Bracton: Thorne Edition: English. Volume 4, Page 179

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Volume 4, Page 179

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[001] Alan of Bassingburn and Robert d'Lisle, concerning the advowson of the church of
[002] Wimpole, in which the same Alan claimed the advowson on the seisin of the ancestors
[003] of the aforesaid Robert, the donor.¹ The right also descends to one by the
[004] modus of the gift,² the true and near heirs of the donor being completely excluded
[005] from the succession, as above [in the portion] on gifts,³ [not by descent but by the
[006] modus.]⁴

The demandant's intentio having been put forward, let the tenant see whether there is jurisdiction and a justice who can judge. Also whether there is a demandant.

[008] The demandant's claim having thus been put forward and supported, as aforesaid,
[009] let the tenant first see whether there is a judicial proceeding,⁵ that is, a justice who
[010] can judge and has jurisdiction, ordinary or delegated, because on this a peremptory
[011] exception may sometimes be available to him, whether there is an actor, demandant
[012] or plaintiff, and then whether he has an action. If he has an action, then whether
[013] it may proceed at once or ought to remain for a long time in suspense, for on this
[014] an exception may lie for the tenant, dilatory or peremptory according as it is⁶ put
[015] forward against the action itself or against the person of him who sues.⁷ If there is
[016] nothing which may be excepted against the aforesaid, then we must see whether
[017] the libellus conventionalis,⁸ the writ, that is, is proper for the action and not irregular
[018] in any way, since on this an exception may be given the tenant.⁹ If it is proper
[019] in every way, we must then first see whether the tenant holds the whole thing
[020] sought, or part or nothing at all, and if so, then how much, since a thing certain
[021] ought to be brought before the court, and also whether the thing claimed falls
[022] within the jurisdiction of the judge. For that reason a view of the thing sought is
[023] claimed, for from this an exception may lie for the tenant, lest the action be vain
[024] since the tenant¹⁰ cannot restore the thing, or not the entire thing claimed. When
[025] all these are in order, let the tenant then answer to the principal matter, by himself
[026] or by an attorney, unless he has a warrantor whom he wishes to vouch; for whom,¹¹
[027] after he has warranted, as will be explained below,¹² many exceptions lie which do
[028] not lie for the principal tenant. Conversely, many exceptions lie for the principal
[029] tenant which do not lie for the warrantor, if they are put forward in order and
[030] properly, and which, if the principal tenant omits them at the beginning of the suit,
[031] before he has vouched a warrantor, by vouching a warrantor he will be taken to
[032] have tacitly renounced, both for himself and for his warrantor.¹³

Notes

1. B.N.B., no. 1578; C.R.R. xi, no. 121; B.N.B., no. 488 (margin)

2. Supra 176

3. Supra ii, 68, 144, 267

4. Supra ii, 195, 200, iii, 272

5. Supra ii, 302

6. ‘fuerit’

7. Infra 292

8. Supra ii, 317

9. Infra 284-92

10. ‘tenens’; om: ‘cum’

11. ‘cui’

12. Infra 191

13. Infra 246