Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 157  Next    

Go to Volume:      Page:    




[001] Since the assise of novel disseisin is threefold,1 that is, personal because of the deed,
[002] penal because of the injuria and delict, and recuperatory, that is, that the thing disseised
[003] be restored, to the extent that it is penal, [since] pains ought to fall on those
[004] who cause them, it does not lie for the heirs of the disseisee if he dies, nor against the
[005] heirs of the principal disseisor if he dies while the disseisee is alive, because the penalty
[006] dies with the person, and an heir is not liable for the delict of his ancestor.2 And so if
[007] the disseisee dies in the lifetime of the disseisor, an action for the injuria done to his
[008] ancestor does not lie for the heir, because there is no obligation between him and the
[009] disseisor with respect to the penalty, though there is with respect to restitution, [but
[010] by another writ, namely, of entry.]3 But [for a writ of entry to lie,] we must see if the
[011] disseisee, in order that an action may lie for his heir to the extent to which the assise
[012] of novel disseisin is restitutory [and] be perpetuated as against the heirs [of the
[013] disseisor], was diligent in impetrating and prosecuting or not, since laws aid the
[014] diligent, etc. If he is diligent in impetrating and prosecuting, so that a view of the
[015] land is made and the jurors chosen, and he then dies, by such diligence the assise of
[016] novel disseisin is perpetuated. [that is,4 an action to the extent that it is restitutory
[017] and penal lies for heirs against disseisors and their heirs, since there is nothing
[018] which can or ought to be imputed to the negligence of the disseised ancestor.]5 6<It is
[019] good as to restitution in every case, whether the assise was begun in the lifetime of the
[020] ancestor or not. According to some it is good as to the penalty and restitution7 if the
[021] assise was begun, otherwise not. But if it was so begun in the lifetime of the ancestor
[022] that a view of the land was made and the jurors chosen, the assise is perpetuated as to
[023] the penalty of a disseisor and restitution, because the heir succeeds to a tainted thing
[024] and thus to the penalty. But if the matter is not carried so far in the lifetime of the
[025] ancestor, [as where] the disseisee, diligent enough in impetrating, could not carry it
[026] to completion before his death, because of the shortness of time, because the disseisin
[027] was committed but three or four days before his death, [and], since he was thus
[028] engaged in impetrating,8 his heir loses the assise of mortdancestor, because, since he
[029] wished to impetrate, he lost both possessions, civil and natural, the heir is aided by a
[030] writ of entry without the clause,9 and the disseisor's heir will only be liable to restore,
[031] not to the penalty, because he did not enter into a thing made litigious.10 But if the
[032] ancestor [dies] immediately after the disseisin, on the first, second, third or fourth
[033] day, or shortly thereafter, especially if he was so ill that he could not sue,11 and was
[034] not engaged in suing, since he still retained civil possession and could immediately
[035] eject his disseisor,12



Notes

1. Supra ii, 324, iii, 26

2. Supra 44, infra 160, 175; ‘principal disseisor’: Hall in Tulane L. Rev., xlii, 597

3. Supra 47, 51

4. ‘scilicet’ for ‘sive’

5. Infra 159, 201, 270

6. Supra i, 400

7. ‘restitutionem’

8. ‘in impetrando,’ as below

9. Infra 174, 200

10. Supra 44

11. ‘detentus,’ as infra 158: ‘in tali languore quod sibi,’ as infra 270

12. ‘disseisitorem’; infra 201


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