Bracton: Thorne Edition: English. Volume 4, Page 353

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Volume 4, Page 353

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[001] right he claims, he will not be heard, because if he merely says ‘I claim such¹ a thing
[002] as my right,’ it does not suffice unless he at once shows his right, as where he says ‘of
[003] which such an ancestor etc.’² And if he does show his right, and³ supports his intentio,
[004] that does not suffice unless he at once produces proof,⁴ as will be explained below,
[005] because he who proves nothing falls from his intentio,⁵ nor does it matter whether he
[006] proves nothing at all or proves it inadequately, as will be explained below [in the
[007] portion] on the litis contestatio.⁶

An exception is also given by reason of the narratio, by saying now one thing, now another.

[009] An exception also arises for the tenant by reason⁷ of the narratio, as where [the demandant]
[010] changes his intentio,⁸ now saying one thing now another, contrary to or
[011] different from the first, except where that is permitted, or in his narratio departs
[012] from his writ, so that the narratio does not agree with the writ or does not say what
[013] amounts to it. And so if, when he has once put forward his intentio and the writ afterwards
[014] falls because of error, when he later begins to sue by another writ he changes
[015] his intentio, that first put forward, completely or in part, [A fortiori if he fraudulently
[016] withdraws from one writ so that he may change his intentio in another, though it may
[017] be urged that new subject matter requires a new causa,] [because] though the writ is
[018] changed, the action ought not to be changed,⁹ nor the intentio first put forward varied
[019] because of the several writs,¹⁰ since they are put forward under the same action.

An exception also lies for the tenant because of res judicata.

[021] The exception of res judicata lies for the tenant, as where the ancestor of the demandant
[022] or one of his heirs has lost the thing claimed by judgment in a proprietary action,
[023] as by the grand assise or the duel, or by the jury on which he placed himself; this
[024] exception is peremptory because it completely destroys the action.¹¹ And so if it was
[025] by a concord and fine made, which is equally peremptory. It is called a final concord
[026] because it puts an end to suits, as where the tenant says that there was once a plea in

Notes

1. Om: ‘meam’

2. Supra 169

3. ‘et’

4. Supra 171

5. ‘ab intentione’; om: ‘propter defectum probationis’

6. Not in treatise

7. ‘ratione’

8. ‘ut (for ‘et’) si . . . mutaverit,’ from lines following

9. Supra 291

10. Om: ‘in uno . . . diversis’

11. ‘actionem’