Bracton: Thorne Edition: English. Volume 3, Page 133

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Volume 3, Page 133

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[001] [these words] are contained in the writ, ‘of [his] free tenement,’ an exception is given
[002] the tenant against the assise¹ and the plaintiff in many ways. For he may say that the
[003] plaintiff was never in seisin of that tenement as of his free tenement, though in seisin
[004] in some way. Since the word ‘his’ is used, he is taken to intimate that if the plaintiff
[005] was once in seisin he was in seisin not in his own name but another's. Hence when the
[006] plaintiff has supported his intentio and shown that the tenement is his, the tenant may
[007] show, if he can, that it belonged to another at the time of the disseisin, which he may
[008] do in many ways, as may clearly be seen from what has been said above. From the
[009] words ‘of his free tenement’ in the writ an exception arises for the tenant against the
[010] plaintiff, but it does not lie for every tenant,² for though they may eject rightfully
[011] they cannot do so without judgment, [and] though they have the right to eject, they
[012] only have it immediately, not after the lapse of time. Hence if the true lord alleges
[013] that he ejected him rightfully, the replication may be made that he did so wrongfully,
[014] because without judgment, and if the true lord excepts that he has the right and the
[015] free tenement and was ejected wrongfully and without judgment, and that the plaintiff,
[016] who ejected wrongfully, cannot have the fee and free tenement, a replication may
[017] be based on time, that the true lord lost his free tenement by the lapse of time, by
[018] acquiescence, negligence or weakness.³

That long-continued acquiescence is the equivalent of consent.

[020] For long-continued acquiescence amounts to consent and negligence or dissimulation
[021] nullifies an injuria.⁴ Hence the disseisor, when he has time on his side and a quasi-free
[022] tenement, cannot be ejected without writ and judgment. Thus if he is disseised without
[023] judgment and brings the assise, the exception that he had no free tenement will
[024] not bar him, because of the usurpation without judgment on the part of the true
[025] lord,⁵ and because of the elapsed time on the part of the disseisee. If someone other
[026] than the true lord ejects after a time, or immediately after the disseisin or intrusion
[027] [when the lord] would have⁶ the exception that the plaintiff⁷ had no free tenement, he
[028] will not have the exception of free tenement; where he has ejected at once, because he
[029] had no right; though he could if he had right. Nor will the exception of tenuous seisin
[030] bar an intruder or disseisor against an intruder or disseisor, because whether he had
[031] tenuous seisin or some other is no concern of theirs, since it is not for them to eject an
[032] intruder or disseisor, because of [his] earlier seisin, of some kind and to some degree,
[033] rightful or wrongful, since as against⁸ a disseisor it makes no difference

Notes

1. ‘assisam,’ all MSS.

2. Infra 134, 135

3. Supra ii, 90, iii, 122

4. Inst. 4.4.12; supra ii, 64, 439

5. Supra 121

6. ‘haberet’

7. ‘querens’

8. ‘quantum’