Bracton: Thorne Edition: English. Volume 3, Page 123

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Volume 3, Page 123

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[001] in the eyre of the said Martin in the county of Suffolk in the twelfth year of king Henry,
[002] an assise of novel disseisin [beginning] ‘if Jocean de Ybernesterne,’¹ where it was said
[003] that he against whom complaint was made recovered his seisin by the judgment of
[004] such a court.² And that faith ought to be given in this connexion neither to the parties
[005] nor the jurors without a record, is stated [in the roll] of the eyre of the same Martin for
[006] the taking of assises of novel disseisin and gaol deliveries in the same county, an assise
[007] of novel disseisin [beginning] ‘if Laurence carnifex.’³ We must see how the court
[008] ought to be summoned and in what way. It is clear that he who has so recovered by
[009] judgment ought to vouch the court to warrant its judgment, by aid of the court of the
[010] lord king, either in the eyre of the justices or before justices specially assigned ad hoc,
[011] and a day will be given the parties from day to day, and in the meantime let the record
[012] be made and come.]⁴ ⁵‘Wrongfully though with a just judgment,’ as where a judgment,
[013] correct or incorrect, has been given by one who has no jurisdiction, since he
[014] cannot order execution of his judgment; if it is put into execution in some way he
[015] commits a wrongful disseisin, though he has judged justly, because an ecclesiastical
[016] judge has neither jurisdiction nor coercion over lay fee, nor in other matters which
[017] belong to the dignity and crown of the lord king. There may be a just judgment at the
[018] outset which is turned into a disseisin ex post facto, as in the levying of distresses,⁶ as in
[019] burgage and holdings outside the city, or⁷ if a lord by judgment of his court, for the
[020] failure of service, takes the tenement of his tenant into his hand, as a simple taking,
[021] until he has been satisfied as to the rent, but when he whose tenement it is offers
[022] [himself] in order to satisfy him⁸ as to the rent and arrears, [the lord refuses them]. He
[023] ought to be restored, and if the lord refuses to do so, there will then be an obvious disseisin.⁹
[024] On this matter may be found in the eyre of the aforesaid Martin in the county
[025] of Kent, in the twelfth year of king Henry.¹⁰ Suppose one enters into another's tenement
[026] under an agreement; it appears that he does so wrongfully, because without
[027] judgment, before the fact that there is an agreement is ascertained. Hence it would
[028] appear that the plaintiff ought to recover by the assise. But in truth he does not, for
[029] though it may seem at first sight that the assise ought to lie, it is nullified by an exception
[030] based upon the agreement, when he is in possession by force of the agreement,¹¹
[031] ¹²<as where

Notes

1. Not in B.N.B., roll extant

2. B.N.B., no. 1916: ‘Et Hawisia venit et dicit quod non disseisivit eum iniuste, quia seisinam quam habet, habet per consideracionem curie S. Edmundi.’ Margin: ‘Responsio contra assisam quod recuperavit per iudicium curie. Summoneatur recordum curie.’

3. Not in B.N.B.

4. Supra 56

5. Supra 121

6. Infra 153

7. ‘vel’

8. ‘obtulerit se ad satisfaciendum eum’

9. Infra 155

10. B.N.B., no. 1767

11. Supra 36, infra 144

12. Supra i, 398; om: ‘et multo fortius’