Bracton: Thorne Edition: English. Volume 2, Page 322

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 322

Next

Go to Volume: Page:

[001] one must be brought,¹ and having elected one he may not have recourse to the
[002] others while the first is pending,² fails when several civil actions are brought by
[003] one party against one [or several] for several different things. He may first put
[004] forward one, whichever he wishes, or³ proceed upon them all at the same time,
[005] [except]⁴ in four cases. The first is when one has several actions, [or two touching
[006] the same thing,]⁵ which are contrary to each other; if he brings both he ought not
[007] to be heard, no more than if he had alleged two contrary things. He must of
[008] necessity, therefore, elect one, whichever he wishes, because they are repugnant to
[009] one another and cannot stand together, since one excludes the other, as if one
[010] should at the same time seek a piece of land in demesne and for a term. The second
[011] case is where the one first put forward is dependent upon the other and ought to
[012] be brought after it, in proper order,⁶ as where one claims as heir a debt connected
[013] with an inheritance before he has proved himself heir, wishing the question as to
[014] whether or not he is heir to be discussed subsequently. For such a claim is preposterous.
[015] [And so if he wishes to recover the interest on a sum before he has
[016] proved that the principal is owed him.]⁷ And so if one has a claim to an estate by
[017] rei vindicatio and wishes to take the fruits or gather the crops at once, before he
[018] has acquired the estate, or wishes to sue for the fruits before the first action touching
[019] the principal matter is determined, he must be denied his second action on the
[020] fruits. He must first settle the principal matter by the first action, whose the estate
[021] ought to be, and then settle the question of its appurtenances. Thus it appears, for
[022] the reasons aforesaid, that if one claims a manor with the appurtenances to which
[023] an advowson is appurtenant, and while the plea as to the manor is pending,
[024] before it is proved whose the manor ought to be, the church falls vacant and he who
[025] is claiming the manor presents, before the principal issue is determined, [if his
[026] presentation is impeded] and he wishes to sue he will not be heard by a writ of
[027] quare impedit or darrein presentment.⁸ Actions of this sort are infinite. The third
[028] case is when the second of the two is prejudicial to the first, which is the converse
[029] of the preceding⁹ case, as where I claim from you the Titian estate, which you
[030] possess, and you deny that the land is mine, and I also claim a right of way to the
[031] same Titian estate through the Sempronian estate which belongs to you.¹⁰ I am
[032] not to be heard in this second action on the right of way because it prejudges the
[033] first, and because we must first determine who the owner of the Titian estate is,
[034] to which the right of way is appurtenant. And so if I claim from you [an undivided
[035] portion in]¹¹ an estate, and, before that is proved, while the action is pending,
[036] I wish to bring an action for partition of the same;¹² I am not to be heard, because
[037] by this action of partition the first action for the recovery of the principal thing is
[038] prejudged. The fourth case is where the actions proposed are such that one is
[039] destroyed by the election of the other, as where I sue in

Notes

1. D. 50.17.43.1 and the Digest citations infra 323

2. Supra 297, 319

3. ‘vel’ for Tancred's ‘aut,’ Tancred, 190, n. 2

4. ‘nisi,’ as Tancred

5. Supra 319 and infra ‘terram in dominico et ad terminum’

6. Cf. Schulz, 178

7. ‘sortum et usuras,’ from line 10, as Schulz, 178; cf. Richardson in E.H.R., lix, 46 n.

8. Infra iii, 86

9. Cf. Schulz, 179

10. ‘tuus’ for ‘Titii,’ as Tancred, Schulz, 179

11. Schulz, 179; ‘fundum [commune]’

12. ‘communi dividundo pro eodem,’ as Tancred