Bracton: Thorne Edition: English. Volume 3, Page 148

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Volume 3, Page 148

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[001] made a gift subject to an agreement is unable to put himself in seisin; recourse must
[002] be had to a superior. He will be given an action based upon the agreement when he is
[003] out of seisin; when he is in seisin, he will be given an exception based on the agreement.¹

Matters which bar restitution by the assise.

[005] Uncertainty, whether as to the thing itself, the body or² tenement, or as to a right
[006] appurtenant to the tenement, or as to the person of the plaintiff [impedes restitution].³
[007] I do not say this if certainty may by some means be secured or at least a presumption
[008] raised, but if certainty can in no way be reached nor any presumption
[009] raised.⁴ Negligence or dissimulation for a time, which are taken for consent, are also
[010] impediments to restitution, not to the extent of destroying the action completely,
[011] but to that of taking from the disseisee the right to re-eject immediately, for dissimulation
[012] and gross negligence, which is taken for consent, gives the disseisor a quasi free
[013] tenement, so that he cannot be ejected without judgment, and takes his privilege
[014] from the disseisee, for since he is negligent it is at least presumed that he was not
[015] unwilling to be disseised,⁵ and also that he has lost both possessions, natural and
[016] civil. Similarly consent, whether it exists from the beginning or is given subsequently,
[017] remits the injuria and quitclaims the tenement. A transactio [the compromise of a
[018] doubtful claim] also impedes restitution, as where, for the avoidance of strife, he
[019] remits part of the tenement and accepts part, which may be allowed him as a matter
[020] of grace and for the furtherance of peace, not de jure, for with respect to things done
[021] against the peace of the lord king there is no concord or compromise, only judgment,
[022] according as the plaintiff withdraws or the disseisor acknowledges the disseisin. Confirmation
[023] or consent also impedes restitution: [confirmation], as where the disseisee
[024] confirms the things seized to the disseisor, for a confirmation willingly made nullifies
[025] an injuria; consent, as where the disseisor makes a gift and the disseisee consents to
[026] it and ratifies it, when it is first made or after a time.⁶ The disseisee's usurpation, without
[027] judgment, of his own property after the disseisin also impedes restitution, but
[028] only after time has passed, as where a disseisee is negligent in impetrating or prosecuting
[029] or both; he cannot usurp his own property without judgment, as above.⁷ He
[030] may accept it, however, if it is freely offered him. [Only sometimes, not always,⁸ for
[031] example, A. disseises B., C. disseises A., or A. gives the tenement to C.; B. impetrates
[032] against A. A. fearing the disseisin and the assise ejects C. without judgment and
[033] restores the tenement to B., after impetration by C. or before. If C. sues A. alone and
[034] not B., A. cannot restore. If he sues B. alone, B. did not disseise C. He thus must sue

Notes

1. Supra 124, 146

2. ‘vel’

3. Supra 140

4. Supra 143, infra 149

5. Supra 143

6. Supra ii, 173 174

7. Supra 136

8. Supra 54-5