Bracton: Thorne Edition: English. Volume 2, Page 426

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Volume 2, Page 426

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[001] who is seised will not comply with his demand he may augment his action and
[002] claim it as stolen, [but not conversely,]¹

Of the appeal of larceny.

[004] and say that he who is seised of the property is a thief or can name the thief² and
[005] that he took the said property feloniously and stealthily and larcenously and
[006] against the king's peace and thievishly bore it away. And that he did this stealthily
[007] and feloniously he offers to prove against him by his body³ as the court may award.
[008] And let the appellee then deny the felony, theft and everything, either by the
[009] country or by his body, according to his choice, as the court may award.

Where he makes denial, let battle be waged.

[011] If he elects to make his defence by his body let the duel be waged between them
[012] at once. Let the appellee give a gage for defending and the appellor for deraigning
[013] and the matter will thus be determined.

If the appellee chooses the country.

[015] If he chooses the country he may then say that the thing in dispute is his own
[016] property and show the reason why, as where, [if] it is a horse, that it was the foal
[017] of his mare⁴ and that he reared it for such a length of time. If this is confirmed by
[018] the country he will be discharged, unless the appellor can prove the contrary, that
[019] is, prove by the country and by men of his neighbourhood or by other certain
[020] proofs that it was the foal of his mare and that he had reared it from its birth.
[021] When suit is thus produced on both sides, let that suit be preferred which is the
[022] larger, the more worthy and the more consistent.⁵ [It is of no importance whether
[023] the goods so taken away are the property of the appellor or of another provided
[024] they were taken away from his custody.]⁶ But if the parties are equal in suit and
[025] witness, let other trustworthy men of the district be summoned, unrelated to either
[026] of the parties, and he will then be successful with whose suit these men agree;
[027] the matter will thus be concluded. If the appellee says the thing was sold or
[028] given him by another, he must then vouch him to warranty. If the warrantor is
[029] present, let the question of warranty proceed between them;⁷ [if he is not] and the
[030] appellee can produce him on an appointed day, let him do so; if he cannot, we
[031] must then proceed in another way, ⁸<by aid of the court and by writ.>⁹ When the
[032] warrantor is present he either warrants at once or refuses to do so. If he refuses,
[033] saying that he ought not to warrant him,¹⁰ the appellee in seisin must deraign that
[034] against him by his body; thus the matter may be brought to the duel between
[035] them.¹¹

Notes

1. Supra 291, 396

2. P. and M., ii, 162, n. 3; supra 295; B.N.B., no 1539; C.R.R., x, 105

3. Ibid.: ‘sicut ille qui vidit’; ‘Et quia idem Walterus locutus fuit de visu et auditu consideratum quod duellum esset inter eos’

4. This is the case of Elias Pigun: infra 427

5. B.N.B., no. 1115 (coram rege 18-19 Hen. III)

6. Supra 295, 394, 398-9, 412-13

7. ‘[tunc] inter eos ... de warantia’

8. Supra i, 390; from 427, line 5

9. As below

10. ‘quod ei warantizare non debeat’

11. Glanvill, x, 15; supra 338