Bracton: Thorne Edition: English. Volume 2, Page 440

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Bracton Online -- English

Volume 2, Page 440

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[001] [He does not act wrongfully in so taking a distress, but if beasts lawfully seized in
[002] this way are detained against gage and pledges, when they have been claimed by
[003] gage and pledges, security having been offered for the performance of the service
[004] and the arrears, or, if the beasts were taken for some other reason, ¹<as damage
[005] fesant or for injuriae committed or for debts or other matters which can be determined
[006] without writ,>² ³then for the plaintiff's appearance in court and submission
[007] to the law,⁴ <the seizure may be lawful⁵ but the detainer unlawful,> and [if] that is
[008] proved in the county court the taker will fall into the sheriff's mercy.]⁶ and the
[009] sheriff will release the beasts thus seized on the understanding that their owner come
[010] to his lord's court on reasonable summons and on an appointed day to answer for
[011] the service he acknowledges and for the arrears of that service.⁷ ⁸The lord must
[012] either deny the detainer or admit it. ⁹<Let the seizure be dealt with first, for they
[013] may not have been seized.> If he admits that it was unlawful, the result is clear.
[014] If he denies that it was such <[that], whether seized rightfully or wrongfully, the
[015] beasts were never claimed by gage and pledges,¹⁰ or if [once] claimed, that the
[016] plaintiff did not come to his lord's court to stand trial, so that they were seized a
[017] second time,>¹¹ ¹²<If the seizure was for damage done, the question whether the
[018] beasts were seized in his fee¹³ or outside it may be raised.> and the plaintiff has his
[019] suit ready at hand, its members upon examination agreeing on all points and that
[020] everything was done in their presence, the defendant shall then wage his law with
[021] the twelfth-hand;¹⁴ if he fails [to make his law] he falls into the sheriff's mercy as in
[022] the first case, and will restore the damages sustained by the said detention to the
[023] plaintiff. If he makes his law the lord will then withdraw quit, but he will recover no
[024] damages; the plaintiff will be amerced and [the sheriff] will return the beasts seized
[025] to the lord. Then let the plaintiff either satisfy the lord as to his service at once or
[026] cause his beasts to be replevied until an agreed day on which he will do for the lord
[027] what of right he ought to do. But what if after the beasts have been returned they
[028] are claimed by gage and pledges which are then refused? It is submitted that they
[029] ought to be released as before.

If the seizure is unlawful.

[031] If the seizure is unlawful, as for a service the tenant does not acknowledge and as
[032] to which he is unwilling to answer without the king's writ,¹⁵ he who seized the
[033] beasts must then answer for the unlawful seizure, whether he has wrongfully
[034] detained them against gage and pledges, as above, or not, [This is so if the plaintiff
[035] shows by certain proofs and adequate suit that the beasts have been taken for a
[036] service

Notes

1. Supra i, 390

2. Infra 446

3-4. ‘tunc de veniendo ... iuri,’ from lines 10-11, as Fleta, ii, ca. 44

5. ‘iusta’

6. Continued infra n. 8

7. Infra 443

8. Continued from n. 6

9. Supra i, 390

10. Infra 445, 446, 447

11. Infra 446

12. Belongs (apparently) infra 446, at end of first sentence

13. ‘in feodo suo’ for ‘in damno’

14. Infra 445

15. Infra 444