Bracton: Thorne Edition: English. Volume 2, Page 125

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Volume 2, Page 125

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[001] are acquired by the jus gentium. For nothing is more consonant with natural
[002] equity than that effect be given to the intention of an owner wishing to transfer
[003] his property to another. Nor is it of importance whether he himself transfers the
[004] thing given to the other or another does so with his consent,¹⁴ as a procurator
[005] in the lord's absence, or, as mentioned briefly above, a messenger with procuratorial
[006] letters patent expressing the donor's will.¹⁵ In that case let the letters and
[007] charter be shown, that it may be said he had writ and charter, [or] in English,
[008] ‘He hadde bothe writ and chartre.’

[How livery must be made].

[010] Whether made by the donor himself or a procurator, if livery is to be made of a
[011] house by itself, or of a messuage for an estate, ¹⁶it ought to be made by the door
[012] and its hasp or ring¹⁷ with the intent that the donee possess the whole to its
[013] boundaries, with all its rights and appurtenances, and he will thus be in possession of
[014] the whole by the will [of the donor], the view, and his own affectus possidendi.¹⁸ If
[015] there is no house on the land, ¹⁹it is not necessary to circumambulate all the fields or
[016] enter everywhere and into every quarter,²⁰ [but] let [livery] be made²¹ him in the
[017] manner commonly called ‘by staff and rod,’ and a simple entry with the affectus
[018] possidendi and the donor's consent suffices, though he does not at once take the
[019] issues.²² For one may have a free tenement by livery though he does not immediately
[020] use or take the issues, because use and issues do not much affect a gift, [They are
[021] often of value as evidence of possession and, like livery, may be called the vestments
[022] of gifts.]²³ for if one buys a horse, it will be his at the moment of delivery though he
[023] does not use it at once, and the same is true of a robe and the like, and so if one buys
[024] an estate, he may not at once plough or cultivate it, perhaps because he has neither
[025] oxen nor plough, nor anything by which he may use, or because the day is a holiday,²⁴
[026] ²⁵<Though an estate is transferred with an intention on the donor's part to
[027] give the whole and on the donee's to take the whole, it is not sufficient for the donee
[028] to use some part of it,²⁶ of the principal thing or of the appurtenances, unless the
[029] donor and all his people withdraw completely from possession, for by using part of the
[030] thing himself or through his people he retains the estate and its appurtenances, even
[031] though the donee [also] uses part, whether of the thing itself or its appurtenances,
[032] for by such use he acquires nothing.²⁷ ²⁸If an inquest is held as to use and it is found²⁹
[033] that the donor used some part of it to the time of his death,

Notes

15. Supra 124

16-17. ‘fieri debet ... per anulum’, from lines 13-14; infra iv, 241

18. Azo, Suma Cod. 7.32,no.3: ‘Sed quod dixi de corpore non est intelligendum ut semper corpore sit necessarium, vel pedibus rei insistere; sufficit enim usus oculorum et animi affectus cum tradentis voluntate ad acquirendam possessionem.’; infra 126

19-20. ‘non est ... pedem ponere,’ from lines 12-13; D. 41.2.3.1: ‘non utique ita accipiendum est, ut qui fundum possidere velet omnes glebas circumambulet, sed sufficit quamlibet partem eius fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere.’; infra 133, 150

21. ‘fiat’

22. Infra iv, 170

23. Supra 64, infra 287, iii, 276

24. Infra 126, n. 3

25. Supra 1, 379; a gloss qualifying the word ‘animo’ above

26. Infra 151

27. Infra 150, 151

28. Om: ‘Sed’

29. ‘inveniatur’