Bracton: Thorne Edition: English. Volume 3, Page 98

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Bracton Online -- English

Volume 3, Page 98

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[001] and by the negligence of the disseisee. And no matter how one is in possession in his
[002] own name, of his own property, or of another's by disseisin or intrusion, and thus
[003] rightfully or wrongfully, from the mere fact that he is in possession he has more right in
[004] the thing possessed than he who is out of possession and has no right in the thing, because
[005] of the advantage of possessing,¹ whether he is bond or free. [One may possess
[006] rightfully at the outset and then cease so to possess, by force of an agreement,² as
[007] where he is enfeoffed subject to the condition³ that he do or not do, and that if he acts
[008] to the contrary that [the donor] may lawfully enter into possession; possession is thus
[009] in suspense until the condition is or is not satisfied.⁴ He possesses rightfully who possesses
[010] by authority of the praetor,⁵ that is, by judgment, until the judgment has been
[011] found to be rightful or wrongful, and here the court may be vouched to warranty.]
[012] Therefore no matter who is in possession, rightfully or wrongfully, [if] he is disseised
[013] and brings the assise it is not necessary to inquire of him by what title or by what
[014] right he was⁶ in possession, [because it is unjust that the possessor be compelled to
[015] disclose etc.]⁷ and then whether he possesses rightfully as against some and wrongfully
[016] as against others, because, as was said above, it suffices for restitution that he
[017] was⁸ in seisin, rightfully or wrongfully, provided it was in his own name, unless the
[018] disseisor shows that he did him no injuria or that he did not disseise him wrongfully.
[019] From the answer and exception of the tenant it may be inferred whether his title of
[020] possession is to be investigated or not, but if he is asked first that is not prejudicial, in
[021] certain circumstances. When, therefore, the plaintiff says that he has been wrongfully
[022] disseised, the tenant must show that he has been disseised rightfully, for this
[023] reason, because he re-ejected him immediately after the other disseisin. To which he
[024] may replicate that it was done wrongfully because after a long interval, that where he
[025] ought to sue by the assise he made himself judge. If the tenant says that he disseised
[026] him rightfully because the plaintiff had no right, neither free tenement nor fee, because
[027] he was in by disseisin or intrusion, that will be without effect, for if the disseisee
[028] had no right to hold, he who ejected had no right to eject, because the disseisee was
[029] rightfully in possession as against him who had no right. If he says he disseised him
[030] rightfully because the plaintiff is a villein and cannot bring an assise, that is insufficient,
[031] since he is not his villein, because it is no concern of his, nor can he say that he
[032] ejected him rightfully because he is the villein of another; thus he is undefended, because
[033] it is no concern of his. Especially since [if] a villein beyond the potestas of his lord
[034] and in a free status may bring the assise against his own lord, whose villein he in truth
[035] is, a fortiori he will have a standing in

Notes

1. D. 43.17.2; supra 30, 70, infra 105, 122, 130, 134

2. Infra 145

3. ‘condicione’

4. Supra ii, 69, 71

5. D. 41.2.11

6. ‘fuit’

7. C. 3.31.11

8. ‘fuit’