Bracton: Thorne Edition: English. Volume 3, Page 40

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Volume 3, Page 40

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[001] of warranty.’ And as¹ it may be that he will never return what was lost, the land may
[002] thus remain to him in fee in perpetuity as his free tenement.> ² But if he says ‘until
[003] he or his heirs provide,’ though he does not provide, it suffices if his heirs provide. If
[004] he says, ‘until I or my heirs provide for such a one,’ no mention made of his heirs, and
[005] he is not provided for in his lifetime, the tenement will remain in fee, though the donor
[006] or his heirs wish to provide for the heirs of the donee, for provision is here restricted
[007] to the persons.³ Restitution by the assise fails by reason of the thing sought, as where
[008] one complains that he has been disseised of a thing formally dedicated to God by
[009] priests, as churches and cemeteries, for such things cannot be the property of anyone,
[010] that is, of any individual person, only the property of God.⁴ If a thing of that kind
[011] should be sought from another de facto by the assise, it may be turned into a jury to
[012] inquire into the trespass,⁵ and if there was such both [will be] in mercy, the plaintiff
[013] for his false claim and the trespasser for his act. [This will not be true of what is not
[014] sacred, as free alms, for there is free alms and alms that are more free, as below.]⁶
[015] Similarly, there is no restitution by the assise to any individual of tenements and
[016] places which are quasi-sacred, as those which are the common property of cities and
[017] universitates, as a stadium, theatre and other such things,⁷ [city] walls and gates,
[018] public roads and streets, which are dedicated solely to some public use,⁸ and in which
[019] no individual person by himself may vindicate any right; as to such things it is trespass
[020] and not disseisin, because no individual person may be in seisin thereof, and one
[021] cannot be disseised of what he cannot possess.⁹ Nor if it is said¹⁰ that he possesses
[022] something therein by the jury into which the assise is turned, as above, in the first
[023] case, will he retain anything by the finding, nor will the plaintiff recover anything
[024] except the common use to which such places are dedicated, as [in the roll] of the eyre
[025] of Martin of Pateshull in the county of Southampton for the taking of assises of novel
[026] disseisin and gaol deliveries, [the case beginning] ‘if Adam Gernun.’¹¹ [There is more
[027] on this matter below [in the portion] on trespasses.]¹²

Against whom the assise lies and in what ways one falls into the assise.

[029] We have explained above for whom, after a disseisin has taken place, the plaint and
[030] remedy by the assise lies and for whom it does not. Now we must explain against
[031] whom it lies and in what ways one falls into the assise. The assise lies against a free
[032] man, a male or a female, one of full age or below age, a clerk

Notes

1. ‘sicut’

2. For the following: supra ii, 90-91

3. Om: ‘tam . . . ipsorum’

4. Supra ii, 40, 57, infra 128, 136

5. Infra 136

6. Infra 127, 128, 331, iv, 175

7. Infra 61, 69, 128, 130, 136

8. Infra 61, 128, 136

9. Infra 136

10. ‘dicatur’

11. Not in B.N.B.; C.R.R., xii, p. xiii

12. Infra 136, 152