Bracton: Thorne Edition: English. Volume 2, Page 447

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Bracton Online -- English

Volume 2, Page 447

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[001] Certainly it can, so that the judgment may be emended. If beasts are taken by a
[002] servant without the court's judgment and they are afterwards claimed from the
[003] lord, in his presence, who forbids their release by gage and pledges, both will be
[004] held liable, as is evident, the one for the taking, the other for the refusal. Though
[005] the lord avows the taking he does not free the servant but burdens himself, and
[006] both are then liable for the servant's deed, the servant because he took, and the
[007] lord doubly, because he avows his servant's act and refuses to release the beasts.
[008] There are some who say that no one is bound to answer for a refusal until the
[009] seizure is proved wrongful. To this [it may be replied] that whether the seizure is
[010] lawful or unlawful, refusal to release will always be unlawful.¹ It will be otherwise
[011] if no seizure is proved,² for where nothing at all is taken there will be nothing to
[012] be refused. And so if though there was a seizure nothing was claimed;³ if nothing is
[013] claimed, nothing is denied. Suppose that nothing was done by the court or the
[014] lord of the court but only by the servant, as where, without leave of lord or court,
[015] he tallages the free tenants as villeins, or those who allege that they are free though
[016] they are villeins, and afterwards on his own authority levies a distress therefor
[017] and the beasts are released by the sheriff on gage and pledges, on the tenants'
[018] complaint, directed against the servant only and not the lord. Quaere whether the
[019] servant may or ought to answer without his lord and allow the matter to go to
[020] judgment without him. In this case the lord must be asked whether he avows his
[021] servant's act or not. If not, then the lord may emend it; if he avows or does not
[022] emend he makes the wrong his own, if wrong it be. When he has avowed it he
[023] can proceed to an inquest on the tallage, whether it is claimed lawfully or unlawfully,
[024] especially if the suit has been removed to the king's court. ⁴<See the case of
[025] Peter of Savoy and his tenants before the king's council at the exchequer at
[026] Westminster in the forty-sixth year of king Henry, [in the roll] of Easter term a
[027] little before Ascension Day.>⁵

When one's beasts have once been released by judgment and seized a second time.

[029] When beasts have been once released they ought not to be seized a second time,
[030] for the same reason, before the [first] plea has been determined by judgment of the
[031] county court.⁶ If they have been seized a second time let the sheriff cause them to
[032] be released again, with damages against the seizor, by this writ:⁷

The writ that beasts are to be released.

[034] ‘The king to the sheriff, greeting. A. has shown us that though he recently brought
[035] you our writ

Notes

1. Supra 446

2. Supra 440

3. Supra 440, 445

4. Supra i, 391

5. Not in B.N.B.; no roll extant

6. ‘per iudicium comitatus,’ from line 31

7. Cf. redisseisin: infra iii, 202