Bracton: Thorne Edition: English. Volume 3, Page 151

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Volume 3, Page 151

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[001] because it will then be a matter of proof, not of an assise. Let the tenant prove¹ his
[002] exception by a jury, to which he must of necessity consent because of the lack of
[003] other proof, because if he cannot produce kindred, recourse must of necessity be had²
[004] to a jury, otherwise his exception will be void for lack of proof. The same is true of the
[005] plaintiff's replication. But suppose that the plaintiff has no kindred to produce, and
[006] when the tenant wishes to prove his exception by a jury the plaintiff refuses it; it
[007] follows that the action and assise will be denied him.³ If the tenant refuses the jury,
[008] let the assise proceed in the manner of an assise, as though there were no exception.
[009] If after the plaintiff's claim has been supported the tenant excepts villeinage against
[010] him and has proof at hand, kindred, that is, or the jury, the plaintiff may replicate
[011] on privilege, if it is his lord who claims,⁴ [as above more fully [in the portion] on exceptions
[012] of villeinage.] The matters explained here are true, regard being had, as
[013] above, to whether the exception is raised by a lord or a non-lord stranger, and then,
[014] whether he against whom it is raised is within the potestas of his lord or beyond it.

If he who holds by the law of England alleges that he has been disseised.

[016] The assise falls into a jury in another way, as where the plaintiff supports his intentio
[017] in this way, saying that he married a wife possessing an inheritance or maritagium,
[018] and that after her death he was in seisin for so long a time, until such a one wrongfully
[019] disseised him, and that he was in seisin in this way, by the law of England, because
[020] he and his wife had children of their marriage. If the tenant excepts against him
[021] that they never had a child, or if they had it died in the womb, or if it was born it was
[022] a monster and not a child, or if it was a child and alive, it was never heard to cry within
[023] the four walls, [and] the plaintiff by way of replication alleges the contrary, let the
[024] truth be inquired into by the assise in the manner of a jury and the matter will thus
[025] be determined. If the jurors say that they clearly saw him seised and subsequently
[026] ejected by the tenant, but know nothing of any child, because the mother died in
[027] childbirth, outside the county and in remote parts, since their verdict is insufficient,
[028] and because they may [reasonably] be ignorant of things done in remote parts, recourse
[029] must be had to the county and the vicinage where the mother died, that after
[030] an inquiry there made as to the truth the matter may be determined.⁵ The tenant
[031] may also except against the plaintiff that though he had children they were subsequently
[032] proved to be bastards; if the plaintiff denies this [the truth] will be declared
[033] by the assise in the manner of a jury.⁶ Suppose he puts it in this way, that the children
[034] are bastards and that he is prepared to prove this where and when [etc.]: then he
[035] either says that they are bastards because they were born before marriage [or because
[036] the plaintiff never married the mother. If because before marriage] and the other
[037] alleges that they were born after it, and both put themselves on

Notes

1. ‘Probet’

2. ‘recurrendum erit’

3. Supra 111

4. Deleted

5. Supra 144

6. Supra 34, 38, 125