Bracton: Thorne Edition: English. Volume 3, Page 83

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Volume 3, Page 83

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[001] then both the disseisor and the substitute must be named in the writ, since the substitute
[002] is bound to restore, [and to the penalty] if he avows the act of the deposed
[003] abbot,¹ and the deposed abbot to the penalty. If he was substituted after impetration,
[004] before the taking of the assise, then though he is not named in the writ he will be
[005] bound [to restore],²since the thing was made litigious by impetration before the
[006] creation of the second abbot,³ [and to the penalty] according as he has or has not
[007] avowed the act of his predecessor. If no one has been substituted before the taking of
[008] the assise, let the assise then proceed against the deposed abbot, by a writ phrased in
[009] this way, ‘that such one, canon, (or ‘monk’) formerly abbot etc.’⁴ If an abbot has
[010] been substituted before impetration, then ‘that such a one, monk, formerly abbot,
[011] and such a one put in his place etc.’ If the disseisor changes his dignity, let mention be
[012] made in the writ of his [new] dignity. If the abbot or prior who committed the disseisin
[013] dies, before impetration or after, whether before the creation of a new abbot or
[014] after, and whether the name of the deceased is expressed in the writ or not, in an
[015] action of disseisin the writ falls, and the assise is extinguished to the extent that it is
[016] penal,⁵ but is good, with respect to the abbot to be substituted to the extent that it is
[017] restitutory, without regard to whether the writ was impetrated against the former
[018] incumbent in the name of the dignity only or under both his own name and that of the
[019] dignity.⁶ Similarly, if an abbot-plaintiff dies, the writ impetrated in his name falls,
[020] [because there will be no one to answer if there is no one to complain,] since the injuria
[021] is personal.⁷ But if it is impetrated against an abbot in a proprietary action, or in a
[022] possessory action which is not penal, as in an assise of mortdancestor, and the abbottenant
[023] dies, and the writ is impetrated against him in the name of his dignity or office
[024] only, not in his own name, the writ impetrated in the name of the predecessor will
[025] always be good against the successor,⁸ because, with respect to the name of the
[026] dignity, they are the same person, because the dignity is not changed because of the
[027] diversity of persons.⁹ But if it was impetrated against him both in his own name and
[028] that of the dignity, whether the successor has the same¹⁰ name as his predecessor or a
[029] different one, the writ falls,¹¹ because though the name is the same there is a difference,
[030] because of the diversity of persons,¹² though the contrary may be seen, as where a
[031] father was called ‘Henry’ and a son or a successor by the same name.¹³ If the writ is
[032] impetrated against a predecessor who has been deposed, it is good against the substitute,
[033] whether drawn in the name of the dignity only or in both, because he could
[034] be deposed to evade it.

The exception against the person of the plaintiff; first as to status.

[036] If there is no exception to be raised against the writ, since it is completely satisfactory,
[037] not erased in a critical part, though [it may be] in the statement [of law, not] of fact,¹⁴
[038] not crossed through or defective in any other way, and in its original form, when the
[039] plaintiff's intentio has been put forward and supported

Notes

1. Supra 42, 45, infra 119, 120

2-3. Supra 82, n. 14

4. Supra 45, 49, infra 120

5. Supra 44, infra 157

6. Cf. supra 46, 81

7. Supra 55

8. Supra 44, 45, 81

9. Supra 44, 45

10. ‘eundem,’ supra 45, n. 23

11. Supra 44, 80, 81; cf. 45, 46

12. ‘personarum,’ as above

13. Cf. supra 80; B.N.B., no. 1982

14. Reading: ‘narratione iuris non in narratione facti’; Drogheda, 131; supra 78