Bracton: Thorne Edition: English. Volume 3, Page 142

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Volume 3, Page 142

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When a bailiff replies without his lord; what power he has and what he can and cannot do.

[002] The writ also contains the words ‘Put such a one, or his bailiff if he has not been
[003] found, under gage and safe pledges.’ Hence we must see what a bailiff may do and
[004] what not. It is clear that he cannot do everything his lord may do. He cannot admit
[005] the disseisin so as to prevent the assise from proceeding, but the truth of the matter
[006] will be declared by the assise. Nor can he compromise a doubtful claim, nor come to
[007] an agreement, nor make a wager, nor do any other thing by which the loss of his
[008] lord's seisin is facilitated, in whole or in part, only if it is by judgment and the assise.
[009] An attorney, on the other hand, may do all these things. There is thus a great difference
[010] between a responsalis and an attorney. He may, however, speak against the
[011] assise, just as the principal lord himself may, that it remain, perpetually or for a time,
[012] ¹<also against the jurors and put forward [any] reason for suspicion.> [and] against
[013] the jurors, the plaintiff and the judge, if he has no jurisdiction, and against the writ.
[014] And generally, he will have all the exceptions the principal lord would have. [The
[015] writ also says that] the sheriff have the names of the pledges and the writ: ‘the names
[016] of the pledges,’ as where the plaintiff retracts, [that] all the pledges may be in mercy;
[017] ²<Security is to be given him to whom the advantage ought to accrue, for if security is
[018] lacking, the pursuit of satisfaction, that is, of the amercement, will be difficult, because
[019] of liberties, I mean.> ‘the writ,’ that by it the judge may have the power of
[020] taking cognisance. If he does not have the writ before the justices, where it is lost,
[021] we must see whether the matter is new or already begun. If it is new, no jurors having
[022] yet been chosen and no view of the tenement made, though it has been publicly read
[023] and heard in the county court,³ another writ will be necessary. If it is not new, the
[024] writ having been publicly read and heard in the county court and a view of the land
[025] made, the assise will proceed despite loss of the writ.⁴

Of matters which impede restitution, temporarily or permanently.

[027] ⁵There are some matters which impede restitution [temporarily or permanently,
[028] permanently, because they give rise to a peremptory exception,]⁶ and when they fall
[029] into the assise are preliminary and must be determined first, since they are put forward
[030] first, and determined in the manner of a jury, not in that of

Notes

1. Supra i, 399

2. Ibid.

3. ‘quamvis . . . auditum,’ from line 25

4. Supra 82, infra 259; B.N.B., no. 1552

5. Infra 149

6. ‘quia exceptionem pariunt peremptoriam,’ from line 33