Bracton: Thorne Edition: English. Volume 3, Page 122

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Volume 3, Page 122

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[001] judgment’ is also applicable to a disseisor if he is ejected, at once or after a time, by
[002] another who has no right, because of the advantage of possessing, since he who is in
[003] possession, rightfully or wrongfully, if he is in possession in his own name (no matter
[004] in what way) and not in another's, has a greater right in the possession than he who is
[005] out of possession and has no right,¹ [and] since if² he were out of possession and wished
[006] to sue against the wrongful possessor he would have no action.³ Hence if he ejects the
[007] wrongful possessor without judgment and by force, when he could not do so by legal
[008] process, he ought properly to restore to him by judgment what he usurped without
[009] judgment, wrongfully and by force, despite the exception of property or free tenement
[010] [raised] against the person despoiled.⁴ ⁵If one is in seisin by judgment, we must
[011] then see whether the judgment is rightful or wrongful, for if rightful he will possess
[012] rightfully, because he possesses rightfully who possesses by authority of the praetor,⁶
[013] authority⁷ having been lawfully used. But if authority has been wrongfully interposed,
[014] the judgment will be wrongful and therefore revocable, and not only does the
[015] court which gives the judgment commit an injuria and a disseisin, but also the bailiff
[016] of the court who executes such wrongful judgment, and not only the bailiff but also
[017] the lord or other person who obtains possession through such judgment, but not with
[018] respect to the penalty, only to restitution, because he will be free of punishment who
[019] is not guilty of disseisin.⁸ [This is true if that such judgment was given in court is
[020] established by examination, the confession of the parties, or in some other way. But if
[021] it cannot be established, or the jurors of the assise have doubts as to the judgment, or
[022] no knowledge of it, it ought to be presumed, until the contrary is proved, that the
[023] court decided properly, for interpretation ought to lean toward the more benign
[024] side,⁹ and let the plaintiff take nothing by the assise, but let him sue, if he so wishes,
[025] against the court for its false judgment, that the court be summoned to cause a record
[026] to be made etc., and to have the record. It is better, according to Martin, for the sheriff
[027] to be commanded to order the lord or the bailiff of the court to cause¹⁰ the record to be
[028] made and have¹¹ it on a certain day, by this writ. On this there is matter

Notes

1. D. 43.17.2; supra 30, 70, 98, infra 134

2. ‘cum si’

3. Supra 27

4. Supra 27, infra 134, 135

5. New paragraph

6. D. 41.2.11

7. ‘auctoritate’

8. Supra 56

9. D. 50.17.56

10. ‘faciat’

11. ‘habeat’