Bracton: Thorne Edition: English. Volume 4, Page 357

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 357

Next

Go to Volume: Page:

[001] turns to the damage of no one,¹ and, [since] where there is the same reason there²
[002] is the same law, he ought to be excused who is detained outside prison by force majeure
[003] or by fraud so that he can neither come nor send, provided this may be proved
[004] by certain proofs.³

Also if he is so infirm that he is unable to distinguish and has lost his memory etc.

[006] He may also be excused, as is evident, by analogy, as though in prison, if at the time
[007] of the suit he is so detained by illness that he can neither come nor send, because he is
[008] unable to take notice of things. A wife placed under her husband's potestas is also
[009] excused for not making a claim, though she can send, as [in the roll] of Trinity
[010] term in the fourth year of king Henry in the county of Gloucester, [the case] of Robert
[011] Cusin.⁴ Thus it is evident that any lack of power excuses, as infirmity, force majeure
[012] and the like, for this is a good occasion for proceeding from like to like.⁵ One is also
[013] excused for not making a claim if during the whole period of the suit he was overseas,
[014] for whatever reason, so that it is likely that he could be unaware of the plea.⁶ Nor
[015] need he, in any of the aforesaid cases, make the claim after judgment or after the
[016] chirograph delivered.⁷

If a fine has been made which cannot be observed or hold good as where the fine is void.

[018] One is also excused for not putting in a claim where the fine is void ipso jure, as where
[019] it was made of a tenement held by another, ⁸<As where he who ought to have put in
[020] his claim, or his ancestor, was in seisin of the thing when the fine was made, not he
[021] who alleges the fine or his ancestor. And so if the fine contains a falsehood, as where
[022] he who says that he was in seisin had no seisin when the chirograph was made.>⁹ or¹⁰
[023] made by deceit and fraud, or in some other way to the prejudice of another, so that
[024] it ought not to be good. On this matter may be found [in the roll] of Michaelmas term
[025] in the third and the beginning of the fourth years of king [Henry] in the county of
[026] Sussex, an assise of mortdancestor [beginning] ‘if Matilda the aunt of Roger of
[027] Badeleghe.’¹¹ One is also excused for not putting in his claim where the chirograph is
[028] void, as where after a disseisin the disseisor enfeoffs another, because the fine may
[029] be revoked and annulled.

If at the time of the plea neither he nor his ancestor had right.

[031] One is also excused if at the time of the suit neither he nor his ancestors could claim
[032] any right in the tenement in question. He is also excused

Notes

1. ‘ad damnum’

2. ‘ibi’

3. ‘indicia’

4. B.N.B., no. 1427; C.R.R., ix, 120 (‘de recto’ written above this entry)

5. Supra ii, 21

6. B.N.B., nos. 403, 1779

7. Supra 356

8. Supra i, 422

9. Supra 287; ‘sicut de warrantia cartae’ transposed below; supra 244

10. ‘vel’

11. C.R.R., viii, 18; not in B.N.B.