Bracton: Thorne Edition: English. Volume 3, Page 77

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Volume 3, Page 77

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[001] those which belonged to the disseisee himself but those deposited with him or lent
[002] or pledged, or of which he had the use or usufruct, or which were hired to him, for
[003] all these are included in the word ‘having.’¹¹ ¹²And not only the things which were
[004] then there when the disseisin was committed, but anything which afterwards ceased
[005] to be there, as where cattle die after the disseisin;¹³ because though the disseisor
[006] loses them [without fault] he bears the loss, because that is not to be charged to the
[007] disseisee. [Thus] if buildings have been consumed by fire, their value ought to be
[008] restored¹⁴ by the assise, because the disseisor will be held liable for acts of God.
[009] ¹⁵Those things are to be restored which the disseisee had there when he was disseised:
[010] [‘there,’ that is], either in the place from which he was ejected or throughout
[011] his entire holding, because it refers to every part of the holding of which he was
[012] deprived when he was disseised.¹⁶ An account of the issues ought to be had from the
[013] day on which he was disseised; it is not reckoned back of that.¹⁷ ¹⁸So of movables
[014] which then were there, the profits are to be computed from the time he was disseised,¹⁹
[015] ²⁰and not only is an account of the profits to be had, but also of the use he
[016] would have had of all his possessions had he not been disseised.²¹ The damages are
[017] to be estimated by the judge,²² at either more or less, regard being had to improvements.
[018] But the contrary is true according to some, because the disseisor improved
[019] for his own use, not for that of the disseisee, and thus it seems that the improvement
[020] cedes to the land,²³ and since the disseisor wittingly improves another's land he is
[021] taken to have made a gift, for he knew or ought to know. But in truth improvement
[022] diminishes the damages and exonerates the disseisor to that extent, sometimes
[023] completely, as for example.²⁴ [If] the disseisor does not possess but has transferred to
[024] another, provided it is after impetration, whether the transferee has transferred over
[025] [and it has gone through] several hands or not, by this assise he who possesses at the
[026] time the assise is taken is bound to restore the thing seized, since²⁵ the thing is made
[027] litigious by diligent impetration and diligent prosecution. We must see who is bound
[028] to restore damages and who not. It is clear that those ought to share the damages
[029] who shared in the gain, that is, all the principals, so far as they are sufficient; if they
[030] are not, recourse must then be had to others, accessories and instigators.

The exception against the writ or against the jurisdiction.

[032] We have explained above what the law is if the tenant wishes to say nothing, or has
[033] nothing to say or except against the assise, why it ought to remain, permanently or
[034] temporarily. Now we must explain what happens when he wishes to allege and
[035] except, whether against the writ, the person of the plaintiff or the assise. There are
[036] some exceptions which lie against the writ and defer the assise but do not destroy it:
[037] peremptory to the writ and dilatory to the judgment.²⁶

Notes

12-13. 1.34

14. 1.35; reading: ‘licet disseisitor sine culpa amiserit damnum senserit, quia hoc non est’

15-16. 1.38

17. 1.40

18-19. 1.40

20-21. 1.41

22. 1.41

23. ‘ad terram’

24. Case omitted

25. Reading: ‘[Si] non possederit . . . manus sive non, per assisam istam ipse qui possidet tenetur . . . disseisitam, cum’

26. ‘peremptoria brevis . . . iudicii,’ from 78, line 2; infra 212