Bracton: Thorne Edition: English. Volume 3, Page 138

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Volume 3, Page 138

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[001] since he is bound to prove two and fails as to one, But since we ought so to deal with
[002] a matter that a thing prevail rather than perish,¹ let the assise proceed,² [and],
[003] whether it finds for him or against him, let him be in mercy for a false claim as to that
[004] part of his allegation he fails to prove. And let the same be done if it is neither in one
[005] nor the other, [let him be in mercy for the whole]. If there is but a single dwelling there
[006] it will be no vill, and thus the assise falls.] as where³ there is error in the name of the
[007] vill, either in a syllable or in a letter,⁴ which introduce the differences in names, as
[008] above more fully [in the portion] on errors.⁵ Sometimes the writ falls but the assise
[009] does not, as where the tenant excepts against the writ in this way, that the tenement
[010] is not in the vill named in the writ but in another, and the plaintiff says the contrary;
[011] let the judge acting ex officio inquire, an oath being taken, whether it is in one or the
[012] other, and whether the jurors say that it is here or there the matter is not thereby
[013] determined, because the exception is raised against the writ not the assise. Therefore
[014] let the assise stand, nor will there be any place for a wager, if the parties wished to
[015] agree that one lose if it is so and the other gain if it is not so, for if the jurors say
[016] that the tenement is not in the vill named in the writ, the writ falls but not the assise.
[017] Hence he may have recourse to a similar writ, whether he prays license to withdraw
[018] from his writ and that is granted him, or he withdraws without license, for whoever
[019] withdraws without license from a writ erroneously impetrated does not on that account
[020] withdraw from the action.⁶ If the jurors say that the tenement is in the vill
[021] named in the writ, whether that is true or not the assise will proceed and the matter
[022] will be determined by it, nor will the jurors be open to a conviction, since both parties
[023] put themselves on a jury as to that. If, because the jurors said that the tenement is
[024] in the other vill, the plaintiff withdraws⁷ and proceeds by a second writ and by other
[025] jurors, who find contrary to the first jurors, the assise will proceed nonetheless, since
[026] no exception is raised by the tenant. Nor are the first jurors thereby convicted of
[027] perjury. Nor is any further attention to be given to such exception, not only because
[028] it does not touch the substance of the matter, but because it was once determined by
[029] a jury with the consent of the parties, nor ought the tenant, as one who contradicts
[030] himself, to be heard if he wishes to raise the exception in the second trial brought on
[031] the second writ, since one alleging contraries ought not to be heard. ⁸If the jurors are
[032] in doubt and do not know in which vill the tenement is, let the plaintiff first be asked

Notes

1. D. 34.5.12

2. ‘procedat’

3. ‘ut si’

4. Infra 141

5. Supra 79

6. Supra 65

7. ‘se’ for ‘ si’

8. New paragraph