Bracton: Thorne Edition: English. Volume 3, Page 126

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Volume 3, Page 126

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[001] brings the assise against him, the feoffee may answer to the assise that though the
[002] feoffor was once seised he ceased to possess by the gift, [since] he withdrew from possession
[003] completely, animo and corpore, corpore, [that is], his own as well as another's, no
[004] one in his name being left in possession. He may except against intruders and disseisors,
[005] if they claim against the true lord by the assise, after having been ejected,
[006] that they had no peaceful seisin, because he, the true lord, ejected them immediately
[007] after the intrusion or disseisin, [as above, where this matter is treated more fully.]¹
[008] A tenant may except against a plaintiff in one kind of disseisin, where one holds a
[009] tenement and another wishes to use it against his will, [that he holds freely], and² if he
[010] against whom complaint is made, who³ wishes to use, says that the tenant does not
[011] hold freely, because he has used the tenement and has the right to pasture beasts (or
[012] some other servitude) through long use, or through some justa causa [of acquisition,
[013] as] by the constitution⁴ of a servitude, and the tenant replicates that his tenement is
[014] free and owes no servitude to the neighbour, [the truth] will be declared by an assise
[015] taken in the manner of a jury by consent of the parties. He may also except against
[016] the assise and the plaintiff that though there once was a disseisin and he was disseised,
[017] that he [the plaintiff] is now in free and peaceful seisin. But then we must see
[018] whether it was before impetration or after [that he entered], and whether he usurped
[019] his own seisin by force or received it freely when offered.⁵ If before impetration, after
[020] a time,⁶ not immediately and at once, he usurps seisin to himself, he will be in mercy
[021] not only for the usurpation and disseisin, but also for his false claim, because after the
[022] usurpation there was no reason for impetrating,⁷ and the other⁸ will nonetheless be in
[023] mercy for the disseisin. And so if, after impetration, he accepts his seisin freely
[024] offered, that is, he will be in mercy for a false claim if he prosecutes [his writ], and the
[025] other for the disseisin. If he accepts it before impetration and then impetrates, if he
[026] later wishes to use [his writ], let him be in mercy for a false claim, or if he does not and
[027] retracts, because he did not prosecute.

The exception against the words ‘of a free tenement’

[029] An exception is also given the tenant against the plaintiff on the words ‘of a free tenement,’
[030] for the writ contains the phrase that ‘such a one wrongfully and without judgment
[031] disseised such a one of his free tenement.’ We must see, therefore, in the first
[032] place, what kinds of tenements there are, and for whom the exception of free tenement
[033] lies. It is clear that a free tenement is that which one holds to himself and his
[034] heirs, in fee and inheritance, or in fee only, to himself and his heirs.⁹ Also what one
[035] holds as a free tenement, as for life only, or by the same token, for an

Notes

1. Supra 21

2. ‘et’

3. ‘qui’

4. ‘constitutione’

5. Infra 176

6. ‘post tempus’

7. Supra 38, 66, 79, infra 176

8. ‘alius,’ as below

9. Infra 132