Bracton: Thorne Edition: English. Volume 4, Page 344

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Bracton Online -- English

Volume 4, Page 344

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[001] he has aliened and transferred the thing sought to another after impetration, for he
[002] may well be unaware of the impetration. And the demandant may be negligent in
[003] prosecuting. The tenant may alien without fraud before impetration, or after impetration
[004] and after summons, provided he is not anticipated by the summons, as
[005] where he betakes himself¹ to parts beyond the seas, or to parts so remote that he has
[006] no knowledge of the summons, and there aliens; he is not punished. If he acts otherwise,
[007] he ought, in the cases above, to be taken as possessor, especially if he aliens
[008] after the summons has been attested and proved, as [in the roll] of Michaelmas term
[009] in the fourth and the beginning of the fifth years of king Henry.² If [it is alleged that]
[010] after impetration an alienation has been made, while the inquest [as to that] is
[011] pending the writ will be in suspense; it stands or falls according to the result of the
[012] inquest: as [in the roll] of Trinity term in the [eighth] year of king Henry in the
[013] county of Oxford, [the case] of Josce de Plugenay.³

If he has been anticipated by the summons.

[015] If he was anticipated by the summons, so that he knew or ought to know, he will be
[016] held as the possessor, whether his donee has taken possession or not. He may reply
[017] that he does not hold the whole body of the manor because such a one holds so much
[018] of it, whence he has nothing, in demesne or in service, or if the manor is claimed with
[019] the appurtenances, either in alms or in advowsons.⁴ The demandant will then have
[020] to show the contrary by an inquest. Though at the time of the impetration and summons
[021] the tenant held nothing, he will answer provided he afterwards begins to
[022] possess. When the body of a manor is claimed in demesne, the tenant may answer
[023] that he holds nothing in demesne but the whole in service; if that is the case, the writ
[024] falls and the action as well, because the tenant cannot lose in demesne what he only
[025] holds in service. When the demandant claims the whole in demesne, the tenant may
[026] answer and acknowledge that he does not hold the whole in demesne, but partly in
[027] demesne and partly in service; in that case it seems that the writ falls completely,
[028] but the action only for the part he does not hold in demesne, unless, as some believe,
[029] the demandant can alter his declared intentio to this extent, that he may claim in
[030] demesne what the tenant holds in demesne and in service what the tenant

Notes

1. Reading: ‘ante impetrationem, vel post impetrationem et post summonitionem, dum tamen . . . non sit, ut si se transtulerit’

2. C.R.R., ix, 306-7 (Sussex); not in B.N.B.

3. C.R.R., xi, no. 1663; not in B.N.B.

4. Reading: ‘ipse nihil [habet] nec in dominio nec in servitio, [vel si] manerium petatur cum pertinentiis, nec in elemosina nec in advocariis’