Bracton: Thorne Edition: English. Volume 2, Page 297

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Volume 2, Page 297

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[001] others are founded on the property. If several actions for the same thing are
[002] available to one demandant, as the assises of novel disseisin [and] mortdancestor
[003] on the possession and the writ of entry and the writ of right on the property, he
[004] cannot use them all at one and the same time, but let him choose one, whichever
[005] he will, and having chosen one he will never have recourse to the others while
[006] that is pending.¹ If he resorts to another, his impetration of the second will be
[007] without effect.² ³But if he withdraws in some way from the action he has begun,
[008] by leave of the court or by judgment, he shall observe the following order in the
[009] bringing of other actions. If he has withdrawn from an assise of novel disseisin he
[010] may at once have recourse to the assise of mortdancestor, if that is available to
[011] him, after that to the writ of entry, and finally to the writ of right, in this way
[012] ascending from possession to property.⁴ But he may not proceed by descending in
[013] the contrary order, for from the writ of right descent is never made to other lesser
[014] writs, since he who once proceeds by that writ brings sub judice the whole right,
[015] both as to the possession and the property,⁵ as may be seen below where the writ
[016] of right is expounded.⁶ A descent is never made from a proprietary action to a
[017] possessory one,⁷ nor after he has once brought an action on the seisin of an ancestor
[018] may he sue on his own seisin by the assise.

If one has withdrawn from an action [in rem] after having chosen it.

[020] ⁸When one has once withdrawn from an action in rem, has either retracted himself
[021] or has had judgment given against him, he can never return to it, since once
[022] extinguished it cannot revive.⁹ But if for some reason he has withdrawn not from
[023] the action but from the writ, because it is defective, it will be otherwise.¹⁰

A third division of actions.

[025] ¹¹Some actions are prejudicial, those which arise out of incidental or emergent
[026] questions, [emergent], in which it is asked ¹²whether one is freeborn or a freedman, a
[027] free man or a bondsman, a son or not,¹³ and if a son, whether legitimate or a bastard,
[028] and other matters of the kind; [incidental], ¹⁴as where an agreement or pact [de non
[029] petendo], res judicata or a fine made, or an exception of any other kind enters into a
[030] suit.¹⁵ They are called prejudicial because they are adjudged before the principal
[031] action,¹⁶ and [because] ¹⁷by that incidental or emergent action the principal action
[032] remains or proceeds.¹⁸

Where criminal proceedings ought to be determined.

[034] We must see where pleas or actions ought to be determined. It is clear that if they
[035] are criminal they must be determined in the court of the lord king, since it is
[036] there that corporal punishment must be imposed, and that before the king himself
[037] if the matter touches

Notes

1. D. 50.17.43.1; infra 319, 322

2. Because there has been no withdrawal from the first: infra 323; iv, 289

3. Br. and Azo, 181, 184

4. Infra 319

5. Infra 320, 323; iii, 38-9

6. Infra iv, 47, 284

7. Cf. infra 319, 320

8. Br. and Azo, 181, 184-5

9. Drogheda, 64: ‘semel extinctae non reviviscunt’

10. Infra iii, 138

11. Br. and Azo, 181, 185; ‘actionum,’ all MSS

12-13. Azo, Summa Inst. 4.6, no. 25

14-15. Reading: ‘ut si incidat in quacumque causa conventio . . . exceptio,’ from lines 31-2; infra iii, 339

16. Infra iii, 142

17-18. ‘per hoc incidentem vel emergentem remanet principalis vel procedet’