Bracton: Thorne Edition: English. Volume 3, Page 339

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Bracton Online -- English

Volume 3, Page 339

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[001] of those who swear saving the view.¹ If everything is clear and full in the record, there
[002] is no place for a certification, but let the plaintiff sue for a conviction if he wishes.

When a conviction lies and when not.

[004] In order to understand more clearly when a conviction lies and when not, we must
[005] see by the record whether the assise was taken in the manner of an assise or in the
[006] manner of a jury, an exception having been raised or not raised. [Also whether it has
[007] been taken in the tenant's presence or in his absence.]² If an exception was there
[008] put forward, it is either peremptory to the writ only, not the action, because of an
[009] error as to a name or a place, as that of a county or vill, which does not touch the
[010] assise, [Here since the assise and action remain untouched, no conviction will lie,
[011] though the jurors speak falsely or err, because nothing falls except the writ, the
[012] assise remaining intact, and [because] the truth of such matters is ascertained equally
[013] well without an oath as with.]³ [or] peremptory to the assise and the writ, because
[014] of an error as to the thing, as where one claims a tenement by the assise when he
[015] ought to claim a rent. If the jurors find for the demandant a conviction will lie, if the
[016] assise is taken in the manner of an assise, otherwise if in the manner of a jury, and
[017] thus by the assise or the jury the action will be determined. If the writ is good, when
[018] the plaintiff or demandant puts forward his intentio and [supports it according to]
[019] the clauses of the writ, the tenant may except against the intentio and the clauses
[020] of the writ and deny them completely or in part. ⁴The plaintiff or demandant must
[021] then prove his intentio by the assise, in which case, if the jurors swear falsely a conviction
[022] will lie, because the assise is taken on the clauses aforesaid in the manner
[023] of an assise. If the exception is one which does not touch any clause of the writ, and
[024] thus the plaintiff's intentio is admitted completely, though⁵ the plaint appears rightful
[025] it may nevertheless be nullified by an exception, as where the tenant says that he
[026] is in possession and rightfully so by an agreement or condition, and that this he is
[027] prepared to prove. When it cannot be denied, the preceding action and assise is
[028] extinguished [and] another action put forward by way of exception arises.⁶ He
[029] therefore must prove the agreement,⁷ which may be done in many ways. It may
[030] sometimes be proved by an instrument and witnesses, sometimes in the absence of
[031] instruments, by the assise taken in the manner of a jury, with the consent and
[032] agreement of both parties. [They must of necessity consent, because if the proponent
[033] is unwilling to prove what he says, the exception will be void and the plaintiff will
[034] recover; if the plaintiff is unwilling⁸ to put himself on a jury

Notes

1. Supra 63

2. Infra 340

3. Om: ‘Si autem . . . fuerit’

4. New sentence

5. ‘licet’

6. ‘incidet . . . exceptionis,’ from line 28; om: ‘Ut si’

7. Om: ‘quae est . . . assisam,’ redundant

8. ‘noluerit,’ OA, LA, MC, CE, OB, MB, MG, CM