Bracton: Thorne Edition: English. Volume 4, Page 262

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 262

Next

Go to Volume: Page:

[001] the prohibition is directed to the party only and he is unwilling to sue, there will be no
[002] judicial proceeding for the reason stated above, because it is to no avail if the judge
[003] wished to hold the plea if there is no one to sue.¹ But it will be better that it be made
[004] to all generally, lest the judges or the plaintiff proceed with impunity. But what if the
[005] judges delegate have² made others their subdelegates and they have cognisance of
[006] the cause? We must then see to whom the prohibition ought to be directed, whether
[007] to the principals or to the subdelegates, and it is then important whether they have
[008] subdelegated the entire cause³ or have reserved to themselves the principal parts of
[009] the proceedings, that is, the beginning, middle and end, that is, the contestatio, the
[010] argument on the testimony and final judgment. In that case, when they have so reserved
[011] something to themselves, it seems that the prohibition ought to lie [against
[012] those who] furnished authority to the subdelegates, since he is taken to do an act by
[013] whose authority it is done. If they have dissociated themselves from the entire cause
[014] and retained nothing for themselves, we must then see whether it was before the
[015] prohibition or after. If before, not knowing that any prohibition would intervene,
[016] it then suffices if the prohibition is directed to the subdelegates. If after the prohibition,
[017] it then may be presumed that their action was fraudulent. Consequently a prohibition
[018] directed to them will be good, as though no subdelegation had been made.

If the judges refuse to accept the prohibition and another supervenes. They ought to consider whether they have jurisdiction, and if they are in doubt, consult the justices. Of consultations of that kind.

[020] An exception to the jurisdiction having thus been raised, as said above, when the
[021] judges refuse to admit it let a prohibition issue. [If], after having considered whether
[022] they have jurisdiction or not, they decree a supersedeas, let the prosecution of the
[023] plaintiff remain. If they doubt whether a supersedeas is proper or not, the judges are
[024] sometimes wont to consult the justices as to whether they may proceed or must of
[025] necessity desist, whether cognisance belongs to them or does not, in which case a reply
[026] is made⁴ to their consultations by the justices⁵ in several ways, accordingly as the
[027] prohibition ought or ought not to lie. A writ for replying [to the consultation of the
[028] judges] in the name of the justices.

Writ for replying to the consultation of the judges.

[030] ‘To the venerable and⁶ beloved in Christ such a one and his fellow judges, greeting. I
[031] have received your letters stating that though a certain cause, which is being argued
[032] before you, between A., the prior and such a convent, and B.

Notes

1. Om: ‘et sic . . . iudicium,’ redundant; infra 276

2. ‘subdelegaverint’

3. ‘ad totam causam,’ as below and infra 279

4. ‘fit’

5. ‘iustitiarios’

6. ‘et’