Bracton: Thorne Edition: English. Volume 4, Page 249

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Volume 4, Page 249

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What forum the plaintiff ought to follow; what matters pertain to the secular court.

[002] [003] that rule fails in [these] cases, because of the difference between jurisdictions and
[004] causes, [Of spiritual and temporal things and their accessories.]³ as in matrimonial
[005] causes and things promised because of marriage, which must be determined in the
[006] ecclesiastical forum because he who has jurisdiction in the principal matter will have
[007] jurisdiction in matters accessory,⁴ and in the same way if a plea is sued in the secular
[008] forum which belongs to the crown and dignity of the king and faith has been pledged
[009] in the contract, cognisance of the principal matter will not on that account belong to
[010] the ecclesiastical judge. The rule also fails in a testamentary cause and in many other
[011] ecclesiastical causes. By reason of crime, one is sued where he offends, as where he
[012] has committed a crime in another's land,⁵ for it is where one offends that he is subject
[013] to the law, as may be seen in outfangethef.⁶ Also by reason of contract, for he who
[014] contracted must be sued where he contracted.⁷ Also by reason of the thing sought, as
[015] where a clerk claims [against a clerk or a layman] a debt unconnected with a testament
[016] or marriage; he ought to sue in the secular forum. And so if he claims a lay fee,
[017] the action will be before the lord of the fee,⁸ as an hereditatis petitio by writ of right.
[018] It must be tried before the lord of the fee, or if the lord is negligent, before the sheriff,
[019] because by reason of the negligence of one's proper judge,⁹ namely, the lord, the plea
[020] is transferred to the county, and then before the king and his justices, for many and
[021] different reasons.¹⁰

If a man has chosen one judge he may not easily have recourse to another.

[023] If one chooses a judge of his own will, he ought not to have recourse to the audience
[024] of another by his own will alone, since he is made his judge by his own consent,¹¹ [This
[025] is true unless a royal prohibition causes it to be done, because one cannot alter the
[026] king's jurisdiction by renouncing it to the prejudice of the royal dignity, as will be
[027] explained below.]¹² though it is generally true that a judgment given by one not his
[028] proper judge is without effect, since¹³ it is sometimes to the actor's advantage to bring
[029] the reus before a judge to whose jurisdiction he is made subject by consent, rather
[030] than before him to whom he is subject by reason of his domicile,¹⁴ provided that he
[031] has the power of coercion so that he may ensure the execution of his judgment, for if
[032] his proper judge is negligent, the other, though not his proper judge, may be more
[033] diligent.

Notes

3. Rubric

4. Infra 267

5. Tancred, 128; infra 283

6. Supra ii, 436

7. Tancred, 128: ‘item ratione contractus convenitur quis apud non suum iudicem sed apud alium, ubi contraxit.’; infra 283

8. Tancred, 129

9. Tancred, 129: ‘ratione negligentiae proprii iudicis’

10. Supra ii, 300

11. Tancred, 130: ‘quia per factum suum factus est ille de eius iurisdictione’

12. ‘hoc verum . . . dicetur,’ from lines 30-32; supra ii, 74; infra 251, 268, 277, 283

13. ‘quoniam’ for ‘quamvis,’ as Tancred

14. Tancred, 130: ‘quamvis generaliter verum sit quod sententia a non suo iudice lata non tenet . . . quoniam expedit actori convenire reum sub iudice de cuius factus est iurisdictione, magis quam sub eo cui subest domicilii ratione.’