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[001] to another writ against another who holds, though as against him who did not hold
[002] he withdrew from both. But suppose that he against whom he withdrew now begins
[003] to posses de novo; does a similar writ lie against him notwithstanding the exception
[004] that the other withdrew himself earlier? [Yes], because now the action begins to
[005] lie against him which did not lie before. Thus we must always see whether he withdraws
[006] from the writ only, because it is defective, or from the writ and the assise,
[007] expressly or tacitly, and whether it is the same person and the same thing that are
[008] involved or different ones, and whether the first action did not lie, because the tenant
[009] did not hold, and afterwards has begun to lie because the tenant has begun to possess.
[010] But quaere whether he could sue by the first writ, since the circumstances in which the
[011] action could begin have now come about? He cannot, because at the time of impetration
[012] there was no reason for impetration, as may be ascertained by the date.1 2<This
[013] belongs below [in the portion] on exceptions, [in the portion] where one excepts that
[014] he does not hold the whole, or holds nothing at all.>3 Suppose that one withdraws
[015] from the writ when the tenant says falsely that he does not possess, though in fact
[016] he does possess, and the same tenant is later sued by the same demandant using a
[017] similar writ; the tenant will not have the exception ‘that the demandant withdrew’
[018] because of the odium connected with his falsehood, but must be deprived without
[019] judgment because of his lie,4 according to William of York: if, when a tenant has
[020] once said in court that he claims nothing in a thing, he afterwards wishes to defend
[021] himself as to that same thing against the same demandant by an exception, or if he
[022] sues, he who claimed nothing,5 that he may use his right and seisin as to which the
[023] other disturbs and impedes him, he will not be heard, as one who contradicts himself,
[024] as may be said of a right of advowson, as where one says he has nothing in a right of
[025] advowson and subsequently wishes to sue for it against the first demandant by
[026] quare impedit, because he contradicts himself if he first says that he holds nothing and
[027] afterwards that the right to present belongs to him, because both cannot be true of the
[028] same person at the same time. But if he who6 said he possessed [nothing], possessed
[029] nothing, and afterwards begins to possess, by the causa of gift or sale, or perhaps
[030] because he is vouched to warranty, here he may defend himself or sue by virtue of
[031] this new causa, [but] he will not have the exception7 that the other withdrew himself,
[032] since he possessed nothing. If one withdraws himself from court, where there will be
[033] judgment, and from the writ, he may not afterwards sue by a similar writ. If he once
[034] withdraws himself from a writ of right,



Notes

1. Supra 38, infra 79, 176

2. Not in list of addiciones supra i

3. Om: OA, LA, MC, OC, MG; infra iv, 343 ff.

4. Tancred, 195

5. ‘qui nihil petiit’; om: ‘nisi’

6. ‘qui’

7. ‘exceptionem’


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