Bracton: Thorne Edition: English. Volume 3, Page 152

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Bracton Online -- English

Volume 3, Page 152

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[001] the jury the matter may be determined by the jury, according to some. If because
[002] the plaintiff never married the mother and the plaintiff replicates that he did, the
[003] assise will remain until the truth is established in the proper forum, that is, in the
[004] ecclesiastical court.

Where the assise is turned into a jury because of trespass.

[006] The assise is sometimes turned into a jury because of trespass. If¹ one attempts to
[007] use another's land against its owner's will, or to use land held in common without the
[008] consent of[his] parceners, [either² to make that held in common his own or to commit
[009] excess: to make it his own, as where he attempts to appropriate to himself some portion
[010] of the land held in common; to commit excess, as by using,]³ and so usurp to
[011] himself what is another's, or is common to himself and others, he commits a disseisin,
[012] and likewise a trespass, for every disseisin is a trespass.⁴ ⁵But not every trespass is a
[013] disseisin, and if he enters into another's estate with no intention of usurping the
[014] tenement or rights to himself, he does not commit a disseisin, only a trespass. But
[015] since the intention with which he enters is not evident, let the plaintiff sue by the
[016] assise. The judge must then inquire into the intention, whether he entered because
[017] he has a right in the thing, or [if] not, if⁶ he was misled by reasonable error or ignorance.
[018] If his ignorance was not wrongful and his error reasonable, as where⁷ he enters
[019] into another's land which he believes to be his, and (secretly or openly) cuts down
[020] trees or mows the herbage or other crop, and carries it away, not in the name of seisin
[021] but through error or ignorance, he is excused the disseisin, because this is a trespass
[022] rather than a disseisin, but not if it is gross ignorance, as where everyone in the
[023] county knows that the thing does not belong to him and he alone is ignorant.⁸ If he
[024] acknowledges the trespass let him amend; if he denies it, let the assise be turned into
[025] a jury to inquire into the trespass, and by that let him stand or fall. And so if he holds
[026] in common, there especially [is his act trespass rather than disseisin] unless he so acts
[027] repeatedly and habitually. For repetition alters trespass to disseisin, as where one
[028] commits a trespass repeatedly and replies to the assise that he claims nothing at all
[029] in the tenement, or no separate portion of the thing held in common, in order thereby
[030] to evade the punishment for disseisin; he will not be heard but shall suffer the punishment
[031] of disseisin and redisseisin.⁹ And so if he is taken in the act (or another is taken
[032] whose act he avows) [and] is unwilling to give gage; let the penalty for trespass be
[033] increased if the jury finds that to be true.¹⁰ If he says he has a right in the thing when
[034] he has none, or says it is his own when it is common, let the assise proceed at once in
[035] the manner of an assise, and by the assise the matter will be determined. If the thing
[036] is held in common, a judgment of partition may be proper. And what¹¹ if he [who] so

Notes

1. Om: ‘ut’

2. ‘vel’

3. ‘excessum facere, utendo’; ‘excessum’: D. 8.6.11.pr.

4. Supra 127

5. New sentence

6. Om: ‘ut’

7. ‘ut si’

8. ‘sed non . . . ignoraverit,’ from lines 18-19; D. 22.6.9.2; Drogheda, 27; om: ‘non excusatur’

9. Infra 202

10. Infra 153

11. ‘quid’