Bracton: Thorne Edition: English. Volume 3, Page 174

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Volume 3, Page 174

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[001] so that he cannot use.¹ Only then must recourse be had to a superior, as above.² If
[002] he did not die seised, we must then see whether he was disseised long before his death,
[003] so that he could have sued by the assise but did not, through negligence, ³<or so shortly
[004] before it that he still retained civil possession.> In the [first] case, the heir is not
[005] aided by the assise, since, because of the negligence of his ancestor, he cannot be
[006] heard except on the property, for to those who are vigilant etc.⁴ Thus one suffers
[007] damage without fault through the default of another. If he was disseised shortly
[008] before his death, or during the illness in which he died, so that he could not sue, his
[009] animus retinendi remaining unchanged and his intention to sue if he could, he is always
[010] taken to be in possession and to die seised, since he always retained civil possession.⁵
[011] Hence he transmits the same⁶ to his heir, and by virtue of it the heir may use
[012] unless he is prevented. If he is prevented, so that he cannot enter at all, he will have
[013] the assise of mortdancestor,⁷ or another writ in place of mortdancestor,⁸ or novel disseisin,⁹
[014] as he chooses. But whether it was long before or shortly before his death that
[015] the ancestor was disseised, [if] in his lifetime he sought to recover it by writ, so that
[016] a view of the land was made and the jurors etc., by such impetration he was taken to
[017] have lost both possessions, civil and natural, and thus could transmit no seisin to his
[018] heir.¹⁰ But because he sued he transmits an action of novel disseisin, [so to speak, by
[019] writ of entry,]¹¹ not as to the penalty for disseisin but as to restitution, in accordance
[020] with the twofold nature of novel disseisin, as above. For the injuria is extinguished
[021] by the death of him who caused it, and similarly by that of him to whom it is done,
[022] and thus the penalty is extinguished because the injuria dies with the person, [as
[023] below more fully [in the portion] on entries post disseisin through the death of the
[024] principals.]¹² ¹³The words ‘of his common of pasture appurtenant to his free tenement’
[025] are also in the writ and from them an exception arises for the tenant. With
[026] respect to the word ‘common,’ of what nature the exception ought to be may be drawn
[027] satisfactorily from the foregoing; so with respect to ‘which is appurtenant etc.’ [With
[028] respect to the word ‘tenement’],

Of exceptions against the assise.

[030] the tenant may say and except that the tenement in which the common is claimed
[031] and that to which the common is said to be appurtenant are of different baronies and
[032] different fees, and that the fee in which the common is claimed is free and owes no
[033] servitude to the other, nor had the plaintiff ever had common there, nor the right of
[034] pasturing, either by virtue of any formal constitution or through use, in return for
[035] service or because of vicinage;¹⁴ and if he ever had any use or

Notes

1. Supra 168

2. Supra 170

3. Supra i, 401, from 173, n. 13: reading: ‘vel si recenter . . . quod adhuc retinuit’

4. D. 42.8.24: supra 47, 157, 158

5. Supra 157, 158, 159, infra 270

6. ‘eandem’ all MSS

7. Supra 157, infra 201, 270

8. No mortdancestor, but quod permittat: infra 326; B.N.B. no. 1930 (margin): ‘Nota de communa pasture ubi nulla assisa mortis antecessoris, et ideo concessum est breve quod permittat loco assise talem habere communam de qua talis antecessor fuit seisitus die quo obiit tamquam pertinentem ad liberum tenementum suum in tali villa’

9. Supra 173, infra 201

10. Supra 157

11. Supra 157, 158, infra 270

12. Supra 157 ff.

13. New paragraph

14. Supra 163, infra 185