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If law is waged on both sides.1

[002] If the plaintiff says that the captor seized his beasts wrongfully because they had
[003] done no damage, nor did the seizor show him any damage when he offered to
[004] satisfy him for it, [and produces suit], the distrainor must produce sufficient suit
[005] to prove that he seized them damage fesant and therefore rightfully, or for an
[006] acknowledged service wrongfully withheld, [If the plaintiff answers to the service
[007] that though he acknowledges it the beasts were taken wrongfully because he had
[008] performed the entire service, so that nothing remained in arrear, and has suit
[009] sufficient for proof, the seizure will be wrongful, nor may the distrainor make his
[010] defence by his law.]2 [or] because such a one complained against the plaintiff of
[011] such a wrong, as of blows and the shedding of blood, or of a debt without writ,3
[012] whereupon the plaintiff was summoned to appear on an appointed day to answer
[013] thereon, on which day he neither came nor essoined himself and hence, ‘by the
[014] judgment of my court’ he was distrained to appear on another day. On that day
[015] he did not come, and since4 at another time etc., by judgment of the court it was
[016] ordered that the beasts previously seized be retained and that others be taken.5
[017] Thus they were rightfully seized by judgment; nor were they wrongfully detained
[018] against gage and pledges since they were never claimed. Or he may say that though
[019] the beasts were first seized, after the [first] summons, for the plaintiff's default,
[020] and were claimed by pledges, they were released to the plaintiff on condition that
[021] he appear on another reasonable day to answer thereon and, unless he did so, the
[022] beasts would be returned to the lord, [and since] he did not come on that day the
[023] beasts were returned, because6 of his default, and thus were lawfully taken. To
[024] this the plaintiff may answer that they were wrongfully taken, for such a reason,
[025] 7the reason being given because enquiry must always be made into the circumstances
[026] of the seizure.8 Thus beasts may be seized rightfully or wrongfully, [but] whether
[027] rightfully or wrongfully they ought not to be refused against gage and pledges,
[028] provided that he who owns them is ready to do what of right he ought to do.9
[029] And note that a wrongful taking may be amended by neighbours10 but a wrongful
[030] detainer may not, because it is clearly against the king's peace and his crown.11

If a servant takes another's beasts in his lord's absence.

[032] But what if the servant of some [lord] takes a tenant's beasts, the tenant complains
[033] against the servant, that he has taken his beasts wrongfully and detained them
[034] against gage and pledges, the servant vouches his lord's court to warranty and the
[035] court warrants him, on the basis of a service the tenant does not acknowledge?
[036] The servant will be discharged and the court shall answer for what he has done.
[037] But surely the court cannot answer without the lord since the service is the lord's
[038] concern?


1. Rubric erroneous

2. Supra 441

3. Supra 436, 441

4. ‘eo quod’

5. Infra iv, 365

6. ‘propter’

7-8. ‘assignata ratione ... capta fuerint,’ from lines 24-5

9. ‘deberet’, MA, ‘debet’, OB; infra 447

10. Supra 436

11. Supra 439

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