Bracton: Thorne Edition: English. Volume 3, Page 281

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Volume 3, Page 281

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[001] a single thing divided among several; there will be several actions because of the
[002] several parcels and the several persons. But if he claims a single parcel against one
[003] person by parcels, as one carucate as several virgates, or one virgate as several
[004] acres,¹ if the tenant does not hold the whole the writ falls.² ³[He may not hold the
[005] whole] either because he never held anything therein, or if he did, transferred it to
[006] another and so ceased to hold. We must then see when he ceased, and when the thing
[007] was⁴ transferred to another, whether before the writ impetrated or after, for if
[008] before the tenant will then not be guilty of dolus and thus culpa may not be charged
[009] against him.⁵ But if after diligent impetration and prosecution, fearing the impending
[010] suit⁶ and the controversy begun, he transferred the property to another
[011] mutandi judicii causa,⁷ lest the action be brought against him, he will be considered
[012] the possessor nonetheless, and not only he who transferred but the transferee,
[013] at the pleasure of the demandant, that is, one or both.⁸ But if the demandant is
[014] negligent either in impetrating or prosecuting, the fault must be attributed to him.
[015] Not, however, if it is the sheriff who has been negligent in connexion with the summons
[016] and the sheriff's duty. If it is the chief lord who holds, though he does not hold
[017] the whole but others through him, the assise will proceed against him for the part he
[018] holds,⁹ as [in the roll] of the eyre of Martin of Pateshull in the county of Warwick
[019] in the fifth year of king Henry.¹⁰ And that the assise ought to fall because of an
[020] overclaim,¹¹ where the demandant claims more than the tenant holds, is proved in
[021] the eyre of William of Ralegh in the county of Leicester, [the case] of Humphrey
[022] of Leicester and Juliana his wife, near the end of the roll.¹² Suppose that the tenant
[023] says that he does not hold the whole tenement and the jurors when examined do not
[024] know whether he does or not; the assise falls for uncertainty, as [in the roll] of the
[025] last eyre of William of Ralegh in the county of Northampton, [the case] of William
[026] of Camera.¹³

Of the tenant's answer to the clauses of the writ.

[028] When the demandant's intentio has been put forward and supported,¹⁴ on each
[029] clause of the writ, as said above, the tenant, when he has no warrantor or defender,
[030] must answer the separate clauses in order and except against all, why the action or
[031] assise ought not to proceed,¹⁵ or some, and show the contrary or that the fact is
[032] otherwise, and then, to establish and prove his exception, put himself on the assise
[033] and prove [it] by the assise taken in the manner of an assise, since to except is of no
[034] value unless the exception is proved in the manner of an assise or of a jury. An
[035] answer may be made to the first clause, ‘if such a one, the ancestor [of such a one]
[036] was seised,’ as a father or mother

Notes

1. Om: ‘numero,’ ‘ex pluribus’

2. Infra 288

3. Om: ‘Item quod dictum . . . de toto’

4. ‘fuit’

5. Infra 289

6. D. 41.2.6: ‘futuram controversiam metuens’

7. ‘iudicii mutandi causa’: D. 4.7.4.1, 8.1, 9.11, 12; infra 289; B.N.B., no. 483 (margin)

8. Infra 289

9. Ibid.

10. Not in B.N.B.; Selden Soc. vol. 59, no. 474; infra 289

11. ‘plus petitio’: Inst. 4.6.33; Barton in Tulane L. Rev., xlii, 578; infra 288, iv, 348

12. Not in B.N.B.

13. Not in B.N.B.; 5 July 1232

14. Om: ‘igitur,’ ‘sic’

15. An example infra 282