Bracton: Thorne Edition: English. Volume 4, Page 273

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Volume 4, Page 273

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[001] Also put E. by gage and safe pledges to appear there to show why he sued the same
[002] plea in the same court christian contrary to our prohibition. And have there etc.
[003] (as above).’ Let the attachments be drawn in this way if the judges and he who sues
[004] are resident in the same county. If in different counties, let separate writs be drawn
[005] for each sheriff individually.

If by better pledges.

[007] If they do not appear on the day, then the sheriff either sends word that they are
[008] attached, in which case let them be attached by better pledges to appear on another
[009] day, and let the order of attachments be observed as it is in other personal actions,
[010] [or] reports that they are clerks and are unwilling to find pledges and have no lay fee
[011] by which they can be distrained. Let the ordinary¹ and the bishop then be ordered
[012] to cause them to appear, as elsewhere in [the portion on] personal actions.² ³<It is true
[013] as a general rule that an ecclesiastical judge has no cognisance over lay fee. But what
[014] shall be said of tenements in cities, boroughs and vills which can be bequeathed as
[015] chattels, whether they are an acquisition or a descending inheritance?⁴ It seems that
[016] a prohibition does not lie, because by the will of the testator, who can bequeath such
[017] things of common right, such tenements are made the quasi-chattels of the testator,
[018] and therefore⁵ if a prohibition issues as to such, since they are quasi-chattels, it does
[019] not lie, [no more than] for money promised because of a matrimonial causa, since the
[020] principal matter carries with it the debt and the tenements⁶ as accessories to the
[021] testament or marriage. ⁷Also with respect to the words ‘of the lay fee of such a one,’
[022] he who complains must show that the lay tenement in his. Hence if one is bound [to
[023] render]⁸ a rent to his lord, [who bequeaths it to another] the tenant will not have a
[024] prohibition because the rent is the property of the lord, not the tenant.⁹ A prohibition
[025] as of lay fee does not lie de jure, neither with respect to the rent nor the tenement
[026] from which it issues, because the lay fee is changed into a chattel by force
[027] of the testamentary causa and only when the legatee by such causa obtains does the
[028] tenement again begin to be lay fee,¹⁰ not before, which will not be true of tithes,
[029] which once they are made lay fee never

Notes

1. ‘ordinario’

2. Infra 374

3. Supra i, 417

4. Cf. supra iii, 295, iv, 268

5. Om: ‘non habet locum prohibitio’; ‘Item . . . non tenentis,’ infra nn. 7-9

6. ‘tenementa’

7-9. ‘Item . . . non tenentis,’ from lines 22-25

8. ‘ad reddendum redditum,’ OC, CE

10. Supra 268, infra 282