Bracton: Thorne Edition: English. Volume 3, Page 55

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Volume 3, Page 55

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[001] he was wrongfully disseised thereof; under those circumstances it was not lawful
[002] for him to accept his own property without judgment. Suppose that both B. and C.
[003] impetrate against A. at the same time; I ask which assise ought to be heard first. It
[004] is clear that resort must be had to the last assise. Suppose that C., the last disseisee, is
[005] negligent and B. first impetrates against A. and recovers against him by the assise; C.
[006] afterwards impetrates against both A. and B. The exception of res judicata put
[007] forward by B. will bar him, as against A. the writ will be good as to escambium,
[008] by the judge acting ex officio. If he impetrates against B. alone, the writ will be
[009] ineffective, because he committed no disseisin; if against A. alone, he cannot restore;
[010] he must therefore bring it against both. ¹<From the foregoing therefore it appears
[011] and is presumed that in the assise of novel disseisin a warrantor may be vouched
[012] which appears to be absurd, since in delicts one may not vouch a warrantor nor
[013] name his lord as actor, since pains ought to fall on those who cause them. Here we
[014] must distinguish whether the plaint of novel disseisin is brought as a penal action or
[015] only to the extent that it is recuperatory. If as a penal action, whether brought against
[016] the one or several who committed the disseisin as principals, or who were enfeoffed
[017] immediately after the disseisin, a warrantor will never be vouched, because of the
[018] delict of disseisin. But if it is brought against someone only to the extent that it is
[019] recuperatory, as where one has been enfeoffed by a disseisor long after the disseisin
[020] and before the impetration of a writ, when the feoffee is not subject to a penalty,
[021] since he committed no disseisin, though he is bound to restore,² he may lawfully
[022] vouch a warrantor, even without another writ, if his warrantor, that is, his feoffor, is
[023] present, and he ought to answer at once, even without another writ. If he is not
[024] present at the taking of the assise, then when he has been vouched let him be summoned
[025] at once to be present and warrant the tenement as to which he was vouched
[026] while the tenant is³ in seisin, as is done in the assise of mortdancestor. If both are
[027] absent the feoffee has only himself to blame. ⁴And so if a warrantor is vouched [by a
[028] writ of entry post disseisin] where one of the parties dies, that is, the tenant or the
[029] plaintiff or both, where the penalty dies with the person, as where the plaintiff alone
[030] dies, [since] there is no one who may sue on the injuria, since he who suffered the
[031] injuria and had an action as to the penalty is dead, [or] if the tenant dies, because
[032] since it is penal the action does not lie against heirs any more than it lies for heirs, as
[033] in the former case; nor a fortiori if both die. ⁵That a warrantor may be vouched clearly
[034] appears, as where the assise of novel disseisin is arraigned against

Notes

1. Supra i, 393

2. Supra 26, 41, 48

3. ‘fuerit’

4. New paragraph

5. New paragraph