Bracton: Thorne Edition: English. Volume 3, Page 33

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Volume 3, Page 33

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[001] Thus one parcener may and ought to answer without his parceners for his own disseisin
[002] and wrongful act, and no recourse will be had [by the others] except to that of
[003] convicting the jurors, if the parcener who has lost by the assise is willing to bring that
[004] action.¹ ²[After partition of the common inheritance, however, there will be several
[005] seisins and several separate rights, but nevertheless in a proprietary action one need
[006] not answer without the other unless he so wishes; if he does so and loses, he has no
[007] recourse against his parceners [for a share of the common inheritance].³ And what was
[008] said of co-heir parceners may be said of neighbours.] We have explained in the portion
[009] next preceding for whom the remedy by assise lies, whether he holds his own property
[010] or holds in common. Now we must explain for whom the remedy by assise and the
[011] plaint does not lie.

For whom the assise does not lie: of possession in the name of another.

[013] The plaint and remedy by assise does not lie for anyone who is in possession in the
[014] name of another, because he does not possess though he is in possession; he possesses
[015] in whose name the thing is possessed.⁴ To possess is very different from being in possession.⁵
[016] These are in possession though they do not possess: a guardian (sometimes
[017] who holds in demesne though not in fee. A procurator. A household. A bondsman,
[018] one's own or another's possessed in good faith. A farmer or fructuary, though not one
[019] who holds in fee farm. A usuary and a guest. And he who holds at will, from day to
[020] day [or] from year to year, though he may vouch a warrantor, according to some, as a
[021] usufructuary who holds for a term of years. Such persons will have neither the plaint
[022] nor the remedy by assise, because they have no action; the owner has it, and thus, if
[023] they sue, the exception of property and free tenement lies against them, no matter by
[024] what kind of disseisor it is raised, whether he has the right to eject or not.⁶ If the
[025] exception does not rightfully lie for such persons, that must be ignored, because of
[026] the true lord to whom the action belongs.⁷ Neither the plaint nor the remedy by assise
[027] lies for those who have committed a disseisin and been ejected at once and without
[028] delay by the true lord, while the wrong is still fresh. Nor for an intruder in the same
[029] circumstances, unless he has a long and peaceful time [in possession] which may
[030] suffice for title. Nor for him who was never in seisin or quasi-seisin, or who has an insufficient
[031] seisin, wrongful and disputed, without time and peace.⁸ Nor for a villein
[032] or a neif within the potestas of their lords: with respect to a pure villeinage, neither
[033] against their lord nor against others, no matter whom, because of their persons and
[034] by reason of the tenement, whether it is an ancient villeinage or one newly created;
[035] if it is an acquisition, the assise does not lie against the lord in whose potestas the
[036] villein is, but it does against feoffors and strangers, until the lord, in whose potestas
[037] they are, has taken the tenement into his hand, as will be explained more fully below

Notes

1. Infra 170

2. Belongs supra 32, at n. 6

3. Infra iv, 336-7

4. D. 41.2.18.pr.: ‘nam possidet cuius nomine possidetur’; supra 26, infra 84, 124

5. D. 41.2.10.1: ‘aliud est enim possidere, longe aliud in possessione esse’; infra 124

6. Infra 83, 124, 136

7. Infra 87

8. Infra 173, 175, 177