Bracton: Thorne Edition: English. Volume 2, Page 321

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 321

Next

Go to Volume: Page:

[001] to prevent him from having recourse to actions lower down, because then the
[002] plea by writ of right has been effectively begun.¹ Others say the contrary, that it is
[003] not effectively begun until the party summoned has appeared and answered to the
[004] writ or vouched to warranty or has proceeded beyond that point. But in truth it
[005] suffices if what was first said is done. The above is true if the writ by which the
[006] action was begun lies in his case. If an assise of mortdancestor is impetrated but
[007] does not lie between the parties it will be taken as never impetrated, and the demandant
[008] may thus descend to the assise of novel disseisin for the recovery of his
[009] own seisin. This ought to be so though he has used it. And so if he has impetrated the
[010] little writ of right according to the custom of the manor of the lord king when he
[011] ought to have impetrated the great writ of right patent; though he uses it he nevertheless
[012] will have recourse to the great writ for claiming a free tenement, and conversely,
[013] for since it is² not impetrated in the circumstances of his case it is null and
[014] void.³ If each of two persons has a proprietary action against one and each may sue
[015] not only on the property but on the possession, but possession as of different times,
[016] cognisance of the last seisin must always be taken first.⁴ If it is impossible to be
[017] certain of the last seisin, let the general rule then be observed, that he who first
[018] appeals proceeds first. ⁵ ⁶<The question of ownership sometimes arises in an action
[019] founded upon possession, ⁷if the possessory action is brought for recovering possession,
[020] as in the assise of novel disseisin, or for obtaining it, as in the assise of mortdancestor,
[021] and both are sometimes tried together, the possessory and the petitory, [with]
[022] a judgment taking cognisance of [but] not pronouncing upon the proprietas.⁸ It will
[023] often be necessary to inquire into ownership in order to be more certain as to the
[024] possession, and thus ‘possession has nothing in common with ownership’⁹ with
[025] respect to judgment, though it does with respect to cognisance; or ¹⁰it may be said
[026] that they have nothing in common as regards decision, only as regards cognisance,
[027] as was said above, for otherwise the judge could not decide as to one, that is,
[028] as to the possession, unless he could take cognisance of the remainder,¹¹ namely, the
[029] property. The judgment of the judge will be on the possession. And note ¹²that
[030] the word ‘possession’ is sometimes used for a thing possessed, sometimes for the
[031] restoration [of a thing never possessed].>¹³

Failure in four cases.

[033] ¹⁴It is clear that the general rule that if several actions are available to a plaintiff

Notes

1. Infra iv, 284

2. ‘sit’

3. Infra iii, 38, iv, 284

4. Supra 319

5. D. 5.1.29: ‘Qui appellat prior, agit.’

6. Supra i, 385; Br. and Azo, 208-9

7-8. Drogheda, 357-8: infra v; ‘si,’ as Drogheda

9. D. 41.2.12.1; Drogheda, 357

10-11. Drogheda, 358: infra v

12-13. Drogheda, 359: infra v

14. Br. and Azo, 203-8. This section is taken from Tancred, 189 ff. though Br. has altered and supplemented it: Schulz in L.Q.R., lix, 172-80, superseding Maitland's remarks and Kantorowicz's comments in Br. Prob., 104 ff. Reading: ‘De hoc autem quod dicitur ... fallit (from 322, lines 2-5) cum ab una parte ... de pluribus rebus et diversis. Poterit qui eas proponit quam voluerit praemittere vel omnes simul tractare [nisi] in quatuor casibus,’ as Schulz, 176-7.