Bracton: Thorne Edition: English. Volume 4, Page 269

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Volume 4, Page 269

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[001] [by an instrument] of renunciation, [One cannot renounce to the prejudice of
[002] another.] as in the roll of Easter term in the sixteenth year of king Henry in the
[003] county of Devon, [the case] of Thomas le Butiller, archdeacon of Totton.¹ [But there
[004] the contrary was held, that a renunciation may prejudice persons other than the
[005] renunciant.]² Similarly a prohibition will not lie if one is made subject to the other
[006] jurisdiction by his own act, by appealing, as where one impleaded before an ecclesiastical
[007] judge, who is not his proper judge, appeals to another judge not his proper judge,
[008] and then betakes himself to a royal prohibition on the ground that a secular thing is
[009] being claimed; he ought not to be heard, [so far as his own person is concerned but
[010] not so far as the king is concerned, as was said above,] because what he once approved
[011] he cannot afterwards reject.³

It will not lie for a recent spoliation.

[013] A prohibition will not lie with respect to a recent spoliation, as where clerk despoils
[014] clerk of tithes or of other things the cognisance of which belongs to the ecclesiastical
[015] forum,⁴ because a restitution of this kind is not prejudicial to the patron's right of
[016] presentation.

Nor in a restitutory action.

[018] A prohibition will not lie in a restitutory action, when a church has been recently
[019] despoiled of some liberty granted to it at the time of its dedication, as that of having
[020] reasonable estovers in the patron's wood for housbot, heybote, fuel and the like, or
[021] of having common of pasture by reason of land given to the church as its endowment.⁵
[022] I say ‘recently,’ for if the spoliation is not recent the result will be otherwise.

Nor because of negligent prosecution.

[024] A prohibition will not lie where one, negligent and unmindful of his right,⁶ is slower
[025] than he ought to be in looking to his interests, because he brought the prohibition
[026] only when the case had proceeded to the point of judgment, or after judgment had
[027] been given, for after that there was no one who sued the plea, which was pleaded
[028] earlier, nor any judge who held the plea, which was not sued after the prohibition,
[029] which the plaintiff may attribute to his own negligence, though that would not be
[030] imputed to him had he acted in good time. And that the negligence of the plaintiff
[031] is not imputed to the judges is proved [in the roll] of

Notes

1. B.N.B., no. 678; not on remaining fragments of Easter 16 in C.R.R., xiv, 527-34

2. Reading: ‘Factum tamen fuit contrarium, quod renuntiatio . . . renuntianti’ (lines 4-5)

3. B.N.B., no. 544 (Easter 15), no. 766 (Trin. 17)

4. Supra 254, 263; cf. 264

5. B.N.B., no. 547; C.R.R., xiv, no. 1372 (Easter 1231); Flahiff in Mediaeval Studies, vii, 232, 257

6. C. 7.40.3.3.