Bracton: Thorne Edition: English. Volume 4, Page 267

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Volume 4, Page 267

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[001] where the prohibition did not lie, the chief and principal debtor was summoned,
[002] and in the second the sureties were summoned and impleaded, though the principal
[003] debtor was solvent, and where after the prohibition it was adjudged in the secular
[004] court that the parson should betake himself to the principal debtor who was solvent,
[005] and that the sureties be quit. Hence it seems that if the principal debtor were not
[006] solvent, the parson could sue the sureties in the ecclesiastical court despite a prohibition.
[007] A prohibition will not lie in a testamentary or a matrimonial cause because
[008] pleas of that kind are specially excepted, [nor as to matters which are] quasi-spiritual
[009] or annexed to spiritualities, [Nor as to anything accessory to such. ‘Accessory,’ I
[010] say, as the obligation of a surety, as in the sale of tithes mentioned above.] as¹ in the
[011] case of promises made for a matrimonial causa, when the contract is first entered
[012] into,² for the giving of money in the name of maritagium;³ it is otherwise if a tenement
[013] is promised. And that such money may be claimed notwithstanding a prohibition
[014] may be found [in the roll] of Michaelmas term in the fourteenth and the beginning
[015] of the fifteenth years of king Henry in the county of Suffolk, [the case] of Hugh de
[016] Monte Canisio.⁴ To the same effect is a case [in the roll] of Trinity term in the fifteenth
[017] year of king Henry in the county of Oxford, in which the prior of Bicester was judge.⁵
[018] One must always consider the reason for which a thing is done or promised.

A prohibition does not lie by reason of something accessory.

[020] If the matter is accessory to a testamentary cause a prohibition does not lie, as where
[021] money is bequeathed and claimed as a debt in the ecclesiastical court, by virtue of the
[022] testamentary action. Nor does it lie if a testator bequeaths money owed him, provided
[023] the debt was acknowledged and proved in his lifetime, for sums of that kind
[024] are reckoned among the testator's goods and belong to executors.⁶ But if debts are
[025] claimed by executors which have not been acknowledged or proved in the testator's
[026] lifetime, [and] the debtors do not willingly acknowledge them after his death, such
[027] debts are not reckoned among the testator's goods and if they are claimed by the
[028] executors or the heir in the ecclesiastical forum a prohibition will lie; the suit must
[029] be brought in the secular forum.⁷ Actions of this kind are hereditary and belong to
[030] heirs and

Notes

1. ‘ut’; om: ‘vel annexa’

2. ‘factis ob causam . . . contractus’

3. Infra 282; B.N.B., no. 683

4. B.N.B., no. 442; C.R.R., xiv, no. 575

5. B.N.B., no. 570; C.R.R., xiv, no. 1544

6. Supra ii, 181

7. B.N.B., no. 810