Bracton: Thorne Edition: English. Volume 3, Page 325

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Volume 3, Page 325

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[001] a writ of right, as a writ of entry may be turned into a writ of right or conversely,¹ as
[002] where the demandant by writ of cosinage says in his declaration of the descent,
[003] ‘and of which such a one, his ancestor, died seised in his demesne as of fee’ and then
[004] adds ‘and of right.’ It is evident and it is true that he thus moves from possession
[005] to property, for when he says that such a one died seised in his demesne as of fee he
[006] draws into judgment the whole possessory right, and by adding ‘and of right,’ he
[007] draws into judgment the proprietary right, and in consequence the two rights, that
[008] is, those of possession and property, the double right which is called dreit dreit. But
[009] since the writ of cosinage can determine nothing except possessory right, and the
[010] demandant in his narratio goes beyond that to the mere right, to which cosinage no
[011] more than the assise of mortdancestor extends, he thereby withdraws from his
[012] writ and it falls, [he will only have recourse thereafter to a writ of right,] for a possessory
[013] action is never turned into a proprietary one by the narratio, on the demandant's
[014] side, as here, nor conversely. One may have a free tenement without use and
[015] esplees, and hence, if he is ejected from such seisin and seeks to be restored by an
[016] assise of novel disseisin, let him say² nothing in his intentio except that he was disseised
[017] of his free tenement. And so if he claims his ancestor's seisin by an assise of
[018] mortdancestor, let him say³ nothing except that his ancestor was seised in his demesne
[019] as of fee on the day he died. If he should mention esplees taken and the mere
[020] right, saying in⁴ an assise of novel disseisin ‘of my free tenement of which I was
[021] seised as of a free tenement [and] of right, taking esplees to the value etc.’ or in an
[022] assise of mortdancestor ‘in his demesne as of fee and of right, taking esplees to the
[023] value etc.,’ the writ would fall because of the mere right, as was said above. From
[024] which it is apparent that a possessory right may be good without use and esplees,
[025] though if they have been taken they are not injurious and may be of value, since
[026] they furnish vestments for the possession and make the possessory right explicit.⁵
[027] Conversely, a writ of right is never turned by the narratio into a writ appointed⁶ on
[028] the possession, for in this respect property and possession have nothing in common.⁷
[029] If one has once begun proceedings effectively by writ of right on the right, he can
[030] never return to any action on the possession⁸ and⁹ if in his narratio he omits some
[031] clause which is necessary in pleading on the right, as where he says merely ‘and of
[032] which such ancestor was seised in demesne,’ or if in talking of his own seisin he
[033] says ‘of which I was seised as of a free tenement’ or ‘in demesne as of fee,’ if he makes
[034] no mention of

Notes

1. Infra iv, 43

2. ‘dicat’

3. ‘dicat’

4. ‘in’

5. Supra ii, 125, 131, iii, 276, infra iv, 170

6. ‘proditum’

7. D. 41.2.12.1; supra ii, 321

8. Supra ii, 297, 319, iii, 38-9, infra iv, 284

9. ‘et’