Bracton: Thorne Edition: English. Volume 3, Page 56

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Bracton Online -- English

Volume 3, Page 56

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[001] one who recovered by judgment of his court; if he vouches his court to warranty it
[002] ought to be heard and let the record come, for if the court has judged incorrectly it
[003] will be held to the penalty, not he, though he is bound to restore.¹ But this exception
[004] may be raised: is not the lord bound to a penalty when the court has decided incorrectly
[005] and he has entered into the tenement immediately after the judgment,
[006] thus becoming a disseisor together with the court, just as another who enters immediately
[007] after a disseisin, through the disseisor and with his consent or against his
[008] will by disseisin? ²When one so enfeoffed after a long interval vouches a warrantor
[009] and has been warranted, by judgment or in some other way, by that warranty the
[010] thing seized is now quasi-transferred to him, so that he who committed the disseisin
[011] may restore it to the plaintiff, which he could not do before the warranty, and so the
[012] feoffee will be freed completely and the disseisor-feoffor³ held to restitution and likewise
[013] to the penalty for disseisin, and thus by the warranty all is brought back to the
[014] time the disseisin was committed. It is submitted that this may always be done, no
[015] matter to whom the thing has been transferred after the disseisin, one or several,
[016] them or their heirs, as long as the principal persons survive, that is, the disseisee and
[017] the disseisor who aliened. When one of them dies, however, the action is extinguished
[018] to the extent that it is penal. But when the disseisor transfers the tenement to
[019] another, immediately or after an interval, and the disseisor and the disseisee are still
[020] alive, quaere whether the disseisee may claim the tenement against the tenant by a
[021] writ of entry, the disseisor being still alive, as he could if he were dead, and claim
[022] restitution and remit the penalty for disseisin, as could one who has a criminal
[023] action against another, [where] it will be in his discretion to proceed criminally or
[024] civilly? No, because if a warrantor [the disseisor] is vouched, as aforesaid, the action
[025] could thus become a penal action though brought civilly, which cannot be determined
[026] by this writ.>

The plaint heard, let the king send the writ to the sheriff.

[028] The plaint having been heard by the superior whose duty it is to halt violence and
[029] wrong⁴ and to whom recourse must of necessity be had, he will send his writ to the
[030] sheriff, which will contain both the names of the plaintiff and him of whom complaint
[031] is made, whether one or several, and the form of the plaint, according as it has been
[032] made to him who protects rights,⁵ in these words.

Notes

1. Infra 122-3

2. New paragraph

3. Om: ‘Idem et’

4. D. 1.1.3: ‘ut vim atque iniuriam propulsemus’

5. C. 3.28.35.pr.