Bracton: Thorne Edition: English. Volume 2, Page 445

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Bracton Online -- English

Volume 2, Page 445

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[001] until he has satisfied the lord as to the service acknowledged, because of the seisin,
[002] though he has no right, and let the plaintiff sue by the writ ‘that the lord not exact
[003] services and customs from him which he ought not to render,’ since he does not
[004] rightfully owe them. Thus if seisin oppresses him an action on the right will release
[005] him. ¹The distrainor may also say that he took the beasts lawfully because, though
[006] he holds his land so freely that neither the plaintiff nor any other may have common
[007] or any other servitude there, the said plaintiff turned his cattle into it though he
[008] had no right to do so, and though frequently warned not to do so proceeded so
[009] to do despite the prohibition; he thus took the plaintiff's beasts rightfully, being
[010] prepared to restore them to him if he would refrain from such wrong, which he
[011] altogether refused to do, nor was he willing to take back his beasts on such terms.
[012] To this the plaintiff [may reply] that [the seizor seized them] wrongfully, because
[013] he ought to have and always has had common there, and this he is ready to prove
[014] where and when etc. And since the distrainor refused to release the beasts peaceably
[015] and without pledges he refused to find pledges on those terms. Since the county
[016] court has no authority to proceed further let the beasts remain released.² If the
[017] plaintiff attempts to use when he has no right and the lord can protect himself in
[018] no other way, let him have a writ of novel disseisin of his free tenement against
[019] him. If the plaintiff has the right to use and the lord does not permit him to do so,
[020] let him have the writ of common of pasture against the lord.

Of the seizor's answer, that the taking was lawful because the beasts caused him damage.

[022] The distrainor may also say that he took the plaintiff's beasts lawfully because he
[023] found them damage fesant and impounded them, in accordance with the custom of
[024] the realm, until his damage should be made good³ to him, not in any other way.
[025] And [detained them lawfully because] the plaintiff refused to make good his damage
[026] or to give security for doing so, or never claimed the said beasts by gage or pledges,⁴
[027] or if he claimed them, they were offered him on the terms aforesaid. If⁵ in proof
[028] thereof he produces suit and if the plaintiff makes a categorical denial let him make
[029] his defense against the suit by his law.⁶ ⁷If he says that they were seized lawfully
[030] but detained unlawfully against gage and pledges, because he, the plaintiff, came
[031] to the said distrainor with men of repute and in their presence was prepared to make
[032] good his damage according to their view, which he refused to accept and despite this
[033] offer kept his beasts unlawfully and against gage and pledges, and has good and
[034] sufficient suit,⁸ the seizor, if he makes a categorical denial, shall wage his law.⁹
[035] Thus laws may be waged on both sides.

Notes

1. New paragraph

2. Supra 318

3. ‘emendatum,’ all MSS.

4. Supra 440, infra 447

5. ‘Si’

6. Infra 448

7. Om: ‘vel’

8. Om: ‘non,’ as Fleta, ii, ca. 47

9. Supra 440