Bracton: Thorne Edition: English. Volume 3, Page 149

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Volume 3, Page 149

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[001] both, A. who committed the disseisin and B. who can restore. A. can say nothing as
[002] to why the assise ought to remain. If B. speaks against the assise, [saying] that he is
[003] lord and that A., who wrongfully disseised him, offered it to him freely and he took
[004] it when so offered, C. may replicate that in as much as the same A. ejected him wrongfully
[005] and without judgment, so that he impetrated against the same A., and so that
[006] the sheriff was ordered to cause that tenement to be in peace until the arrival of the
[007] justices, the same A. could not transfer it to another without prejudice to the same
[008] C., and hence that if A. afterwards freely offered it to him [B.], he ought not to receive
[009] it, since that was to the prejudice of the same C. though in no way prejudicial to the
[010] same A. As against C., it will be as though he [B.] has usurped his seisin without judgment
[011] from the said A.] Difficulty in giving judgment also impedes restitution, as
[012] where the matter may in no way be decided, in which case the parties may be induced
[013] to reach a settlement; it is otherwise if a decision may by some means be reached,
[014] though with difficulty.¹ Also res judicata, especially if there has been a just judgment.²
[015] Also intrusion, provided time has not run through negligence, that is, if he is reejected
[016] at once.³ The exception that a fine has been levied impedes restitution in the
[017] proper circumstances. There are many other matters which impede restitution which
[018] do not now come to mind, but let these suffice⁴ by way of example.

There are some exceptions which are, so to speak, outside the assise and do not touch it, but sometimes destroy the writ and sometimes defer the assise.

[020] There are some exceptions which [do not] destroy the assise [only the writ, not the
[021] action,] completely, though they defer it for a time,⁵ as an exception to the jurisdiction.⁶
[022] There is an exception against the writ, against the person of the plaintiff,⁷ and
[023] one which arises from the person of the tenant. There is an exception which lies
[024] because of the time and place,⁸ and one against jurors, because they are insufficient
[025] and essoinable or recusable, or though they are competent only so many are present.⁹
[026] And since all these exceptions, whether they are peremptory or dilatory are, so to
[027] speak, outside the assise or apart from it, they are therefore determined not in the
[028] manner of an assise but in the manner of a jury, as though by consent of the parties,¹⁰
[029] since one says that it is so and the other says the contrary and each asks, outside the
[030] assise, so to speak, that enquiry be made into the truth of his statement. [The jurors]
[031] therefore are not open to a conviction,¹¹ for if any one¹² of the parties should wish to
[032] impugn their verdict he would thus say that his proof is inadequate, since the verdict
[033] of the jurors here is not an assise but the proof¹³ of an exception, for he who excepts
[034] ought to prove his exception. And similarly, he who replicates against an exception
[035] ought to prove his replication.

Notes

1. Supra 143, 148

2. Supra 143

3. Supra 142

4. ‘sufficiant’

5. Supra 143

6. Infra iv, 248

7. Infra iv, 308

8. Infra iv, 245

9. ‘non [nisi] tantum sint’

10. Supra 143

11. ‘convictionem’

12. ‘aliqua’

13. ‘probatio,’ all MSS