Bracton: Thorne Edition: English. Volume 2, Page 397

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Volume 2, Page 397

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The appellee may except against the appeal. Exceptions against the appeal.

[002] He may except against the appeal by saying that he had earlier been appealed of
[003] the same deed by another and had departed quit by judgment, in proof whereof he
[004] may vouch the rolls and the record of the justices. He may also except and say that
[005] the justices have gone on eyre in that county after the deed was supposed to have
[006] been committed and no mention was made of it in that eyre,¹ [it would be otherwise
[007] if the appeal had then been begun though not yet determined,] and that the
[008] writ of summons [of the eyre] supports this statement [That an exception of this
[009] kind is good is shown [in the roll] of Michaelmas term in the ninth and the beginning
[010] of the tenth years of king Henry in the county of Hereford, [the case] of Henry
[011] Rumbold,² indicted for homicide, where the indictment was concealed during the
[012] eyre so that no mention was made of it and revived during the next eyre; on this
[013] exception being made Henry departed quit.] [An appeal may be avoided if the
[014] exception that one is appealing another through hate and spite is put forward and
[015] proved.]³ and that thus the appeal does not lie.

Exceptions: that an appeal does not lie.

[017] An appeal does not lie between a lord and his tenant who has done him homage, as
[018] long as the bond of homage continues, nor conversely,⁴ nor between a lord and his
[019] villein, unless he has appealed him of felony and treason committed against the
[020] lord king, for then anyone ought to be heard as appellor, a bondsman as well as
[021] any other,⁵ and without giving pledges,⁶ unless he is a manifest traitor or⁷ convicted
[022] as a felon,⁸ who will have no right to speak against a law-abiding man ⁹<as [in the
[023] case] of Richard Neel and Ralph de Bray, Vitalis Engayne and William son of
[024] Elias.>¹⁰ An appeal before the justices also falls where there was no appeal nor
[025] was suit made in the county court prior to the eyre of the justices, or if [there was
[026] an appeal] the appellor never prosecuted. [This is true unless the deed is recent
[027] and has occurred during the eyre.] An appeal before them also falls when the
[028] appellor does not speak of his own sight and hearing,¹¹ even though he spoke of
[029] such in the county court and this is attested by the county court, as [in the roll] of
[030] the eyre of Martin of Pateshull in the county of Worcester in the fifth year of king
[031] Henry.¹² And so if there is an error in the names or surnames of the appellees, as
[032] where he now calls a man William and then Robert. And so if there is a variance

Notes

1. Supra 329

2. C.R.R., xii, no. 1567 (the entry on the roll is marked ‘De corona’); B.N.B., no. 1691, supra 329

3. Supra 346

4. Supra 237

5. Supra 34, 334, infra 438

6. Supra 335

7. ‘vel,’ as infra 398

8. Supra 335, 336, except approver, 429

9. Supra i, 389

10. C.R.R., xii, no. 1055, supra 336; not in B.N.B.

11. Infra 398

12. Selden Soc. vol. 53, no. 1142; not in B.N.B.