Bracton: Thorne Edition: English. Volume 3, Page 201

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Volume 3, Page 201

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[001] to permit such a one to re-erect or repair etc.’> Let the same be done¹ with respect to
[002] a bank or a wall or other things wrongfully raised, that they be thrown down, and to
[003] things wrongfully thrown down, that they be re-erected and repaired, to things wrongfully
[004] raised in height, that they be admeasured, to roads wrongfully obstructed, that
[005] they be opened to proper use, and to waters diverted, that they be re-directed and
[006] restored to their proper state.² Let these suffice³ by way of illustration. A writ as to
[007] such may be drawn along the lines of an assise of mortdancestor, seisin being continued,
[008] so to speak, from ancestor to heirs, as where a nuisance is committed and the
[009] person harmed dies on the same day or on the morrow or on the day following; because
[010] he retains civil possession of the status quo⁴ though he has lost natural.⁵ And the heir,
[011] by virtue of such seisin, can immediately cast down or raise,⁶ as could his ancestor
[012] had he lived.⁷ Or an assise of novel disseisin of nuisance may lie for him as it lay for
[013] his ancestor while he lived, because of such continuance, because through the civil
[014] possession the ancestor retained, a wrong is done the heir as well as the ancestor,
[015] because the ancestor could⁸ immediately repair or cast down had he not been hindered,
[016] anticipated so to speak by death.⁹ But if the ancestor is¹⁰ negligent in impetrating,
[017] [as where the nuisance was committed] long before his death, so that he
[018] negligently failed to impetrate though he could, no action [by writ of entry] will
[019] be given the heir, because of his ancestor's negligence,¹¹ because it is evident that
[020] what did not hurt the ancestor cannot hurt the heir.¹²

If a disseisin is committed within the summons of the eyre of the justices let this writ issue.

[022] It sometimes happens that a disseisin is committed within the summons of the eyre
[023] of the justices, when recourse to the court for obtaining a writ will not be necessary;
[024] let it be drawn by the justices in this form: ‘Titius of such a place and his companions,
[025] justices itinerant in such a county, to the sheriff, such a one, greeting. Such a
[026] one has complained to us that such a one wrongfully etc. (and so in every respect as
[027] above except with regard to the term of limitation, for which substitute ‘within the
[028] summoning of our eyre’). And therefore we order you etc. (as above).’ [If] the jurors
[029] are present and have made the view, let the assise be taken at once, [But we must
[030] see whether the disseisin was committed during the eyre itself, within the summons
[031] of the eyre, or before, in part or in toto, that the writ may agree with the plaint.]
[032] and let the matter proceed exactly as above and be answered as above.

That a disseisin ought not be committed on a disseisin, nor an assise [taken] on an assise, a jury on a jury or a conviction on a conviction.¹³

Notes

1. Om: ‘si quis . . . prosternantur’

2. ‘de fossato . . . reformentur,’ from 200, lines 21-26

3. ‘sufficiant’

4. ‘de statu’; supra 158-9, 174, infra 270

5. Infra 270

6. Supra 174, infra 326

7. Portion following transposed supra 200, n.9

8. ‘posset’

9. D. 24.2.6; supra 51

10. ‘fuerit’

11. Supra 47, 51, 157, 158

12. ‘videtur quod heredi nocere non possit’

13. Erroneous: infra 351

If a disseisin is committed within the summons of the eyre of the justices let this writ issue.

That a disseisin ought not be committed on a disseisin, nor an assise [taken] on an assise, a jury on a jury or a conviction on a conviction.13

Notes

That a disseisin ought not be committed on a disseisin, nor an assise [taken] on an assise, a jury on a jury or a conviction on a conviction.¹³