Bracton: Thorne Edition: English. Volume 3, Page 51

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Volume 3, Page 51

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[001] or both, or he to whom the thing has been transferred, some of them or all.¹ [We must
[002] then see whether it was] before impetration of the writ or after: if before, then when
[003] the disseisee could have sued without difficulty had he so wished, but did not,² or
[004] though he wished could not, prevented by illness or anticipated by death,³ or hindered
[005] by some other lawful and legitimate intervening impediment, or after impetration
[006] and diligent prosecution so that the view was had and the jurors chosen.⁴
[007] [In all these cases the disseisee [or his heir] is aided by a writ of entry according to the
[008] forms to be noted below,⁵ both with respect to the possession of corporeal things and
[009] of rights, that is, incorporeal things, as the right of pasturing and the like, of using and
[010] enjoying.]

If the thing seized is transferred to another by the causa of gift with the consent of the disseisor, and the disseisor disseises his feoffee.

[012] It often happens that he who commits a disseisin transfers the thing seized to another
[013] by some justa causa of acquisition, and when the disseisee brings the assise of novel
[014] disseisin against him, fearing the assise, he despoils his feoffee, so that his feoffee
[015] brings the assise against him. Thus two disseisins run against one and the same
[016] person; both disseisees seek restitution by the assise against the same disseisor,
[017] for both of whom the assise lies. We must then see to whom restitution ought first to
[018] be made. It is clear that cognisance must always be taken of the last disseisin and
[019] then of the first, as will appear below by an example. But suppose that the first
[020] disseisor [B.], when he disseises his feoffee [C.], restores the thing to the true lord,
[021] [A.], the first disseisee, before [A.] has impetrated a writ against him, after a long
[022] interval or immediately. ⁶He who was last disseised by his feoffor [C.] must bring the
[023] assise against both, and when he has recovered against both the first disseisin
[024] disappears and the first disseisee [A.] will not recover his seisin, [except by a writ of
[025] entry,] which, as is evident, would be inequitable since both the disseisor [B.] and
[026] the first disseisee [A.] are alive.⁷ The matter must therefore be ordered by the judge
[027] acting ex officio, so that, whatever is done, seisin remains with the first disseisee, and,
[028] an inquiry having been made into the second disseisin,⁸ [that the disseisor], after the
[029] truth has been investigated by a jury, if it is established that the feoffee [C.] was
[030] disseised by his feoffor [B.] contrary to his deed, provide him [C.] escambium to the
[031] value, for if the feoffee, the second disseisee, should recover by judgment against
[032] the true lord and⁹ the true lord should claim by the assise against his disseisor [B.]
[033] alone, or against both, the exception of res judicata raised by the feoffee in possession
[034] [C.] would bar him, and thus he would never recover by the assise, which would be
[035] inequitable, unless his negligence ought to foreclose him. If the tenement remained
[036] with the feoffee

Notes

1. Om: ‘vel’; infra 200

2. Infra 158, 159, 201

3. D. 24.2.6; supra 49, infra 201

4. Supra 47, infra 157, 158, 159, 174

5. Infra 159, 200

6. New sentence

7. Infra 55

8. ‘disseisina’

9. ‘et’