Bracton: Thorne Edition: English. Volume 3, Page 80

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Volume 3, Page 80

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[001] as to the person, though not in the name or surname, as when a father and son are
[002] called by the same name and surname and the father is disseised; if the son impetrates
[003] under the same name for the disseisin done the father he will not recover, because the
[004] injuria was not done to him but to the father, and thus he will not have the plaint
[005] but the father, had he lived, and though he has the same name and surname, he is a
[006] different person, not him to whom the wrong was done.¹ And so if a son called by the
[007] same name as his father [is sued] for the disseisin and deed of his father after the
[008] father's death. For a disseisin done to his father, [he may] aid himself, if he wishes, by
[009] a writ of entry.² There is an error in the action where one believed an action to lie
[010] which did not lie.]³

Of error as to the person: the person himself or his office.

[012] That there may be fuller knowledge of the matters in connexion with which error
[013] arises, it is clear that error is sometimes connected with the person (either the person
[014] himself or his office), the thing or the action. With regard to the person, error occurs
[015] in two ways, sometimes through the unskilfulness or negligence of the impetrator,
[016] sometimes through the deceit of an adversary: the unskilfulness of the impetrator, as
[017] where one calls another ‘Peter,’ when he ought to call him ‘Roger’; because of an
[018] error of that kind the writ falls, for many reasons; ⁴ <And so if a person has two names,
[019] whether the error is in his proper name or his surname. ⁵ That name must be adopted
[020] by which he is more frequently accustomed to be called, for names are given to things
[021] to show the intention of him who speaks and we make use of speech as a servant.>⁶
[022] and so if there is an error in the given name, the surname or the family name.⁷ So
[023] if there is an error in the name of the species, as where one calls a thing clothing
[024] when he ought to call it money.⁸ The deceit of an adversary, that is, when an adversary
[025] deceitfully alters the possession, in the absence of the impetrator, so that
[026] on his return, finding a new possessor, he cannot sue or implead him, there being no
[027] mention made of him in the writ. [It seems that he cannot, because he is not named
[028] in the writ and for many other reasons, but the truth is that he may and ought to
[029] answer, otherwise, if he could not be sued, he who altered the possession could profit
[030] from his wrongful act,⁹ and for many other reasons. Therefore both may be sued
[031] together or each alone, even though the transfer is made before the writ comes to
[032] the justices or the sheriff, provided there is diligent prosecution. And so if the thing
[033] is transferred to another after judgment.]

Of error with respect to name and dignity

[035] There may be error as to an office or a dignity: [a dignity] as where one calls another
[036] ‘precentor’ instead of ‘dean,’ or conversely, or ‘deacon’ instead of ‘priest,’ [but
[037] not] conversely, since ‘priest’ includes both dignities;¹⁰ as to an office, as where one
[038] calls another ‘coroner’ instead of ‘sheriff,’ or conversely. The name of the dignity

Notes

1. Infra 83

2. ‘[Possit] si velit . . . ingressu’

3. Supra 79, n. 10

4. Supra i, 395

5-6. D. 33.10.7.2.: ‘nisi ut demonstrarent voluntatem dicentis . . . ut maxime nomine usus sit quo id appellari solet: nam vocis ministerio utimur’

7. Inst. 2.20.29; Drogheda, 133

8. Drogheda, 134

9. Ibid., 128: supra ii, 133

10. ‘Item si diaconus . . . dignitatem,’ from 81, lines 13-14; om: ‘non expresso proprio nomine’