Bracton: Thorne Edition: English. Volume 3, Page 69

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Volume 3, Page 69

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[001] intrusion, and thus not in another's name but in his own, though he in truth has no
[002] right as against the true lord he nevertheless has a free tenement at once and without
[003] interval of time as against all who are out of possession and who have no right in the
[004] tenement, as below.>¹ The complaint having thus been put forward and supported,
[005] it is only then that we must turn to the recognition, to ascertain whether what is
[006] put forward is true or not. Therefore if the assise is taken simply and superficially,
[007] as some [judges] do, who ask immediately after the writ has been heard whether the
[008] defendant has anything to say against the assise, it is done without discrimination,
[009] the complaint remaining, so to speak, unexamined, for it is not yet clear whether an
[010] assise or a jury lies, nor indeed whether there is a trespass or a disseisin. Therefore,
[011] just as the demandant in a proprietary action must show by what right he claims,
[012] since it is not enough simply to say that he has a right in the thing unless he shows
[013] by what right,² so it is not sufficient to put forward a plaint unless the plaintiff shows
[014] a right to the plaint and by what right it belongs to him. Thus in order that a thing
[015] certain be brought before the court and that judgments certain be rendered, in order
[016] to instruct the jurors³ the judges must put questions, as a precaution, first, of what
[017] tenement was the plaintiff disseised, of what kind, that is, of land or of rent; if of
[018] land, whether it is his own or held in common,⁴[or] public or sacred.⁵ Also whether the
[019] land or tenement is a descending inheritance or an acquisition, secured through some
[020] justa causa of acquisition. And whether in fee, for life in some way, or ‘until he be
[021] provided for,’ so that it may at least be presumed that it may be his free tenement,⁶
[022] or,⁷ though another's, that sufficient time has passed so that he could not be ejected
[023] without judgment. For that reason enquiry must be made as to the time in seisin,
[024] no matter who has been in seisin and disseised without judgment, a younger or an
[025] older brother, a bastard, or even a total stranger. If it is a rent, we must then enquire
[026] whether it is one owed to a lord-feoffor, or one granted out of a tenement to be taken
[027] annually from the tenement of a feoffee.⁸ Also whether it is to be taken only from a
[028] chamber for life, or in fee from heirs, without any tenement from which it ought to
[029] issue. If without a tenement and from a chamber, in fee or for life, whether it is given
[030] for having some tenement, as⁹ for having some right or liberty in another's estate.¹⁰
[031] We must also enquire as to the size of the tenement, whether there is more there or
[032] less, in order to ascertain whether the plaintiff has put more into his view than he
[033] ought to recover by the assise, and whether he ought to recover the whole or part or
[034] nothing at all.¹¹ Also lest the plaintiff usurp more in seisin than he recovered by the
[035] assise, that if he does, and complaint is made thereof, it may subsequently be
[036] declared¹² by the assise. We must also enquire whether he has been completely
[037] ejected, or hindered in the use of

Notes

1. Infra 97

2. ‘quo iure’

3. ‘ut certi reddantur iudicii, ad instruendum’

4. Supra 60

5. Supra 61, infra 136

6. Supra ii, 90, iii, 39-40, 50, infra 127

7. ‘vel’

8. Infra 117

9. ‘ut’

10. Supra 59, 61, infra 116

11. Supra 63

12. ‘declaretur’