Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 155  Next    

Go to Volume:      Page:    




[001] under colour of distress may be committed in this way, as where it is levied by oxen,
[002] by plough-teams, without due measure, so that cultivation utterly fails. But since a
[003] disseisin may be committed if cultivation ceases through distraint, why is it not also
[004] committed if the enriching of the soil ceases, because where that is not done cultivation
[005] fails in whole or in part, 1as where one takes my carts used for fertilizing the
[006] fields so that their enrichment by marling or manuring fails. [I do not see why not.]2
[007] It is evident, therefore that a disseisin is committed by the taking of my beasts when
[008] there is no reason for distraint, or if there is, if he exceeds due measure, or, through
[009] contrived malice, does not observe the proper order. A disseisin is committed by
[010] distraint not only in the ways described, but also if under colour of distress he does
[011] not permit his tenant to reap his wheat, or to collect it into sheaves to his advantage.
[012] Also if he does not allow him to sell, alien or charge [his land], provided the tenant
[013] retains enough in the fee of him who distrains3 to satisfy a distress. A distraining
[014] lord also commits a disseisin under colour of distress if, on his own authority, he
[015] reaps and carries away wheat not yet separated from the soil, whether he does so
[016] himself or bailiffs do so in his name, whose deed he avows. And so when the wheat
[017] is separated from the soil, especially there, if it is not done with the consent of the
[018] tenant. A disseisin is also committed under colour of distress if by judgment of his
[019] court one takes the tenement of his tenant into his hand by force of a second decree4
[020] and at once enfeoffs another thereof, so that, though he wishes to do so, he cannot
[021] restore when the service and the arrears are offered him. Similarly if he takes the
[022] tenement of his tenant into his hand [in his absence] and denies it to him on his
[023] return, though he is prepared to satisfy him as to the service and the accrued
[024] arrears. 5<Sometimes the assise and plaint of disseisin is determined without an
[025] assise and jury, by the exception of res judicata, when the assise is arraigned against
[026] one who says that, since he recovered the tenement in question by judgment, he
[027] committed no injuria. Let him then at once put himself on the assise or vouch
[028] the rolls of the justices and their judgment to warranty.> <If he puts himself on
[029] the assise, that ought not to help him. Let him put himself on the rolls, because if
[030] the jurors should find contrary to the rolls, or their findings differs from them, they
[031] could be convicted, at least of falsehood,6 and an assise could thus be taken on an
[032] assise, which ought not to be with respect to the same thing and



Notes

1-2. ‘[ut] si quis carectas ceperit . . . quare non,’ from lines 8-10

3. ‘in feodo . . . distringit,’ from lines 12-13; supra ii, 141, iii, 37

4. B.N.B., nos. 2, 187; ‘ex secundo decreto’: H. J. Roby, De usufructu: Iustiniani Digestorum, vii, 1 (Cambridge, 1886) pp. 56-7; supra 62, 123

5. Supra i, 400

6. Infra 352


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College