Bracton: Thorne Edition: English. Volume 4, Page 285

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 285

Next

Go to Volume: Page:

[001] by which both may¹ be determined, the act itself as well as the means and quality,
[002] for the principal matter ought always be decided first, with which the accessory may
[003] be decided. For example, if one has been disseised of a tenement by force and arms
[004] and impetrates a writ quare vi et armis, it ought not to be good, because the question
[005] is then one as to the kind of disseisin, not as to the thing itself, that is, the tenement
[006] for which the force took place, nor does the plaintiff acquire any part of that tenement.
[007] But if several writs are impetrated with respect to a single act which gives rise
[008] to several actions, as several disseisins, and they may be determined by one writ and
[009] one action, if that is so done, the other writs and actions do not fall but are determined,
[010] and will henceforth be superfluous.² Note that an exception may be peremptory to
[011] the writ and not to the right, because sometimes one action³ for recovering the thing
[012] is changed to another because of the privilege of heirs; the writ on the possession falls
[013] completely and he is thrown back to the right, [because] the assise of mortdancestor
[014] does not lie between coheirs and persons connected by blood, only the writ of right.⁴
[015] Also [an exception] may be peremptory both to the writ and to the right, by the
[016] exception of res judicata, of recognition, of remission and quitclaim. In every case
[017] where an action is destroyed, the writ is destroyed, but not conversely, as was said
[018] above.⁵

What a writ is, and which are original and which magistral.

[020] ⁶A writ is formed in the likeness of a rule of law, since it briefly and in a few words
[021] expounds and explains the intentio of him who puts it forward, like a rule of law,
[022] [which] expounds the matter briefly.⁷ It ought not, however, to be so brief as not to
[023] contain the reason and gist of the intentio. Some writs are formed on specified cases
[024] and are of course. They are granted and approved by the counsel of the whole realm
[025] and can in no way be changed without their consent and agreement.⁸ There are also
[026] writs following from them, called judicial writs, which are often varied according to
[027] the variety of pleas

Notes

1. ‘possit’

2. Supra ii, 324

3. ‘actio’

4. Supra iii, 269, 311

5. Infra 288

6. Supra i, 167 (full collation)

7. D. 50.17.1: ‘Regula est quae rem quae est breviter enarrat’; supra ii, 318

8. Supra ii, 21, infra 289