Bracton: Thorne Edition: English. Volume 3, Page 134

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Volume 3, Page 134

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[001] whether it is rightful or wrongful. Hence though a tenant-disseisor or intruder has no
[002] right, if one who has no right disseises him and he seeks restitution by the assise, the
[003] exception of free tenement will not bar him for two reasons, because of the advantage
[004] of possessing, and because, though the disseisor-possessor had no right in the thing
[005] possessed and no rightful seisin, he who was out of possession and had no right to
[006] claim and no action ejected without judgment, when he could not do so by action.
[007] Let him lose by judgment and by the assise notwithstanding any exception of property
[008] or tenuous seisin, because if I possess wrongfully by intrusion or disseisin, by
[009] that I cause no injuria to him who has no right. If he who has no right claims from me
[010] who has no right in a petitory action, it does not suffice if he shows that I have no
[011] right unless he shows that he has right, by force of which an action ought to lie for
[012] him. Hence, though I have no right, if he has neither right nor action he will fall from
[013] his action and possession will remain undisturbed. Hence [if], though he has no action,
[014] he ejects me by force without judgment, if I at once re-eject him, he will not
[015] recover, because he has no free tenement because of the shortness of time and because
[016] of tenuous seisin. If I sue by the assise of novel disseisin, at once or after a time, and
[017] he excepts against me that I have no free tenement in the thing which I possess wrongfully
[018] as against another, that exception is not open to him, [though it may be to the
[019] person I ejected wrongfully and without judgment,]¹ since the free tenement is another's
[020] [and] no exception is acquired for a tenant² by virtue of another's right,³ [and]
[021] his own possession is wrongful. And properly so, for if one out of possession has neither
[022] right nor action and usurps seisin to himself wrongfully and without judgment, he
[023] will have no exception, nor ought he to be in a stronger position than a true lord who,
[024] after he has been ejected wrongfully and without judgment, usurps his own seisin to
[025] himself without judgment, after a long interval or after impetration, rightfully, yet
[026] wrongfully because without judgment. Hence, if the disseisor claims against the true
[027] lord by the assise, and the lord excepts against him that he had no free tenement, the
[028] exception will not bar him from recovery by the assise.⁴ In connexion with the first
[029] case of an intruder or disseisor claiming restitution by the assise against his disseisor:
[030] everyone who is in possession, though he has no right, has a greater right [than] one
[031] who is out of possession and has no right.⁵ Hence, if he has a greater right, it follows
[032] that he has a right, and a greater right than one who has no right, because of possession,
[033] and thus a quasi-free tenement as against him who has no

Notes

1. Om: ‘Et’

2. ‘tenenti’

3. D. 7.6.5.pr.: ‘non de alieno iure quemque agere oportet’; infra 156

4. Infra 135, 136

5. D. 43.17.2; supra 30, 70, 98, 122