Bracton: Thorne Edition: English. Volume 4, Page 245

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Volume 4, Page 245

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OF EXCEPTIONS

Of exceptions.

[003] Let us return to the day of summons, after postponements and essoins, on which,
[004] when the parties appear, the tenant has no warrantor to vouch, or if he has, vouches
[005] none. The demandant's intentio having been put forward in court before the justices
[006] and supported, as was said above,¹ and proof of it being offered, let the tenant then
[007] in order to nullify the action, put forward an exception (if he has such) and prove it,
[008] [that is], show that the exception is properly his, as in the case of actions and in the
[009] same way.² For exceptions take the place of actions, since he who excepts assumes the
[010] place of a plaintiff with respect to the burden of proof. It is with respect to actions
[011] that they are called exceptions, for one impugns the other. And as actores are armed
[012] with actions and girt, so to speak, with swords, so conversely rei are armed with exceptions
[013] and defended, so to speak, with shields.

What an exception is.

[015] We first must see what an exception is and into what divisions it falls.³ It is clear that
[016] an exception is the elision of an action,⁴ by which it is extinguished or deferred.

Of the kinds of exceptions.

[018] Exceptions are thus divided. Some are dilatory and some peremptory;⁵ this is the
[019] first and shortest⁶ division. Of the dilatory, some are peremptory to the jurisdiction
[020] and dilatory to the action, others are peremptory to the writ and dilatory to the action.
[021] Some exceptions are general, common to all pleas or actions; some special, which lie
[022] and are given against particular actions, for every action has its appropriate exceptions,
[023] depending on the form of the action, as may be seen above [in the portions]
[024] on assises and pleas of entry. General exceptions are those which apply generally to
[025] all pleas, as that against the jurisdiction, the person of the actor, that against the writ,
[026] [as] the exception which arises by virtue of time, according to the different kinds of
[027] pleas, and that which lies because of the place, because of an error in impetration, of
[028] which [something] was said above,⁷ and

Notes

1. Supra ii, 282

2-3. Azo, Summa Inst. 4.13.pr.; Richardson, Bracton, 140

4. B.N.B., no. 716 (margin): ‘Responsio Henrici ad illam exceptionem elidendam . . .’; Drogheda, 372: ‘Et est exceptio actionis elisio’

5. Tancred, 140

6. ‘brevissima’

7. Supra iii, 79