Bracton: Thorne Edition: English. Volume 3, Page 46

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Volume 3, Page 46

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[001] whether it was impetrated against predecessors, abbots or priors, under the name of
[002] the dignity only, or both under his proper name and the name of the dignity.¹ If
[003] under his proper name, then whether the predecessor and successor have the same
[004] name or different ones, [as will be explained more fully below.]² And generally,
[005] whichever one of them dies, he who did the act or he in whose name it was done,
[006] though he avows, the writ and the assise fall and another writ will be necessary.

To whom the plaint ought to be made.

[008] It was explained above to whom the plaint of disseisin belongs and to whom it does
[009] not. We must now explain to whom it ought to be made and to whom recourse must
[010] be had when the disseisee has lost both natural possession and civil, since he may not
[011] regain seisin by his own authority when he has once lost it. The plaint ought to be
[012] made to him who has jurisdiction, as the prince, and not to everyone who has jurisdiction
[013] unless he also has coertion, so that he may order execution of his judgment.³ Not
[014] to an archbishop or a bishop or other [ecclesiastics], though they have jurisdiction
[015] in some matters, [because] they have neither cognisance nor coertion with respect
[016] to lay fee, for if an archbishop or bishop or other ecclesiastic should take cognisance
[017] of lay fee and judge with respect to it, and if that judgment were executed by them,
[018] the assise of novel disseisin would lie against them, because, though judgment has
[019] been rendered and though it is entirely just, nevertheless, since he had neither
[020] jurisdiction nor coertion in such matters, it would be of no value. If he demanded
[021] execution [of the sheriff], the sheriff would disobey them with impunity; if he executed
[022] it, he would fall into the assise with the others. But may not an ecclesiastical
[023] judge take cognisance of lay fee by reason of pledge of faith? No, because if he did
[024] he would have neither coertion nor execution of judgment, and though cognisance
[025] is taken of pledge of faith in the ecclesiastical court, because of that jurisdiction or
[026] cognisance of the principal matter, that is, of the lay fee, is not changed, [that is],
[027] because of something incident to the principal, that is, the pledge of faith; nor ought
[028] that which is primary and of greater importance to be drawn to another's, that is,⁴ a
[029] forbidden forum because of that which is of lesser importance and secondary,
[030] incident to the principal or arising out of it.⁵ Just as, conversely, by what is of lesser
[031] importance and secondary, there ought not to be drawn to the secular⁶ forum that
[032] which is of primary and principal importance in the ecclesiastical forum, as where
[033] money is promised because of a matrimonial causa; though it seems at first sight that
[034] cognisance over chattels and debts belongs to the secular⁶ forum, nevertheless,
[035] because of that which is greater and more worthy, [the marriage], cognisance of the
[036] money promised and the debt is drawn to the ecclesiastical forum, where no prohibition
[037] lies

Notes

1. Supra 44, infra 83, 120

2. Infra 81, 83

3. Supra ii, 166, 304, infra 123, iv, 248

4. ‘scilicet’

5. D. 5.1.54: ‘maior enim quaestio minorem causam ad se trahit’

6. ‘secularem’; infra iv, 249 ff.