamen prodesse possessori debere, unde si quis coepit quidem ex voluntate eius ad quem ea res pertinet possidere, postea vero voluntas non perseverat, nihil nocet quia semel possideri coepit ex voluntate.’

15. ‘adquiratur’ for ‘retineatur’

16. Supra 149-54

17. Supra 140