Bracton: Thorne Edition: English. Volume 4, Page 246

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Volume 4, Page 246

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[001] which are dilatory to the action, extraneous to the action, so to speak, and therefore
[002] do not extinguish it, though they defer it temporarily.

When exceptions are to be raised and when not.

[004] Some exceptions are to be put forward at the beginning of the suit, in the preliminary
[005] stages of trials¹ and before claiming the view, to extinguish the proceeding and keep
[006] it from continuing, as those raised against the jurisdiction and against the persons of
[007] judges who lack the authority to judge. Also those which lie against the person of the
[008] demandant and against the writ. If these exceptions are not raised at the beginning
[009] of the suit, and the tenant proceeds to claiming the view, if he wishes to put them
[010] forward after having sought the view, he will not be heard, because by claiming the
[011] view he is taken to have tacitly renounced them and to have granted the jurisdiction
[012] of the judge and that everything relating to the validity of the action has proceeded
[013] in proper order.

Some exceptions must be raised before and some after the view.

[015] There are some [exceptions] which follow the view, as to which the tenant can [not]
[016] be advised until the demandant has made him the view [and a thing certain is brought
[017] before the court as to which he ought to answer] that he may then know whether he
[018] holds what is claimed, all of it or part or none, [And so with respect to the appurtenances]
[019] [as] where there is error as to the place where the thing claimed is situated.
[020] These precede the litis contestatio. And what if the view is not sought? Nevertheless
[021] they ought to be raised in order, each in its proper place, beginning with the more
[022] worthy, as with the jurisdiction of the judge and his person,² since the judge is
[023] the principal part of a judicial proceeding. Then that against the person of the
[024] demandant, if any exception lies against his person.³ Then against the writ, then
[025] if any arises against the demandant from the person of the tenant, then that arising
[026] from the thing, as that he holds nothing thereof, or nothing except his portion, and
[027] so of the appurtenances, and then any that lie by reason of the place. If none of the
[028] aforesaid exceptions lies, or if it does it is tacitly renounced, as said above, let that
[029] be raised which lies by reason of the law, of which there are many, as where, if it is
[030] alleged before such a judge that A. claims against B. so much land with the appurtenances
[031] in such a vill as his right,⁴ [it is excepted that] no right can descend to the
[032] demandant. As an order is observed in claiming, so one ought to be observed in excepting.
[033] There are two exceptions which may be put forward at any time, even after
[034] judgment, namely, that of ‘not his proper judge’ and of ‘unauthorized procurator,’
[035] since with such there is no legal proceeding, no legal controversy.⁵ And as it is
[036] necessary

Notes

1. Tancred, 126, 196; supra 180

2. Tancred, 140

3. Tancred, 141

4. ‘ut si diceretur . . . ius suum,’ from lines 32-34

5. C. 2.12.24; Tancred, 142 (‘etiam’ for ‘et’ and ‘scilicet’ for ‘sicut,’ as Tancred); Drogheda, 109; supra 63, 159