Bracton: Thorne Edition: English. Volume 4, Page 330

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Volume 4, Page 330

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The exception arising from the delict of spoliation, until he has been restored.

[002] A dilatory exception arising from the person of the demandant lies for the tenant ex
[003] delicto, as where the tenant has been despoiled by the demandant and not restored, in
[004] whole or in part; the tenant will not reply until restitution has been made, because
[005] we ought not to fight naked nor oppose our enemies unarmed, nor is one taken to be
[006] restored who has not been restored completely, just as a thing is not taken to be
[007] restored which is restored damaged, as may be seen above [in the portion] on
[008] spoliations, of¹ disseisins and restitutions.

A dilatory exception because the right is common, so that he cannot answer without another, or because the matter touches others without whom etc.

[010] A peremptory exception, sometimes a dilatory exception, arising from the person
[011] of someone other than the demandant also lies for a tenant, because the demandant
[012] cannot sue without the other, who has as much right as he who claims, as [where]
[013] there are several parceners, or because he has no right without another, as a husband
[014] without his wife with respect to his wife's property, or because² a wife cannot sue
[015] without her husband with respect to her own property, since her husband, conjoined
[016] to her, is the head of his wife, or because it is not the demandant but another who has
[017] the action, who³ can bring the thing into court, as simple canons or monks or those
[018] who are removable, without their abbot or prior. Also a dean and chapter without
[019] their bishop. And so if the demandant has right, since he is a rightful and near coheir,
[020] but another has a greater right because he is nearer, as may be seen above in the
[021] tractate on the assise of mortdancestor.⁴

The exception that he has parceners without whom etc.

[023] We must first explain the exception which lies for the tenant because parceners who
[024] have as much right [as the demandant] are not named in the writ.⁵ Several parceners
[025] are, so to speak, a single body, in as much as they have a single right, and the body
[026] must be complete, not defective in some part. Parceners are, so to speak, takers of
[027] part, capable of inheriting part, [as above [in the portion] on the nature of heirs and
[028] differences between them,]⁶ because the thing is common among them by reason of
[029] the several persons, or by reason of vicinage or by reason of the thing itself, which is
[030] partible, and not by reason of the persons, who⁷ are not, so to speak, a single heir and
[031] a single body, but separate heirs, where the tenement

Notes

1. ‘de’

2. ‘quia’

3. ‘qui’

4. Supra iii, 278

5. Supra iii, 296; infra 336

6. Supra ii, 194

7. ‘quae’