Bracton: Thorne Edition: English. Volume 4, Page 170

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Volume 4, Page 170

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[001] When one sues by writ of right for the recovery of both rights, the right of possession
[002] and that of property, on the seisin of an ancestor, it does not suffice for him to
[003] say that the ancestor was seised in his demesne as of free tenement only, or in his
[004] demesne as of fee only, unless he shows that [he was seised] in his demesne as of fee,
[005] which includes the free tenement and all the possessory right,¹ and adds ‘and
[006] right,’ which includes the right of property. Nor does it suffice to include these two
[007] rights together, that is, the possessory right and the property, as dreit dreit, unless
[008] the ancestor held that land in his demesne, for if only in service, it is insufficient to
[009] enable him who claims on the seisin of such a one to acquire anything for himself
[010] in demesne, because the heir claims such seisin as the ancestor had, nor may he vary,
[011] though it sometimes happens that one may claim by writ of right partly in demesne²
[012] and partly in service, which will not be on the seisin and deed of an ancestor
[013] but on the deed and feoffment of a wrongful deforciant or his ancestor. In that case
[014] when the demandant claims in service what he may have in demesne, he may
[015] blame himself, as will be explained more fully below.³ It does not suffice if he says
[016] that his ancestor was seised as of fee and right and in his demesne, unless he adds
[017] that he has taken the esplees, for though one may have a free tenement and a fee
[018] without esplees in a possessory action, as may be seen above in the intentio of the
[019] plaintiff or⁴ demandant in⁵ the assises of novel disseisin or mortdancestor, the
[020] seisin of the proprietas ought not to be so momentary that esplees are not taken.
[021] Therefore if esplees are not mentioned the demandant's action falls.⁶ ⁷<On tenuous
[022] and momentary seisin, without use and esplees, an action by writ of right on the
[023] property never lies, only the assise of novel disseisin on his own seisin or mortdancestor
[024] on the seisin of an ancestor; one who fails to bring the assise under such
[025] circumstances and proceeds to the writ of right on the property, will lose the whole
[026] without recovery.>⁸ In the count there is added ‘in the time of such a king,’ for it
[027] is necessary that he specify a certain time and a certain king of whose time he talks,
[028] because the writ of right, like other writs, is limited to a certain time. For it does
[029] not go back of the time of king Henry the grandfather of the lord king.⁹ The reason
[030] is because beyond that time one cannot prove anything, though he has a right in
[031] the thing, since no one can prove anything back of that time, since he cannot
[032] speak of his own sight, or of the sight

Notes

1. Om: ‘nisi dicat’

2. ‘dominico’

3. Supra ii, 125, 131, iii, 276, 325

4. ‘vel’

5. ‘in’

6. Supra ii, 132, iv, 43

7. Supra i, 414

8. Supra ii, 319

9. Supra 23, infra 359