Bracton: Thorne Edition: English. Volume 3, Page 75

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Volume 3, Page 75

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[001] judgment in the judge. But it seems that judgment sometimes belongs to the jurors,
[002] since it is for them to say on oath, or at least¹ according to conscience,² whether he did
[003] or did not disseise him, and judgment is rendered accordingly. But since it is the
[004] judge's duty to render just judgment and [ius] reddere, he must examine diligently and
[005] consider whether the verdicts of the jurors are true, or³ if their judgment is false⁴ or
[006] foolish, lest if he follow their verdict and their judgment he render a false or foolish
[007] judgment. For there is a false or foolish verdict,⁵ and thus there may be a false or
[008] foolish judgment, as will be explained more fully below [in the portion] on convictions.⁶
[009] [The writ says] that the sheriff cause the tenement to be reseised of the
[010] chattels etc. and the tenement to be in peace. That is not observed in these days,⁷ but
[011] in place of that clause the judge ought to see that all damages are restored to the disseisee,
[012] [that is], when it is established to the satisfaction of the justices by the oath
[013] of the jurors that a disseisin has been committed. He ought to be sufficiently diligent
[014] in this matter, that damages be restored with the thing itself, lest by his negligence
[015] future disseisors be given the desire and the means for offending by disseisin,⁸ and
[016] lest from another's damage they obtain gain or advantage.⁹ We must see what ought
[017] to be restored to the disseisee. It is clear that it is the thing itself, with all the profits
[018] taken in the interim, that is, from the time of the disseisin to judgment, those taken
[019] or to be taken,¹⁰ ¹¹<[Reseised of the chattels taken from it],¹² because though one
[020] commits a disseisin, he ought not to lose his own chattels brought and carried into¹³
[021] the tenement. That the tenement be in peace is not said without reason,¹⁴ because
[022] from [the time] that the sheriff receives the king's writ the tenement must not be
[023] transferred to another, nor the injuria diminished or increased, but all ought to
[024] remain in peace until the taking of the assise.>¹⁵ that is, if he has been completely
[025] ejected from the tenement. If he is hindered from using it quietly and in peace,
[026] though not ejected completely, he will recover peace and quiet principally¹⁶ and
[027] beyond that, secondarily, all the damages sustained by reason of the aforesaid
[028] hindrance. And so if, though not ejected completely, another uses his property
[029] against his will; he will recover freedom and quiet and have the servitude removed.
[030] He will also recover all damages sustained through the aforesaid wrongful use.

Of the manifold penalty of the disseisor.

[032] The disseisor will suffer a triple penalty for his disseisin, sometimes a fourth.¹⁷ The
[033] first is this, he will be in the lord king's mercy, and the amercement will never be
[034] less than the damages are found to be.¹⁸ He will suffer [corporal] punishment, heavy
[035] or light, depending upon the kind of disseisin and the means used, as where it was
[036] with arms or without them, because of the peace.¹⁹

Notes

1. ‘vel saltem’

2. Supra 63, 74, infra 338

3. ‘vel’

4. ‘falsum’

5. ‘dictum’ or ‘sacramentum,’ supra 58

6. Infra 337

7. Supra 58

8. Supra ii, 369, 427: C.23, qu.4, ca.33

9. D. 5.3.38: ‘ex aliena iactura lucrum facere;’ infra 76; D. 4.3.28

10. Infra 77

11. Supra i, 395

12. The words of the writ: supra 57

13. ‘invecta et illata’: D. 2.14.4; supra ii, 183

14. Supra 57

15. Supra 58

16. Supra 26, 28, infra 129

17. Supra 18

18. ‘et numquam . . . damna,’ from last line. ‘Item poenam habebit’

19. ‘propter pacem,’ from 76, line 2; supra 67. The third: a pecuniary penalty because of the wrongful detention: supra 18