Bracton: Thorne Edition: English. Volume 4, Page 284

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Volume 4, Page 284

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[001] they ought not to fly to a forbidden judicial enquiry. But it will be otherwise [if]
[002] a lay fee is disputed, unless it has been dedicated and consecrated to God and made
[003] a sacred thing, which is not true of a thing given in free and perpetual alms.¹

Of the exception against the writ; where it ought to fall and where it ought not.

[005] ²The jurisdiction of the judge having been thus confirmed, let the writ next be heard,
[006] by which the right of action ought to be expedited and expounded, [and] that having
[007] been heard, the tenant may consider whether an exception may lie for him on the
[008] writ, because many exceptions lie for a tenant against the writ. The writ must agree
[009] with the action and must be impetrated in an appropriate case, otherwise it will be
[010] valueless. For example, if in the demesnes of the lord king the great writ of right
[011] patent is impetrated instead of the little writ of right close according to the custom
[012] of the manor, [the writ falls though the action does not,] or conversely. Nevertheless
[013] he may have recourse to the other writ of right, proper to his case, despite the fact
[014] that he first took action by a writ that did not lie, which is regarded as null,³ ⁴<as in
[015] the eyre of Roger de Thurkelby in the twenty-ninth year of king Henry in the county
[016] of Nottingham.>⁵ And so if the order of writs is not observed, where several actions
[017] are available and he first sues by a writ of right on the property, that is, on both the
[018] right and the possession, he may not afterwards descend to lesser actions on the
[019] possession; if he does so, the action on the possession falls together with the writ.⁶
[020] [But though process had proceeded by writ of right, until the view is claimed the
[021] demandant may change his mind and revert to lesser pleas, as to the assise of novel
[022] disseisin and mortdancestor and other pleas, as [in the roll] of Easter term in the
[023] twelfth year of king Henry in the county of Berkshire, [the case] of Henry of the
[024] Exchequer, for there he descended to an assise of novel disseisin after a writ of right.]⁷
[025] ⁸<The order of writs may be well enough understood from what is said above.>⁹ A
[026] writ also falls if it is impetrated as to the means and quality of an act, where it ought
[027] to be impetrated as to the act itself,

Notes

1. Supra 265, 266

2. Supra i, 163 (full collation)

3. Supra ii, 321, iii, 38

4. Supra i, 418

5. Not in B.N.B.,; supra i, xiv, 370

6. Supra ii, 319

7. Not in B.N.B.; not on roll for Easter 12

8. Supra i, 418

9. Supra ii, 297, 319