Bracton: Thorne Edition: English. Volume 3, Page 176

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Volume 3, Page 176

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[001] which may be said whether the tenement and soil is the plaintiff's own property or
[002] held in common with others, so that no separate part can be ascertained. ¹<The exception
[003] lies against a plaintiff that he cannot claim common because at another time he
[004] claimed the tenement with the appurtenances and lost it with the appurtenances, the
[005] common then being one of the appurtenances, and he therefore lost both. And so if a
[006] tenement is claimed, that he who now claims the tenement in demesne once claimed
[007] common and lost by judgment; since he claimed common, and no one has a servitude
[008] over his own land,² he thereby tacitly admitted that he had no right in the tenement
[009] in demesne. This exception arises out of a presumption.> He may allege against the
[010] assise and the writ that on the day it was impetrated and afterwards the plaintiff
[011] was in peaceful possession, so that when he impetrated there was no reason for so
[012] doing and that thus the impetration is void.³ He may say that if he was disseised
[013] when he impetrated, he now has neither plaint nor reason for suing, because after
[014] impetration, even without judgment and a judge, he usurped his seisin to himself,
[015] and because he did this wrongfully and without judgment he may say that he has
[016] now impetrated⁴ a writ of novel disseisin of free tenement against him. He may allege
[017] against the assise that the plaintiff lost his plaint by a usurpation without judgment,
[018] by a subsequent judgment of free tenement, because he usurped to himself what he
[019] ought to claim by judgment.⁵ It is clear that if one first impetrates, then usurps seisin
[020] to himself, ⁶<it is otherwise if he accepts it when freely offered,> [and] nevertheless
[021] claims by the assise what he holds, the assise must be taken and he who so usurped
[022] [will be] in mercy for the usurpation, but he will not make restitution by judgment,
[023] as [in the roll] of Michaelmas term in the thirteenth and the beginning of the
[024] fourteenth years of king Henry, an assise of novel disseisin of common of pasture
[025] concerning the abbot of Ramsey.⁷ This is true unless he who was thus disseised without
[026] judgment, though rightfully, wishes to sue by another writ of novel disseisin
[027] against the usurper⁸ and proceed on the principle or reciprocity,⁹ <in that case the
[028] plaintiff could be held to the disseisee by reciprocity, that what he wishes to have for
[029] himself he have against himself, that if the usurper sues by the assise to retain what he
[030] usurped without judgment, though rightfully, the person despoiled should recover,
[031] by reciprocity, [what he usurped without judgment though wrongfully].>¹⁰ If one
[032] brings an assise of novel disseisin when he is a termor, the assise does not lie for him,
[033] since he holds

Notes

1. Supra i, 401

2. D. 7.6.5.pr.

3. Supra 38, 66, 79, 126

4. ‘impetraverit’

5. D. 48.7.7: ‘reposcere debuit per iudicem’; infra 196

6. Supra i, 401; from line 22

7. B.N.B., no. 360; no roll extant

8. B.N.B., no. 360 (margin): ‘Nota de eo qui sine iudicio usurpet sibi seisinam ante captionem assise nove postquam arramiavit assisam. Set quid si ille super quem usurpatum est perquisiverit sibi per assisam nove disseisine de libero tenemento, tunc credo quod procedet ultima assisa, et extinguitur prima et adnichilatur, in penam ultime disseisine, quia facit sibi iusticiam ubi per iudicium recuperare deberet.’; B.N.B., i, 87

9. ‘reconversione’

10. From supra line 23