Bracton: Thorne Edition: English. Volume 4, Page 247

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Volume 4, Page 247

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[001] to put forward, support and prove an action, as said above, so that a prima facie case
[002] is made out, so with an exception, in order to ascertain whether it belongs to the exceptor
[003] as the action does to the actor, for though an exception may lie against an
[004] action, nevertheless, as said above, it is not everyone who may raise it.

A replication lies against an exception.

[006] Though at the outset an exception seems adequate, the demandant may be aided by
[007] way of replication, as where one sues, the tenant may except on the ground of a subsequent
[008] agreement that he not sue, against which the replication may be made by the
[009] demandant on the ground of a later agreement that he may sue.¹[An agreement that
[010] he not sue, afterwards agreed that he may sue. Here the first agreement is nullified by
[011] the second, not indeed ipso jure, but by way of replication.]² And so of similar matters,
[012] with respect to limitations and conditions put into contracts, as where it is agreed at
[013] the making of the contract that something be done or not done, and if it is done or not
[014] done that the [other] contracting party may do such a thing or may not, or that if it
[015] is not done in a certain way, that then such a thing may be done, as above, [of gifts.]³

A triplication lies against a replication.

[017] A triplication follows a replication, and a quadruplication a triplication,⁴ for good
[018] reason, and so beyond, ad infinitum. Thus an action may at the outset be said to be
[019] good prima facie, but then nullified by an exception, and similarly, the exception may
[020] be good but nullified by a replication, and so on.

Some exceptions are perpetual and some temporary.

[022] Exceptions are perpetual though they proceed from temporal actions,⁵ because it is
[023] not in the tenant's power to except when he wishes, though the actor may choose when
[024] he wishes to sue. ⁶In putting forward exceptions, the order described above is necessary,
[025] though some do not observe it, perhaps because they think that, provided they
[026] put one forward, before its time or out of order, with the protestation that the benefit
[027] of the others be saved them, without specifying which, that if they fail in the proof
[028] of one they may have recourse to the others.⁷

One may use several exceptions.

[030] One may use several different dilatory exceptions, provided they are raised in the
[031] proper order, but if several peremptory [exceptions] lie, the tenant must put forward
[032] and prove one, as is touched upon above [of actions,]⁸ as where several actions are
[033] available to a person he must sue one,

Notes

1-2. D. 2.14.27.2; supra ii, 288, nn. 12-13; om: ‘Ut si dicatur’

3. Supra ii, 71

4. Tancred, 146

5. Tancred, 145: ‘fere omnes exceptiones perpetuae sunt, licet descendant a temporalibus actionibus’; supra ii, 157, 293, iii, 168

6-7. Tancred, 141-2: ‘Hunc credo rectum ordinem proponendi exceptiones fori declinatorias. Quidam tamen ordinem istum non servant, sed dum unam proponunt protestantur sibi salvum esse debere beneficium ceterarum, ut si in proposita [‘probatione’] defecerint possint ad alias habere recursum. Sed cautius est quod primo diximus.’

8. Supra ii, 323