Bracton: Thorne Edition: English. Volume 3, Page 147

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Volume 3, Page 147

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[001] by the charter drawn on the making of a gift: if the charter alone is denied, that does
[002] not suffice, unless the gift is also denied; where one says ‘I deny the charter,’ he fails
[003] to say enough. If he says ‘I deny the gift and the charter,’ the tenant must then prove
[004] both. If he says only ‘I deny the gift,’ that is still sufficient, because a gift may be
[005] good and complete even without a charter, and a charter may well be genuine, but,
[006] in the absence of a completed gift, empty and without effect, [If the gift is good and
[007] complete, each may be strengthened by the other.] and thus the gift may be good
[008] though the charter is false, and the charter good though the gift is invalid or imperfect,
[009] as where a donee intrudes himself on his own authority and without a warrant.
[010] Thus it is not enough to prove the charter genuine unless the gift is proved valid and
[011] complete.¹ When the instrument and agreement are proved and it is necessary to
[012] proceed further, they either know positively that it was satisfied or was not satisfied,
[013] and accordingly, the matter will be determined for one party or the other. If they
[014] know nothing whatever of any agreement, the plaintiff will recover, the exception
[015] being, so to speak, void. If they are in doubt as to whether the agreement was satisfied
[016] or not, though they know that an agreement was made, if they raise probable presumptions
[017] for one party or the other, the presumption must stand, in view of the
[018] doubt, since neither party has real proof by which it may be overcome. A presumption
[019] may be strengthened subsequently, [as] where it is in favour of him who acknowledges
[020] the agreement, but in his replication says that it was remitted. If there is a presumption
[021] in his favour, it may be strengthened by an instrument subsequently found on
[022] this side which shows the truth. If the tenant has no document whatever, he must
[023] then prove the exception of agreement in another way. He then either puts himself
[024] on the assise to be taken in the manner of a jury or does not. If he wishes to prove it
[025] by his own servants or members of his household, that is not permitted. If by the
[026] servants and household members of the other party, that is not likely to be successful.
[027] If jointly by both, they will never agree. He must therefore of necessity have recourse
[028] to the assise, joining to it any who were present at the making of the agreement,
[029] provided they are connected with neither party. If he has no document and does not
[030] wish to put himself on the jury, but has suit, one or several, whether they are members
[031] of his household or not, by force of that he has at least a presumption in his favor,
[032] which must stand until the contrary is proved. The contrary may be proved by wager
[033] of law, for law overcomes suit.² Suppose that one who has

Notes

1. Supra ii, 50, infraiv, 218

2. Supra ii, 445,448