Harvard Law School Library

Bracton Online -- English

Previous   Volume 2, Page 320  Next    

Go to Volume:      Page:    




That suit must first be brought on the possession rather than on the property.


[002] 1And that possession rather than property must first be dealt with2 and that a
[003] possessory action must take precedence though in the end the property must
[004] prevail,3 may clearly be seen. For suppose that the justices first pronounce upon
[005] the property and the right rather than on the possession; if they later wish to
[006] take cognisance of the possessory issue between the same persons they achieve
[007] nothing, for the plea of right which was tried4 between the same parties with
[008] respect to the same tenement extinguished any recognition between them for
[009] claiming the plaintiff's own or another's seisin of the same tenement, because a
[010] plea de recto determines both rights, possession as well as property,5 as [in the roll]
[011] of Trinity term in the third year of king Henry in the county of York, an assise
[012] of mortdancestor [beginning] ‘if William the steward.’6 And so if two implead one
[013] defendant, the first by a recognition in a possessory action and the other by writ of
[014] right in a proprietary one, the plea by writ of right will be in suspense7 until it is
[015] clear to whom the possession ought to remain, no matter in what court the plea
[016] of right is pending, that of the lord king or the county court. If by the recognition
[017] possession remains to the tenant, let the plea on the right then first proceed between
[018] them; if the tenant loses by the recognition the writ of right falls, and let the
[019] demandant sue against him who succeeded in the recognition. But though the
[020] prosecution by writ of right is thus put in suspense by the recognition, the
[021] demandant in the writ of right will always put in his claim against whomever the
[022] judgment shall favour in the possessory suit. And that if violence is involved the
[023] question of possession must be heard before that of property, is proved by
[024] D. 48.6.5.1,8 where it is said that if a complaint is made concerning force and
[025] possession or ownership, the issue of force must be dealt with before that of ownership,
[026] and even before that of ownership or possession. There is also another reason,
[027] because9 he who wishes to claim a thing, if he orders his affairs prudently, ought
[028] first to see whether he can in some way secure possession, since it is more advantageous
[029] to possess than to claim.10 There are many in possession who can protect
[030] themselves by an exception, but who, once they are out of possession, will seldom
[031] if ever recover by action. 11With regard to the general rule that he who first claims
[032] by writ of right cannot thereafter descend to lesser actions, we must see how he
[033] has used the writ. Some say that if the demandant has so far proceeded by writ
[034] of right that the tenant has been summoned and on the summons essoined, that
[035] this is enough



Notes

1. Br. and Azo, 202-3, 205-6

2. Tancred, 164: ‘et ordinarium est ut causa possessionis prius tractetur’; Drogheda, 350: ‘primo debet iudex pronuntiare de possessione et postea de proprietate’

3. ‘debet proprietas praevalere’: X 2.12; ca. 6

4. ‘praecessit,’ OA, LA, OC

5. Supra 297; infra 323, iv, 284

6. B.N.B. no. 37; no roll extant

7. ‘suspendetur’; infra iv, 290

8. Properly: ‘l. qui coetu, si de vi’

9. ‘quia’

10. Tancred, 164: ‘qui rem petere destinavit, videre debet an aliquo interdicto nancisci possit possessionem, quoniam commodius est possidere quam petere, ut D. 6.1.24’; Drogheda, 58, 199

11. New paragraph


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College