Bracton: Thorne Edition: English. Volume 3, Page 67

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Volume 3, Page 67

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[001] he may not afterwards descend to lesser writs.¹ But if he withdraws only from the writ,
[002] where there is no judgment, he may well descend to others lower down.

²Where the tenant held nothing or lied by saying that he did not hold when he did.

[004] If one denies that he possesses, he may neither sue nor defend himself against the
[005] demandant to whom he lied on the basis of any right or causa existing prior to the lie,
[006] though he may well do so if the causa is subsequent. If he who said that he held
[007] nothing when the other withdrew, afterwards begins to defend as tenant and prays
[008] judgment against the demandant who says that he is in possession³ on the ground
[009] that he then claimed, because by claiming he admitted that he was out of possession,
[010] his answer will be no less effective because of the lie. ⁴ For example, suppose one
[011] says that he has a right in an advowson, and when he claims by writ of right the
[012] tenant answers that it is not he but another who holds the advowson and that he
[013] claims no right in it, so that the demandant withdraws from the writ and does not
[014] sue against the person said to be in seisin [to see] whether it is true or not, even for
[015] the purpose of exposing the exceptor's lie. If the church afterwards falls vacant and
[016] both present, he who withdrew and he who said he held nothing, [neither of them will
[017] obtain anything, so it seems,] the demandant [will not obtain] because by claiming
[018] he admitted that he was out of possession, and afterwards withdrew and sought
[019] nothing further.⁵ As to the tenant, we must see whether he lied in excepting or told
[020] the truth. If the truth, and he who in truth then held afterwards acknowledged and
[021] remitted his right to him, or raised no objection to his presentation, his presentation
[022] is good. If he lied, his presentation is still good and his lie without consequence,
[023] since no one sued to refute it,⁵ and so let the demandant begin his action again if
[024] he is confident of his right.]⁶ If, being present, he acknowledges the disseisin, he is to
[025] be put in gaol since he confesses an injuria contrary to the peace. If the plaintiff and
[026] all the recognitors are present, though the disseisor is not, appearing neither in his
[027] own person nor by his bailiff, nor by another who may speak on his behalf, let the
[028] assise proceed and the recognition be taken by default, because no one is to be
[029] spared in this matter, whether he is of full age or a minor, nor is the assise to be
[030] postponed for anyone; not even the king himself ought to be awaited should he
[031] be coming in the door. But in such circumstances, the plaintiff must be carefully examined
[032] and the jurors most carefully instructed so that they will speak the truth,
[033] since he against whom the assise is directed, were he present, could except against

Notes

1. Supra ii, 319

2. Rubric

3. ‘qui dicit se ipse sit in possessione’

4. ‘Casus de priori de Kynelworth et Waltero de Insula,’ in margin of OA, text of OC; supra i, 81, n.; B.N.B., i, 170; infra iv, 348

5. Infra iv, 348

6. Continued from 65, n. 4

2Where the tenant held nothing or lied by saying that he did not hold when he did.

Notes

²Where the tenant held nothing or lied by saying that he did not hold when he did.