Bracton: Thorne Edition: English. Volume 3, Page 146

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Volume 3, Page 146

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[001] but says that before he was willing to take his homage from such tenement, the same
[002] plaintiff granted that if he, the tenant, should find within a certain time that the same
[003] plaintiff held something in capite of the lord king (or if he should do or not do some
[004] act, and so according to whatever agreement was made etc., as above) that it would
[005] be fully allowable for him to enter into the aforesaid tenement and to hold it quietly
[006] to himself and his heirs forever, without contradiction or objection by the aforesaid
[007] plaintiff and his heirs. And because within the aforesaid term he found that the
[008] plaintiff held such land and such of the lord king (or because he acted contrary to the
[009] aforesaid agreement, or because he did not act in accordance with the agreement)
[010] he therefore put himself into seisin because of the aforesaid agreement.¹ And thus he
[011] says that though the gift was valid and complete from the beginning, that it was
[012] made invalid by the agreement aforesaid.² [If] the plaintiff replies, he either denies the
[013] agreement completely or acknowledges it. If he acknowledges it and the contrary
[014] was done, it will then be obvious that [the tenant] did him no³ injuria. If he denies it
[015] completely, since by such denial the matter is put in doubt [the tenant] must prove
[016] it, otherwise he will be undefended, the exception being, so to speak, void. Thus the
[017] plaintiff will recover without a jury, if he is out of seisin;⁴ if he is in seisin he will be
[018] given an exception. The agreement may be proved⁵ by a writing, as where a written
[019] document has been drawn between them on the aforesaid agreement in the presence
[020] of trustworthy men, who were present and heard the agreement, before homage
[021] taken or after, and who can speak of their own sight and hearing. If it is denied by the
[022] plaintiff, the charter and the agreement may be proved by witnesses, though they
[023] are members of his household, joined with the others of the jury, or by a comparison
[024] [of seals] or in some other way. If the instrument is proved, it will thus be clear that
[025] such was the agreement. But it is not thereby proved that the agreement was satisfied.
[026] It will therefore be necessary to proceed further, by investigating by the assise
[027] taken in the manner of a jury, and by the witnesses named in the writing, whether
[028] what was done was in accordance with the agreement or contrary to it.⁶ We must
[029] proceed⁷ in the same way, when the writing and agreement have been proved, as
[030] when they have been acknowledged at the outset, for though they were acknowledged,
[031] we would still have to see whether the agreement was satisfied or not. And
[032] that we must proceed in this way may be seen

Notes

1. This is the case of Wake v. Montague heard by Bracton: Somerset Pleas no. 1516. The names appear in the margins of two MSS: supra i, p. xii

2. Supra 36, 123-4

3. ‘nullam’

4. ‘si fuerit extra seisinam,’ from line 17; infra 148

5. Om: ‘cum fuerit extra seisinam’

6. Om: ‘vel si . . . in conventione,’ redundant

7. ‘procedendum’