Bracton: Thorne Edition: English. Volume 4, Page 335

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Volume 4, Page 335

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[001] a parcener is in seisin and has encumbered the land¹ by his own act, that is of no
[002] concern to his co-heirs or parceners, neither to their loss or gain.

There are some who hold in common but not as co-heirs.

[004] There are some who hold a thing in common by common consent, as parceners capable
[005] of inheriting but not as co-heirs, as where by common consent they relegate
[006] waste land for the common welfare, for pasture or for some other benefit or use; if
[007] they claim, the same exception will lie against them as against heirs, that one may
[008] neither sue nor answer without the other. A thing may indeed be common among
[009] several persons for many reasons, as above.²

The exception that a husband not be answered without his wife whose inheritance the thing claimed is, but not conversely. If he who claims has no action.

[011] The tenant also has a dilatory exception arising not from the person of the demandant,
[012] that he cannot sue, but from the person of one conjoined to him without whom
[013] he cannot sue, who are not parceners, each so to speak, taking a part, because when
[014] the thing claimed is recovered it is not divided between the demandants, as between a
[015] husband and wife, who are, so to speak, a single person, because they are one flesh
[016] and one blood, but the thing is the property of the wife, and the husband its custodian,
[017] since he rules his wife, in which case no answer will be made the husband without his
[018] wife nor conversely. A peremptory exception is given the tenant with respect to the
[019] demandant but not against him who has right, as where one claims in his own name
[020] when he ought to claim in another's, as³ a villein [or] a fructuary who has no action,
[021] or⁴ as a simple canon or monk, who⁵ are removable and not perpetual, in which case
[022] the action and the writ fall in his person and the action is good in the person of the
[023] other, by another writ.⁶

The exception that he cannot answer without the assent of such a one, a superior.

[025] A dilatory exception is given the tenant against the demandant, though the whole
[026] action belongs to him, because of the authority⁷ of a superior, without whose consent
[027] and authority he cannot sue, as a dean and chapter [they can make no settlement or
[028] compromise, nor change their estate, nor can rectors of churches⁸ with respect to
[029] the property of his church,] without the consent of the bishop. There are many

Notes

1. ‘terram’

2. Supra 160, 168; infra 376

3. Om: ‘si’

4. ‘vel’

5. ‘qui’

6. Supra 330

7. ‘auctoritatem’

8. ‘ecclesiarum’