Bracton: Thorne Edition: English. Volume 2, Page 291

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Volume 2, Page 291

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[001] even though both parties should wish to proceed criminally in a civil matter, as
[002] where one has instituted an action against another criminally (though it is civil)
[003] and said that ‘he had feloniously shaken the dust from his cloak (or something of
[004] the sort) and that this he would be ready to deraign;’ the judge by examining the
[005] deed and the reason for the action ought to pronounce the appeal void and the suit
[006] civil and not criminal.¹ And so even though the appellee should be prepared to
[007] defend himself by his body. And so even though the duel has inadvertently been
[008] waged between them; it ought to be de-waged by judgment.² The question remains
[009] whether he may or may not have recourse over to a civil action. When an action
[010] is purely criminal it may be brought criminally or civilly,³ [that is], at the outset,⁴
[011] but once a criminal action has been brought civilly quaere whether the complainant
[012] can change and proceed criminally, or conversely. Some say that he cannot
[013] descend from a criminal to a civil action by diminishing it but may [ascend] from a
[014] civil to a criminal action by augmenting it.⁵ But I do not agree with this, for no
[015] variance ought here to be countenanced. ⁶Actions in personam are those which lie
[016] against one ex contractu or quasi, ex maleficio or quasi. [If ex contractu], when one
[017] is bound to give or do something, they lie against him who contracted and his
[018] heir,⁷ unless they are penal.⁸ They are called ‘born’ actions because they are born
[019] of contracts.⁹ [020] raptorum.’; cf. Kantorowicz, 100-1">[All actions in rem are for the recovery of a thing]. And so are almost
[021] all personal actions [which] arise ex contractu, as those arising from a loan for
[022] consumption, a loan for use, from deposit, mandate, sale and purchase or letting and
[023] hiring. Some personal actions arising ex maleficio pursue the penalty only, as the
[024] actio furti, some the thing and the penalty, as the action vi bonorum raptorum, and
[025] thus are double, since they are recuperatory and penal, and thus [mixed] both
[026] in rem and in personam.¹² Since they are in part recuperatory, they lie against any
[027] who can restore, whether the possessor is he who depoiled or another; in so far as they
[028] are penal they lie only against those who committed the wrong. They sometimes lie
[029] against one person, the wrongdoer, since he can restore, when both aspects are
[030] conjoined in one individual,¹³ sometimes against two or several, when they are
[031] separated and divided, since the wrongdoer does not possess and cannot restore
[032] and the possessor did not commit the wrongful act but can restore. ¹⁴Of personal
[033] actions arising ex maleficio or quasi some are criminal, others civil. Of the criminal,
[034] some are major, others minor; of the civil the same is true, as was touched upon
[035] briefly above.¹⁵

Notes

1. Infra 337, 390, 407

2. Infra 337

3. Infra 396, 411, 425

4. ‘civiliter, ab initio sed’

5. Infra 396, 425-6

6. Br. and Azo, 168-70

6-7. Azo, Summa Inst. 4.6, no. 10: ‘In personam quae competunt ex contractu vel quasi, ex maleficio vel quasi, ad aliquid dandum vel faciendum: et semper adversus eundem vel heredes eius locum habent.’; cf. Kantorowicz, 100

8. Supra 288, infra 323

9. Azo, Summa Inst. 4.6, no. 48

12. Infra 293

13. Infra 296, iii, 157

14. New paragraph

15. Supra 290, n. 10