Bracton: Thorne Edition: English. Volume 3, Page 68

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Volume 3, Page 68

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[001] the assise and show why it should remain, [for that reason the plaintiff must be
[002] carefully examined, that he may show how it is his free tenement and what sort¹ of
[003] entry he has in it, as will be explained more fully below [in the portion] on the questions
[004] to be put by the justices.] [and] the jurors, if they swear falsely are to be convicted
[005] of perjury, whether they swear falsely as to the articles of the assise or to
[006] matters which do not touch the assise, because it is taken in the manner of an assise,
[007] not in that of a jury by consent of the parties.

On the questions to be put when the parties appear in court

[009] After the parties have appeared in court, and the writ by force of which the judge
[010] has cognisance has been heard and the judge confirmed,² the writ and complaint
[011] having been heard, we must first ascertain from the plaintiff whether he has a cause
[012] of action, that he may be party to the suit. For that reason we must look to the duty of
[013] the judge. His duty is to examine the case diligently, not only diligently but most
[014] diligently, according to the saying of the blessed Job, who said ‘the cause of which I
[015] was ignorant I have examined most diligently.’³ He ought to question both sides,
[016] both the actor and reus, the actor, that is, the demandant or plaintiff, with respect to
[017] his right or plaint, in order to ascertain whether he has an action or plaint, and also
[018] to ascertain whether the recognition ought to proceed in the manner of an assise or
[019] of a jury, and the defendant, to see whether an exception is available to him and of
[020] what sort. If it is a real action, the demandant must show that he has a right to claim,
[021] as more fully below [in the portion] on proprietary actions.⁴ In the same way, the
[022] plaintiff must show that he has an interest enabling him to sue, for it is not enough
[023] for one to say that another has disseised him of his free tenement, thus putting forward
[024] his intentio, unless he supports it by some probable or presumptively true
[025] explanation, as where he says that such a one has disseised him of such a tenement
[026] which descended to him by the causa of succession, or gift, or dower, or by virtue
[027] of some other justa causa of acquiring, of which he was in seisin for so long a time
[028] until the defendant wrongfully disseised⁵ him thereof, or that he held that tenement,
[029] regardless of the kind of entry he had, for so long a time that he could not be disseised
[030] without judgment, ⁶<because when one sues to obtain possession of another's
[031] property, he ought to show his right, by which he may prove the thing to be his,
[032] otherwise he will fail, despite the fact that the thing does not belong to him who holds
[033] it, as C. 2.1.4 and C. 3.32.27 [28] and C. 2, qu.5, ca.1,> [or] regardless of how he was in
[034] seisin and no matter for how long, whether for a long or a short time, that it was not
[035] for that plaintiff to disseise [him], since he had no right or spark⁷ of right to eject nor
[036] any action in a suit on the property.⁸<Because no matter how one is in seisin, whether
[037] by disseisin or

Notes

1. ‘qualem’ for ‘quem,’ as 70 line 22

2. Infra 78

3. Supra ii, 303

4. Infra iv, 169

5. ‘disseisivit’

6. Supra i, 395; Tancred, 167; supra i, xiv, n. 80

7. ‘scintillam’

8. Supra i, 395