Bracton: Thorne Edition: English. Volume 3, Page 42

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Volume 3, Page 42

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[001] one has been enfeoffed¹ after a long interval, or has disseised the disseisor of the
[002] thing seized after an interval, and is not named in the writ, he need not answer unless
[003] he so wishes. If he wishes to do so of his own accord he suffers no injuria, because of
[004] his agreement. Not only one but several fall into the assise, some principally and some
[005] secondarily: who are principal disseisors and who are not will be explained below.²
[006] Not only he who acts in the name of another, but he in whose name the act is done,
[007] falls into the assise, provided he avows the act and injuria of his people and makes it
[008] his own. One may eject with his household, just as he may without it, and similarly
[009] his household may eject without him. A lord [may eject] with his household whether
[010] he is present or absent: absent as where, not being present, he orders or commands,
[011] and thus furnishes authority³ ab initio, [or], not being present, neither ordering nor
[012] commanding nor authorizing from the beginning, by ratifying ex post facto, or not
[013] amending the injuria when redress is demanded, as was said a little above.⁴ In that
[014] case the principal will not be bound without the secondaries, nor conversely, because
[015] each falls into the assise with the other: the household cannot restore without the
[016] lord, because by their act he is in seisin, though they are liable for the penalty.
[017] When he avows, however, the lord makes the injuria his own and thus is held to
[018] both, restitution and the penalty.⁵ If he disavows and amends the injuria of his
[019] people, he will only be held to restitution. He who avows the act and injuria of
[020] his people [He who ejects [at another's command] is no more excused in this case,
[021] with respect to the disseisin, than he would be excused of homicide⁶ had he killed
[022] at another's command, since in this matter lords must not be obeyed nor does the
[023] authority of a superior excuse.] is no more excused [than he] who ordered, or he
[024] who gave counsel, [that is], if the wrongful act is carried into effect, otherwise not.⁷ ⁸It
[025] makes no difference whether one ejects with his own hands or through another, and
[026] hence if my household ejects at my instigation I am taken to have ejected,⁹ and so
[027] if my procurator ejects,¹⁰ and the action must be against all. ¹¹But if the procurator
[028] who ejects is unauthorized, the action will not be against me but him,¹² ¹³except when
[029] I ratify his act, because ratification is here the equivalent of a mandate.¹⁴ ¹⁵For it is
[030] rightly said that in maleficium ratification is the equivalent of a mandate.¹⁶ And note
[031] that the term ‘household’ embraces more than two persons, bondsmen or others,
[032] three or several,¹⁷ ¹⁸but even if only one ejects, the household will still be taken to
[033] have ejected.¹⁹ ²⁰The term household also includes those who occupy the place of
[034] servants,²¹ as hired labourers and workmen. Also free men as well as bondsmen,²²
[035] whoever may be commanded. Among other things we must see who it is that ejects,
[036] a prince by virtue of his power or another

Notes

1. Om: ‘ante impetrationem’

2. Infra 118

3. Supra ii, 305

4. Supra 41

5. Infra 119, 120, 170

6. Reading: ‘Ille qui iussu deicit non magis . . . ad disseisinam quam excusaretur ab homicidio’; D. 43.16.1.13: ‘non enim excusatus est, qui iussu alicuius deiecit, non magis quam si iussu alicuius occidit’; cf. Barton in Tulane L. Rev., xlii, 582

7. Supra ii, 361, 392, iii, 21; cf. ii, 334, 342

8-9. D. 43.16.1.12

10. D. 43.16.1.13

11-12. D. 43.16.1.13

13-14. D. 43.16.1.14

15-16. D. 43.16.1.14

17. D. 50.16.40.3: ‘Unicus servus familiae appellatione non continetur: ne duo quidem familiam faciunt’

18-19. D. 43.16.1.17; ‘etiamsi,’ as D.; Barton in Tulane L. Rev., xlii, 575

20-21. D. 43.16.1.18

22. D. 50.16.40.2: ‘Familiae appellatione liberi quoque continentur’