Bracton: Thorne Edition: English. Volume 3, Page 30

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Volume 3, Page 30

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[001] possession in his name, for just as possession is acquired by those one has in his
[002] potestas,¹ and retained, so may it be lost through them; retained, as[003] me but not my household, the assise does not lie for me because I retain seisin through
[004] my household who are not ejected. But if one ejects me and my household, [or ejects
[005] some] and retains others, putting them in fetters or retaining them as bondsmen, the
[006] assise lies for me, for I have ceased to possess since my bondsman or the others through
[007] whom I retained seisin are possessed by another.⁴ If they are not expelled but begin
[008] to hold of him who has ejected by force, the assise is still available to me.⁵ If I am
[009] not ejected, [left] in possession but bound and impeded so that I cannot use, I am still
[010] entitled to the assise.⁶ It lies for everyone who is in seisin in his own name, rightfully
[011] or wrongfully: rightfully, as where he uses his own right; wrongfully, where he is in
[012] seisin by disseisin or intrusion, and if he is ejected by one who has⁷ no right, he is
[013] entitled to restitution by the assise, just as he who has right, against all except against
[014] the true lord, for though he has no right, since he is in possession he has more right
[015] (because of his seisin) than one who is out of possession⁸ [and] has no right, especially
[016] because if he who has right never claims, the land may remain with the disseisor or
[017] intruder forever.⁹ ¹⁰ <If, when my ancestor has given [a tenement] to farm and dies, I
[018] put myself into seisin, saving to the farmer his farm and his term, that¹¹ he not be
[019] impeded in his use, the assise lies for me if I am ejected, [and] though I may not use,
[020] seisin as of a free tenement will accrue to me. It does not take the farmer's term from
[021] him, and only if he begins¹² to hold beyond his term does it¹³ [the writ de termino qui
[022] praeteriit] lie for me, as it lay for my ancestor. If the farmer excepts on the ground
[023] that he was enfeoffed, the assise is then turned into a jury to inquire into the feoffment.>

If a disseisin is done to several of a thing held in common.

[025] Just as one may be disseised of his own property, several may be disseised of a thing
[026] held in common, and the plaint and remedy by assise lies for them. A thing or a
[027] tenement may be common in a variety of ways, as a thing common between husband
[028] and wife, where the plaint or assise lies for neither one without the other, since they
[029] are, so to speak, one body and two souls, having, so to speak, one right,¹⁴ [unless one
[030] says that if a husband disseises his wife, or a wife her husband, that the assise lies for
[031] one of them, as though holding in common with a stranger]. [But if that were so, a
[032] separation of body and blood would be made between them, which would be contrary
[033] to what was said above. It is submitted, therefore, that recourse must be had to court
[034] christian, so that, after investigation of the marriage there,

Notes

1. D. 41.1.10.pr.

4. Reading: ‘vel quosdam deiecerit et quosdam retinuerit,’ as D. 43.16.1.46: ‘servos quosdam vi depulit, alios retinuit et vinxit aut etiam eis imperavit, vi te deiectum intellegi: desisse enim possidere cum servi ab alio possideantur.’; ‘possideantur,’ as D.

5. D. 43.16.1.46: ‘et quod in parte servorum dictum est, idem in omnibus dici ait, si forte nemo depulsus esset, sed possideri ab eo coepissent qui ingressus in possessionem esset.’

6. D. 43.16.1.47: ‘si aliquo possidente ego quoque ingressus sum in possessionem et non deiciam possessorem, sed vinctum opus facere cogam ... puto eum quoque deiectum videre qui illic vinctus est.’

7. ‘habuerit’

8. D. 43.17.2: ‘qualiscumque enim possessor hoc ipso quod possessor est, plus iuris habet quam ille qui non possidet’; infra 70, 98, 122, 134

9. Supra 16, 27

10. Supra i, 392

11. ‘ut’

12. ‘inceperit’

13. That is, the assise, as infra 162, 273--4; B.N.B., no. 1290

14. Infra 114