Bracton: Thorne Edition: English. Volume 3, Page 340

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Bracton Online -- English

Volume 3, Page 340

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[001] an action will be denied him.] in which case, because of the consent, no conviction
[002] will lie. And so if status is put forward in the manner of an exception. The assise is
[003] good if the plaintiff has a standing to sue in court. [If the tenant alleges that he is a
[004] villein] and cannot claim by the assise, he must prove that he is such, and, because
[005] the plaintiff's intentio is admitted completely,¹ that being proved or not proved, the
[006] action will be determined. The tenant may prove his exception in many ways, by
[007] kindred if he has them immediately on hand, or if not, on another day. ²<But such
[008] proof by kindred ought not be allowed, [lest the plaintiff be prejudiced] if status
[009] should afterwards be litigated, unless it is put forward by a lord against a villein
[010] within his potestas, in which case both status and the assise would be determined by
[011] one judgment, which would not be so if he were beyond [the lord's] potestas and
[012] asked judgment whether he ought to put himself on the assise with respect to [his]
[013] status before restitution, to which he ought not to be compelled unless he willingly
[014] adopts this course, since another action will be necessary.> If he has no kindred,
[015] then by a deed of purchase, and when he has no other [proof], then finally by the assise,
[016] against which the plaintiff may replicate in many ways with respect to his freedom
[017] and prove himself free, by his kindred or a deed of manumission or by the privilege,
[018] or that he is in a free status beyond the potestas of the lords, in which cases he may
[019] defend himself if he proves his replication. But if he has no [replication], or though
[020] he has, does not put it forward, then at the last the matter will be decided by the
[021] assise taken in the manner of a jury, nor will he later be prejudiced as to his status
[022] by that, whether the jury finds for him or against him, nor will a conviction lie,
[023] because it is not taken in the manner of an assise, nor does villeinage excepted touch
[024] the assise any more than does an agreement,³ but it always remains intact, though
[025] nullified by an exception.⁴ If the assise is taken in the tenant's absence, or if, though
[026] present, he does not except but puts himself on the assise at once, whether the jurors
[027] find for the one or for the other on the clauses of the writ and do so falsely, or if they
[028] say that there has been an agreement, or that the plaintiff is a villein or a bastard
[029] when he is not, or something of the kind which could be an exception had it been
[030] put forward by the tenant, a conviction will lie,⁵ because the assise is taken in the
[031] manner of an assise, not of a jury, there having been, so to speak, no consent by the
[032] plaintiff or demandant. If when the tenant is absent nothing is said against the assise,
[033] by the foresight of a wise judge let the jurors be required to give a reason for
[034] their verdict, [so that] if a conviction is afterwards sued, reasonable ignorance or
[035] honest mistake may excuse them.

A conviction will lie in all assises except the grand assise.

[037] In all assises except the grand assise a conviction will usually lie unless it is turned
[038] into a jury because of some incidental question

Notes

1. Om: ‘si personam . . . standi’

2. Supra i, 407, transposed from above

3. Supra 339

4. Supra 103, 105, 112, 113

5. Supra 150