Bracton: Thorne Edition: English. Volume 3, Page 335

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Volume 3, Page 335

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[001] ¹ In all assises and juries generally, if, when the parties are present in court, another
[002] day is given before the taking without essoin, and the tenant agrees that whether he
[003] comes or does not the assise or the jury may be taken by default, if the assise or
[004] jury finds for the demandant, let the court not proceed to judgment precisely on that
[005] day, but let another be given, at which, if the tenant does not appear, let the land
[006] then be seized into the hand of the lord king for the second default, and let him be
[007] summoned to appear at another day to hear his judgment, on which day, whether he
[008] comes or not, the demandant will recover his seisin. If it has been further agreed
[009] that the assise be taken and judgment rendered on the first day and the first default,
[010] then let that be done, as agreed, and no other day will be awaited. Since this assise
[011] involves seisin and right, so that if the tenement is proved to be lay fee it cannot
[012] subsequently be considered free alms, nor conversely, quaere whether a conviction
[013] ought to lie if the twelve jurors swear falsely. And that it ought to lie, if it is taken in
[014] the manner of an assise, is proved in the roll of the eyre of the abbot of Reading and
[015] Martin of Pateshull in the fifth year of king Henry in the county of Gloucester, an
[016] assise [beginning] ‘whether one hide of land,’ near the beginning [of the roll].² To
[017] the same intent [in the roll] of Hilary term in the twelfth year of king Henry in the
[018] county of Buckingham, an assise [beginning] ‘whether two virgates of land.’³
[019] [This is true unless it is sought a long time after the taking of the assise, [as in the
[020] case] in the county of Gloucester, because after a long interval of time the judgment
[021] passes over into the authority of res judicata.⁴ The length of time is not defined, but
[022] in that eyre a conviction sought after a lapse of sixteen years was not granted.]⁵

We must see what and how much the plaintiff has put in his view.

[024] When any one of the aforesaid assises is taken in the manner of an assise, the justices
[025] must see and carefully investigate what and how much the plaintiff has put in his
[026] view, because beyond what is brought before the court the power of a justice does
[027] not extend, nor the oath of a juror, because, though the plaintiff has been disseised of
[028] a larger amount, [if] he does not put the whole in his view, as to the remander the
[029] justice cannot judge nor the juror swear, because he swears only as to that which the
[030] plaintiff shows him. Therefore if they extend their oath further, there will be no
[031] place for a conviction, since the oath is a nullity, but an assise of novel disseisin will
[032] lie, against the jurors only, not against him who took what was adjudged. But if they
[033] have given the plaintiff the whole of what he put in his view, and the

Notes

1. New paragraph; out of place

2. Selden Soc. vol. 59, no. 77; not in B.N.B.

3. B.N.B., no. 285; C.R.R., xiii, no. 672

4. Tancred, 275; infra 342

5. End of utrum