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[001] a proprietary action by writ of right and then wish to resort to a possessory one;
[002] I cannot, for to do so would be to impugn the first, since a proprietary action
[003] includes the possessory.1 2<And note in fine that when one has several concurrent
[004] actions for the same thing one must be brought,3 as D. 4.2.21.6 and D. 14.4.9.1.
[005] But D. 43.3.1.4 appears to be contrary, for there it is said that if two actions are
[006] available which the plaintiff knows to be available he may put them both forward
[007] with the protestation that he wishes to claim his thing by one of them; thus he
[008] may put forward the two actions without specification. The solution:4 when I am
[009] certain that both actions are available to me I am obliged to elect, as D. 14.4.9.1.
[010] But if I do not know which may be available to me, I may then put my two
[011] actions forward in general words without specifying which, as in the contrary lex,
[012] as5 where my action depends upon an admission by my adversary; he is bound to
[013] declare, when asked, whether he holds as heir or as possessor, that I may know the
[014] action available to me as plaintiff, despite the general rule that no one is obliged
[015] to divulge the title upon which his possession rests, as C. 3.31.11.6 If one has
[016] impetrated two writs at the same or at different times, [provided he has [not] put them
[017] into operation,] [he may elect one]; having chosen the one by which he wishes to proceed
[018] he cannot proceed on the second, [if the other has been put into operation,]7
[019] before he has withdrawn from the first, as [in the case] of the Abbot of Rievaulx
[020] and Peter of Savoy, coram rege.8 9Note also that when there are two concurrent
[021] actions for the same thing 10they are either recuperatory or penal. If recuperatory
[022] only, then the action he wishes to pursue will be in the plaintiff's election, as was
[023] said above, and having elected one etc., as above, as D. 19.2.25.4.11 But if they are
[024] penal, 12then [they arise] either from a single act or from different acts. If from
[025] one and the same act,13 as where one seizes a thing by force [and] is liable under
[026] the action for theft and the interdict unde vi,14 then, 15having elected one he cannot
[027] resort to the other save for what he has failed to obtain by the first, as [D. 47.8.1
[028] and D. 19.1.28].16 If they arise from different acts, then neither is destroyed by the
[029] other, as D. 47.1.2 and D. 44.7.34;17 and where18 there are two concurrent [penal]
[030] actions touching the same thing one does not consume the other, as in the
[031] Institutes.>19 20<And note that a penal action does not lie against heirs, nor does
[032] it lie for heirs unless issue has been joined with the deceased.21 There is authority
[033] for this in D. 39.4.16.13, where it is said that penalties cannot be claimed from
[034] heirs if the dispute was not moved in the life of the wrongdoer. And this applies
[035] no less to public taxes than to other penalties. 22[A procurator may bring] a
[036] criminal action,



Notes

1. Supra 297, 320, infra iv, 284; cf. Schulz, 180

2. Supra i, 385; Br. and Azo, 209-13

3. Supra 297, 322

4. Drogheda 60, 290

5. ‘ut’

6. Infra iv, 169

7. Reading: ‘ex secundo agere non poterit, si alio prius usus fuerit, antequam’; supra 297

8. Infra iv, 289-90: 1247; not in B.N.B.; no roll extant

9. New paragraph

10-11. Drogheda, 60-61

12-13. Ibid., 290

14. Rectius: ‘et actio vi bonorum raptorum,’ as D. 47.8.1

15-17. Ibid., 290, 60; the citations to the Digest, properly D. de privatis delictis, l. numquam and D. de actionibus et obligationibus, l. qui servum, from lines 28-9

16. Drogheda's citations, added here, have dropped out of Bracton's text

18. ‘ubi’

19. Inst. 4.9.1; D. 44.7.60; 50.17.130; infra 325

20. Supra i, 385; Br. and Azo, 213-14. This addicio falls into the next section: heirs of disseisor liable to restore.

21. D. 27.7.8.1; infra iii, 44, 157

22-23. Tancred, 119: ‘Et nota quod licet agatur de crimine, si non agitur criminaliter sed alio modo, intervenire potest procurator in causa, ut X.1.38, ca. 5 ...’; ‘ita causa criminis iniuriarum, in qua illustris persona per procuratorem agere potest, ut C. 3, qu. 9, ca. 18 et C. 9.35.11.’


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