Bracton: Thorne Edition: English. Volume 2, Page 325

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Volume 2, Page 325

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[001] because by that embankment a watercourse may be diverted wrongfully to the
[002] nuisance of the lord.]¹ ²[or] each in turn, for several concurrent penal actions
[003] arising from the same thing or the same act do not destroy one another³ [and] if he
[004] brings them in turn and successively what he fails to obtain by one he may recover
[005] by another.⁴ But when, as was said above, several actions arising from one act are
[006] available,⁵ we must see whether all the wrongs may be disposed of by a single
[007] action, for since suits ought to be restricted,⁶ it profits nothing to utilise several
[008] actions when one suffices for all, for demolishing what was wrongfully built, [that]
[009] the thing be restored to its original state, [and] that it be as it used to and ought to be.
[010] Let the assise [as of a free tenement] therefore proceed, that the embankment be
[011] completely cast down, [because if] the tenement is made as level as it ought to be,
[012] by that the obstructed way may be opened and the diverted water resume its
[013] habitual course. All the injuriae may thus be settled by a single action and damages
[014] assessed according to the different nuisances. If action were first taken only for the
[015] obstructed right of way, the injuriae caused by the embankment and the diverted
[016] water course would (in large part) still remain, and if action were taken only for
[017] the diverted water, the wrong with respect to the embankment would to a large
[018] extent still remain and that caused by the obstructed right of way would remain
[019] completely. Thus it is preferable that all the injuriae be determined at once by
[020] a single action rather than by several, whether they arise from one deed or several.⁷
[021] From a single delict or act several criminal or⁸ penal actions may arise, and lie for
[022] several just as for one, against one or⁹ several, as will be more fully explained below
[023] [in the portion] on the pleas of the crown, of appeals,¹⁰ and of penal actions;¹¹ several
[024] penal actions for several, as where an injuria is done to one through those who are in
[025] his potestas, as a son, a daughter or others who belong to one's household, [as where
[026] another] beats, wounds and mistreats contra pacem [one who is] in his service.¹² A
[027] direct action lies for him who suffered the blows, wounds and violence,¹³ that he may
[028] recover his damages, according

Notes

1. As Maitland noted (Br. and Azo, 217) the bank must stand partly on the plaintiff's land, partly on that over which he enjoys easements; but ‘secundum quosdam’ the embankment may be considered a quasi-nuisance though on his own land: infra iii, 197

2. Om: ‘Et quia . . . voluerit experiri,’ a connective

3. Inst. 4.9.1; supra 323

4. D. 44.7.41.1; Drogheda, 290

5. The portion supra 324, n. 36 to 325, n. 1 belongs here

6. Drogheda, 127: ‘quia lites sunt odiosae et propter hoc restringendae’

7. ‘sive nascantur ... pluribus,’ from line 25

8. ‘vel’

9. ‘vel,’ as supra 324

10. Infra 389, 391, 392

11. Infra 438; supra 324: ‘actiones poenales in causa civili’

12. Infra 438

13. Supra 296, Infra 438