Bracton: Thorne Edition: English. Volume 3, Page 177

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Volume 3, Page 177

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[001] in the name of another; if he is afterwards made lord and begins to possess in fee,
[002] quaere whether the impetrated writ ought to avail him. It is evident that it ought not,
[003] because at the time of impetration not he but another had the right to impetrate. For
[004] that reason the time of issue must be examined.¹ This is confirmed [in the roll] of the
[005] last eyre of Martin of Pateshull in the county of Suffolk, an assise of novel disseisin
[006] of common of pasture [beginning] if John of Stanton.² [Note that ‘herbage’ does not
[007] include acorns, and therefore pigs and goats are excluded in the season of acorns and
[008] mast, unless it is specially agreed that he have that kind of common. ‘Acorn’ includes
[009] acorns, chestnuts, beechnuts and nuts generally, and all other things which may be
[010] grazed on in addition to grass.]³ The tenant may also reply that the plaintiff never
[011] had peaceful possession, because he never had entry therein without being required
[012] to give security and make amends for his trespass.⁴ ⁵<Rights do not admit of livery
[013] but are transferred with the thing in which they inhere, that is, with the body, [and]
[014] he to whom they are transferred quasi-possesses them as soon as he has the body in
[015] which the rights inhere,⁶ [and] though he cannot at once use, because the time has
[016] not arrived at which he may use, [as may be seen in advowsons and the right of
[017] advowson, for until the church is vacant so that he can⁷ present he cannot use his
[018] right effectively.⁸ If one has the liberty of judging a thief and of having a gallows,
[019] he cannot use it before a case arises.⁹ The same is true in the assises [of bread and
[020] beer] and sworn measures, before a trespass has been committed.¹⁰ And so in the
[021] right of pasturing, as in common of pasture, before he has a beast to put in.]¹¹
[022] nevertheless he is always in possession and is taken to use until he loses by non-use.¹²
[023] One may use not only in his own name but in another's, and he always uses and
[024] possesses in whose name the thing is used or possessed,¹³ as where a guardian uses in
[025] the name of the heir in his wardship, or some other person, as a rector, uses in the
[026] name¹⁴ of his dignity or church, And since the church is always under age,¹⁵ it acquires
[027] through its rector and retains through him, as a minor through his tutor. And though
[028] the rector dies, the church does not lose its seisin of anything of which the rector dies
[029] seised in the name of his church, any more than a minor does if his guardian dies and
[030] he passes into the wardship of another; the minor's estate is not altered by that, and
[031] the same ought to be applicable, it is submitted, with respect to the rector of a church,
[032] that his successor ought to have the same seisin his predecessor had, because the
[033] church always remains in its possession though the rector dies.¹⁶ When his successor
[034] has been instituted, he is at once in quasi-possession in the name of the church,

Notes

1. Supra 176, n. 3

2. Not in B.N.B.; roll extant

3. Supra 167, infra 188

4. Supra 175

5. Supra i, 401

6. Om: ‘licet non statim . . . non usum,’ redundant

7. ‘possit’

8. Supra ii, 168

9. Supra ii, 167

10. Ibid.

11. Supra ii, 160, iii, 165

12. Supra ii, 159, iii, 168

13. Supra 173

14. ‘nomine’

15. Supra ii, 52, 105, infra iv, 356

16. Supra 173