Bracton: Thorne Edition: English. Volume 4, Page 84

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 84

Next

Go to Volume: Page:

[001] are bound to contribute. If there are several tenants in the same writ, but by different
[002] rights and not as parceners, each will have an essoin by himself, not successively,
[003] as above, because there are here different pleas and there only one.¹ If the
[004] several tenants are husband and wife, though they do not hold in common, as said
[005] above, nevertheless each of them will have a single essoin, together or successively,
[006] not only because of the unitary nature of the right but because of the unity of blood,
[007] since husband and wife are one flesh, which is not true in the case mentioned above.
[008] Hence if one of them defaults both are punished for the default of one.² In the case
[009] mentioned above only he who defaults is punished, because there the common right
[010] of the parceners admits of division, but the right of a husband and wife with respect
[011] to the property of the wife does not, especially since the thing is the property of the
[012] wife and not the husband, since nothing belongs to him except custody by reason
[013] of his wife. Though the several tenants hold in common, each will have his essoiner,
[014] [if] one or several, or one of the several, essoins himself,³ because the persons are
[015] different and the excuses different. When all the parceners or tenants appear together
[016] in court, and⁴ a day is given the parties,⁵ as a love-day in hope of peace, or
[017] after the view sought, or a warrantor vouched, or for lack of recognitors, or for any
[018] other reason whatsoever, the tenants may begin their essoins again, as on the first
[019] day of summons.⁶ If there are several tenants who hold separately, each his part,
[020] and they are impleaded in common by one or several persons, let each have a single
[021] essoin by himself, not successively, until all appear together. If one defaults, that
[022] will be damaging to himself alone and not to his parceners, nor if he loses⁷ will he
[023] have recourse against his parceners, because it may well happen that some of the
[024] several will retain,⁸ but may blame his own negligence on himself.⁹ When all are
[025] present, let the matter then proceed as though [they held] in common, because one
[026] will not answer without the other, whether the several are tenants¹⁰ in common or
[027] by different rights, [when] a common but divided inheritance is claimed by one or
[028] several from co-heirs. ¹¹[But if [they hold] by one right [and]¹² in common, the
[029] judgment of the individual tenants will be the same, either for or against, unless one
[030] loses his portion by negligence and default, in which case he will have no recourse,
[031] against his parceners.] Hence if one of several tenants [who hold] in common or
[032] separately appears on the first day, he will not answer without his parceners unless
[033] he so wishes, it having been alleged that he has parceners.¹³

Notes

1. Infra 89, 100

2. Infra 96, 127, 128, 142

3. ‘si contingat . . . essoniaverit,’ from lines 16-17

4. ‘et’

5. Om: ‘si praesentes fuerint’

6. Infra 88, 141

7. ‘nec si amiserit’

8. ‘quia bene . . . retinere,’ from lines 29-30

9. Infra 89

10. ‘tenentes’

11. Belongs supra at n. 8

12. Om: ‘ab uno . . . petatur’

13. Supra 83, infra 127