Bracton: Thorne Edition: English. Volume 2, Page 427

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 427

Next

Go to Volume: Page:

[001] If he warrants, then as soon as the thing has been handed over to the warrantor
[002] he who vouched to warranty will be discharged,¹ and let him who vindicates then
[003] count by words of appeal against the warrantor as he had earlier counted against
[004] the man first seised. The warrantor may vouch in the same way,² from warrantor
[005] to warrantor, several as well as one. ³<If one who has vouched a warrantor cannot
[006] produce him without aid of the king, let a writ in this form issue to the sheriff:

The writ for causing a warrantor to appear by aid.

[008] ‘The king to the sheriff, greeting. We order you to cause such a one to come on
[009] such a day in such a year of our reign to such a county court (or ‘to such a court
[010] at such a place’) to answer such a one in the said county court (or ‘in the said
[011] court’) with respect to the warranty of a stolen horse (or other thing) which he
[012] sold him, as he says, and whereof in the same county court (or ‘in the same court’)
[013] he vouched him to warranty against such a one. Witness etc.’> <If one has bought
[014] stolen property thinking it to be lawful and has no warrantor, we must then distinguish
[015] whether he bought openly, as at a market or fair, and in the presence of the
[016] bailiffs and other reputable men who bear witness thereto, and paid toll and customs,
[017] [or did not]; a buyer of that kind will be discharged,⁴ as soon as he has restored the
[018] thing to the true owner, but no part of the price paid for the thing will be returned
[019] to him. If he can allege none of the above, he will be in peril.>⁵

A warranty is sometimes entered into maliciously and fraudulently.

[021] Occasionally one enters into a warranty and undertakes the defence wickedly and
[022] fraudulently and for a fee, as a hired champion;⁶ if this is exposed before the
[023] justices let the matter not proceed to the duel but let the country inquire into
[024] whether the said man has received a fee or not. If it is found that he has let him
[025] lose a foot and a fist, as [in the case] of Elias Pigun, a hired champion, before
[026] Martin of Pateshull [in the roll] of Hilary term in the fourth year of king Henry
[027] in the county of Essex.⁷

Account must be taken of whether what is stolen is large or very small.

[029] Since there is theft of a large thing and of a very small thing, account must therefore
[030] be taken of the property stolen, what and of what kind it is. No christian is
[031] to be put to death for petty theft or for a trifle, but let him be punished in another
[032] way,⁸ ⁹lest ease of pardon furnish others with the occasion for offending¹⁰ and lest
[033] wrongdoing remain unpunished.¹¹ Thus if a thief has been convicted, depending
[034] upon the kind of thing stolen and its value let him

Notes

1. Glanvill, x, 15

2. Ibid.

3. New paragraph; suprai, 390

4. Glanvill, x, 17

5. Glanvill, x, 17; ‘vitae amissionis,’ Fleta adds, ii, ca. 36; this paragraph belongs infra at n. 7, as OA

6. Glanvill, ii, 3 ‘campio conductitius in curia producitur pro mercede’

7. Not in B.N.B.; C.R.R., viii, 271, 277; Selden Soc. vol. 1, no 192; Russell in Amer. Jour. of Legal Hist., iii, 251, 258. John Pigun a tenant of William Ralegh: infra iv, 210

8. Inst. Cnuti (ii. 2.1); Liebermann, i, 309-11; Richardson in Traditio, xiv, 399.

9-10. C. 23, qu. 4, ca. 33: supra 369

11. D. 9.2.51.2: ‘neque impunita maleficia esse oporteat’; X. 5.39, ca. 35: ‘ne crimina remaneant impunita’