Bracton: Thorne Edition: English. Volume 3, Page 70

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Volume 3, Page 70

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[001] his seisin, as where another wishes to use the thing against his will, in a word, the
[002] kind of disseisin. Also the means, whether it was committed at night or by day,
[003] with arms or without, with robbery or without it, and the particular circumstances.
[004] Also, though the plaintiff's possession has no lawful beginning, as where he is in by
[005] disseisin or intrusion, or through a gift made by a non-lord of a thing belonging to
[006] another, we must enquire as to how long he has been in possession, for a long or a
[007] short time, and who has ejected him, a stranger with no right at all, or the true lord,
[008] or his feoffor, because of the advantage of a possessor, since he who possesses,
[009] though he has no right, is in a stronger position, because he is in possession, than he
[010] who has no right and is out of possession;¹ for he who is thus in possession has a free
[011] tenement at once as against his feoffor and strangers, without any interval of time;
[012] as against the true lord only after an interval which may suffice for title, so that he
[013] cannot be ejected without judgment. Nor does any exception against the assise,
[014] of tenuous seisin or of free tenement, lie for such persons: not for the feoffor of another's
[015] property, because of his own act; not for strangers, because they have no right;
[016] not for the true lord, because of the elapsed time, because he disseised him after a
[017] time, without judgment. For these reasons, and those noted immediately above,
[018] enquiry must be made of the disseisor, when one possessing in that way, with no
[019] rightful origin, has been disseised wrongfully and without judgment, or, if not
[020] wrongfully per se, wrongfully because without judgment, as to the kind of entry he
[021] had in that tenement, in order to ascertain whether an exception against the assise
[022] lies for him or not, [for] though the plaintiff cannot show that he has a free tenement,
[023] or that he is wrongfully ejected, nevertheless the tenant must show the contrary,
[024] that he is rightfully ejected, that he put himself in seisin rightfully and not wrongfully,
[025] that is, with a just judgment or in the other way, at once, [as] in the cases
[026] noted above.²<If the tenant alleges that he [entered] rightfully and with the consent
[027] of the plaintiff, that does not suffice, because a man may enter by consent but
[028] afterwards, in a variety of ways, hold himself in seisin wrongfully and against the
[029] plaintiff's will, as by force or contrary to an agreement.>

Questions having been put by the justices to the plaintiff, the tenant must be asked whether he has anything to say as to why the assise ought to remain.

[031] Enquiries having been made, as aforesaid, a procedure neither fatuous nor presumptuous,
[032] let the tenant then first be asked whether he wishes to allege any reason
[033] why the assise ought to remain. [From the questions asked earlier he will be given
[034] matter for his answer. There are some who ask the tenant [at once] whether he has
[035] anything to say against the assise, a question which must not be put at the first,
[036] as was said a little above.]³ When that has been asked,

Notes

1. D. 43.17.2; Drogheda, 58; supra 30, infra 98, 122, 134

2. Supra i, 395

3. Supra 69