Bracton: Thorne Edition: English. Volume 3, Page 52

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Volume 3, Page 52

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[001] as against the owner, it would follow that the first disseisee [A.] would have escambium
[002] for the property he ought rightfully to have in demesne, which would likewise
[003] be inequitable. [Thus] whosever assise comes first, the judge, acting ex officio, his
[004] power being very broad in scope,¹ will always intervene, that equity be distinguished
[005] from iniquity,² to provide, by counsel of the court or by the judge acting ex officio, the
[006] two being identical, that seisin of the thing remain with the true lord and not with
[007] him enfeoffed by the disseisor. That escambium ought to be given to the feoffee may
[008] be found [in the roll] of the eyre of William of Ralegh in the county of Middlesex and
[009] of Trinity. term in the thirteenth year of king Henry, an assise of novel disseisin
[010] [beginning] ‘if John Cabbus wrongfully disseised Emma Duredent,’³ judgment
[011] being given before the king and his council. The case is this:⁴ A. gave B. the service of
[012] C. who held of him freely. The same B., using as a pretext the gift made to him by the
[013] aforesaid A. of the service of the same C., disseised the same C. of the tenement he
[014] held in demesne, from which the same B. by reason of that gift could claim nothing
[015] except service. After the same B. had held that tenement in his hand for some time,
[016] he gave it to a certain D, after the impetration of the writ which the same C. had
[017] impetrated against the aforesaid B. who had disseised him of the same tenement. In
[018] the process of time the same B., fearing the assise which the aforesaid C. had arraigned
[019] against him, disseised the same D. of the aforesaid tenement and restored it to the
[020] same C. Then D., who was last disseised, arraigned an assise of novel disseisin against
[021] both. But if D. should recover by the assise, how will C. the true lord be provided for,
[022] whose tenement it originally was and who was first wrongfully disseised, for if D.
[023] should recover by the assise and C. sue on the first disseisin against B., his disseisor,
[024] or against both B. and D., the exception of res judicata put forward by D. will bar
[025] him and thus he will hardly recover⁵ [anything more than] escambium, when he
[026] ought to have the thing itself in demesne. It was decided coram ipso rege that before
[027] the aforesaid D., the last feoffee and disseisee, recovered, that B. should warrant
[028] to the aforesaid D. his deed and the gift made him of the aforesaid tenement, so that
[029] the same D. should have escambium to the value from the tenement of the same B.
[030] ⁶<without another writ, by the judge acting ex officio and by counsel of the court,>
[031] and C. hold his tenement in peace. Assuming the facts of the first case, if, after disseising
[032] D., B. retains the tenement in his hand and does not restore it to the said C.

Notes

1. Supra ii, 282

2. Supra ii, 305

3. B.N.B., no. 339

4. ‘Casus talis est,’ from line 12

5. ‘recuperabit’

6. Supra i, 393