Bracton: Thorne Edition: English. Volume 3, Page 344

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Bracton Online -- English

Volume 3, Page 344

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[001] an assise utrum, in the same way. And in as much as the form of the original writ
[002] ought to be inserted in the writ of conviction, it is plainly evident that a conviction
[003] only lies with respect to the clauses in writs of assises, where no exception is raised
[004] but the assise is taken in the manner of an assise. Where an agreement is excepted, or
[005] a question of status raised or the like, no conviction lies, because the assise is turned
[006] into a jury to inquire into the exception,¹ if it is denied, or if it is not, [whether what
[007] was done was] in accord with the agreement, and because legal necessity compels
[008] the parties to it. On the day of summons he who was summoned to hear the recognition
[009] may well essoin himself, because all those whom the recognition touches ought to
[010] be present. For he may say many things as to why the conviction ought not to proceed,
[011] or if it ought to proceed, against the jurors,² or that it ought to remain, forever
[012] or for a time.³<An exception may be raised by him who recovered by the assise against
[013] him who lost if damages have not been restored, in part or as a whole, because before
[014] his estate is completely restored a conviction will not proceed, just as a plea on the
[015] property brought by him who lost by the assise will not proceed under those
[016] circumstances. The conviction falls if he who complains of the false oath has put
[017] himself in seisin of the whole or a part on his own authority and without judgment.>⁴
[018] The parties being present, if the twenty-four do not appear another day will be given
[019] them and the twenty-four attached to appear on that day. If the jurors and the plaintiff
[020] are present, but not the person summoned, let him be attached. If the plaintiff
[021] does not come but the jurors and the defendant are present, let the jury withdraw
[022] sine die, after they have awaited the fourth day, and the person summoned similarly,
[023] and let the plaintiff and his pledges for prosecuting be in mercy. When the parties
[024] have appeared in court in the presence of the twelve and the twenty-four, let the
[025] record of the assise first be heard, as it was taken, and let the plaintiff be asked in
[026] what respect the twelve jurors swore a false oath, as to one clause of the writ or
[027] several, or even as to incidental questions and exceptions, if the assise was taken in
[028] the manner of an assise, [Where no exception was put forward by the tenant but
[029] alleged by the jurors⁵ after the oath, a conviction will lie if the jurors have sworn
[030] falsely, as to exceptions just as to the principal articles in the writ.] and according
[031] as what the plaintiff says is true or not,⁶ let the jury proceed by the oath of the twenty-four.
[032] They ought to swear in the manner of a jury not of an assise, in this way:

Notes

1. Supra 339

2. Infra 348

3. Supra i, 408

4. Infra 348

5. ‘iuratoribus,’ V only

6. Infra 350