Bracton: Thorne Edition: English. Volume 3, Page 49

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Volume 3, Page 49

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[001] [or after the disseisee, immediately after the disseisin and before the thing has been
[002] transferred, has set out toward the court for the purpose of impetrating, since in
[003] that way a tenement is also made litigious, [since] it is more effective to appeal by
[004] act than by word,¹ whether the journey was begun at once or after an interval, as
[005] long as the disseisee has been diligent in impetrating and prosecuting so that no
[006] negligence may be imputed to him,] those to whom the thing has been transferred
[007] need not be included in the writ, regardless of its date, because since they know, or
[008] can and ought to know, that the disseisee has been diligent in impetrating and
[009] prosecuting, they ought consequently to know that the thing was made litigious,²
[010] and also that time does not run against the disseisee since he is neither indolent
[011] nor neglectful of his right.³ After such diligence, therefore, no matter into whose
[012] hands⁴ the thing has come, the writ does not fall, nor will it be necessary to impetrate
[013] again and include them in the writ, because whether they are named or not, whether
[014] the thing is transferred to them immediately or after an interval, they are always
[015] bound to restore, [nor ought time to be allowed them after the assise has been taken,
[016] nor judgment deferred by which restitution to the disseisee is delayed, since all
[017] are guilty of culpa and disseisin, because of the immediate transfer as well as because
[018] of a thing made litigious by diligent prosecution. I say this because some are accustomed
[019] to defer judgment in order that while such persons are in seisin they may
[020] provide for themselves to the extent of⁵ escambium by writ of warrantia [cartae],⁶
[021] since they cannot be provided for by the judge acting ex officio.] [for]⁷ the assise always
[022] proceeds against him who held at the time of impetration and⁸ diligent prosecution.
[023] Suppose that one has impetrated diligently and the writ falls because of some defect,
[024] perhaps because it was ineptly conceived or was defective in some other way so that it
[025] cannot stand. [If] the disseisee at once begins the impetration of another, [and] if,
[026] while the second impetration is pending, the tenement is transferred to another,
[027] the disseisee having been diligent in impetrating and prosecuting, the transfer will
[028] not make it necessary to name those in the writ to whom the tenement is transferred,
[029] because, as in the first⁹ case, the first and principal will always answer without them.
[030] Nevertheless the disseisee may join them all if he wishes. If the disseisee is diligent in
[031] impetrating but negligent in prosecuting, his negligence continuing for some time,
[032] because he suppresses the writ or fails to prosecute for some other reason though
[033] he could,¹⁰ by his negligence and mora the thing which at the outset was litigious by
[034] diligent

Notes

1. C. 4.22.4: ‘plus actum quam scriptum valet’

2. Supra 41, infra 120

3. C. 7.40.3.3; supra 47

4. ‘quemcumque’ all MSS

5. ‘quoad’

6. Supra 23, 41, 48, infra 58

7. ‘quia’

8. ‘et’

9. ‘quia sicut in primo’

10. ‘posset’