Bracton: Thorne Edition: English. Volume 3, Page 200

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Volume 3, Page 200

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[001] which such a one, the father (or other ancestor) of him who holds, whose heir he is,
[002] wrongfully etc. disseised the aforesaid demandant, so that an assise¹ of novel disseisin
[003] was arraigned etc.’ And so in all respects as above, of a free tenement,² with the clause
[004] or without it,³ and according as the disseisor and the disseisee are dead or one of
[005] them, because there is the same reason here as there. If the view is claimed, let the
[006] demandant make a view of the tenement⁴ to the jurors, as the plaintiff would do if
[007] he lived, and let it not remain if it is said that servitudes and rights cannot be seen
[008] since they are incorporeal, and thus invisible and intangible, because the bodies may
[009] be seen, that is, the tenements in which the rights are constituted, and also the tenements
[010] to which they are said to be appurtenant, in order to ascertain in what places
[011] and within what limits they are contained, as is done every day with respect to common
[012] of pasture [claimed] by writ of right and the writ quo jure. In the same way the
[013] view may be sought of a right of advowson; though the right cannot be seen, it
[014] suffices if the body in which that right inheres is seen, as is done in the assise of
[015] darrein presentment, [for] in truth it is one thing to see the right and another to see
[016] the church. What is said above with respect to the writ of entry and assises and servitudes,
[017] could also be said of nuisances, as where one has done a wrongful act on his
[018] own land which caused harm to the land of his neighbour, an assise was arraigned
[019] with respect to it, and before the taking of it one of the parties died or both, that the
[020] injuria should not on that account remain, with respect to the restoration of the
[021] status quo, not the penalty, [for] there is the same reason here as above, and therefore
[022] the same law.⁵ The form of writ may be this.

Writ.

[024] ‘The king to the sheriff, greeting. Order⁶ A. that rightfully etc. he cause the bank in
[025] such a vill to be re-erected and repaired which B. his father (or other ancestor) whose
[026] heir the same A. is, wrongfully and without judgment cast down in that vill to the
[027] nuisance of the free tenement of C. in another vill (or in the same) as to which an
[028] assise of novel disseisin was arraigned and a view of the land etc., the taking of which
[029] remained etc. (as above).⁷ Or without that clause, thus ‘Order A. that rightfully etc.
[030] he cause to be re-erected and repaired a certain bank in such a vill which B, father
[031] of the said A, whose heir he is, wrongfully etc. cast down in that same vill to the nuisance
[032] etc.⁸ [of C], who died before he could sue by the assise, as the same D. says. And
[033] unless he does etc.’⁹ <But since this action ought not to be extended to heirs in so far
[034] as it is penal, and since it would sometimes be very burdensome and expensive for
[035] the heir to restore such nuisances to their original state, let the writ sometimes be
[036] drawn in these words. ‘Order such a one etc.

Notes

1. ‘assisa’

2. Supra 51, 159

3. Supra 114, 158-9

4. ‘tenementi’

5. Supra 174; remainder transposed infra 201

6. ‘Praecipe’

7. Supra 157-59, 199, n. 2

8. ‘Et tunc sic: ‘Praecipe . . . ad nocumentum etc.’ from 201, lines 9-12; reading: ‘relevari,’ ‘reparari’

9. Supra i, 402