Bracton: Thorne Edition: English. Volume 4, Page 27

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Volume 4, Page 27

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[001] If he has no proof at all [of the term], it is evident that the tenant need not reply because
[002] of the lack of proof, for proof may be lacking though right never fails, ¹<as is
[003] proved in the eyre of the bishop of Durham and Martin of Pateshull in the third year
[004] of king Henry in the county of York, [the case] of Ragnild Murdak,>² [That the writ
[005] falls is evident, unless one says³ that by grace of the justices he can and ought to be
[006] aided by a jury of the country,⁴ but with an examination of the reason,⁵ because the
[007] instruments of proof are lost, or because he does not have them⁶ at hand, or cannot
[008] produce them without difficulty.⁷ Another day for making his proof⁸ will then be
[009] given him, as [in the roll] of Easter term in the fourteenth year of king Henry in the
[010] county of Dorset, [the case] of Matilda the wife of Stephen de Bosco.]⁹ If he puts forward
[011] an instrument in proof of the term and the demise, and it is contradicted, let the
[012] validity of the instrument be proved by witnesses and the country, and that being
[013] proved, it will still be necessary to prove the entry and the term passed, if the contrary
[014] is excepted, otherwise the action will be ineffective. If the validity of the instrument
[015] is admitted at the outset and the tenant excepts on the ground of feoffment, as where
[016] he admits that he first took for a term and [says] that within the term the tenement
[017] was given him in fee, and the demandant denies the feoffment and charter, let an inquest
[018] as to the feoffment proceed by the witnesses and the country. In that case, if
[019] the feoffment is good and sufficient, the tenant will retain and the matter will thus be
[020] determined. If the feoffment is void, the demandant will recover, despite any recourse
[021] the tenant may have to the term, for inasmuch as he held himself to the fee, he
[022] tacitly renounced the term. If the demandant has no proof as to the demise and the
[023] term, only his simple statement and unsupported voice, and the tenant ex abundantia
[024] and though he is not bound to do so, puts forward a charter of feoffment which cannot
[025] be denied, the tenant will remain in his seisin, as in the last eyre of Martin of Pateshull
[026] in the county of Suffolk, [the case] of William of Wantham and Matilda his wife.¹⁰ Nor
[027] would the demandant¹¹ be heard if he wished to put himself on the country as to his
[028] [the tenant's] entry, since there is no presumption in his favour, nor, as is evident,
[029] may he dispute the charter, which is put forward by way of exception, when his action
[030] is bad on the principal matter. Suppose that the demandant says that the tenant has
[031] no entry except through A., and the tenant answers and says that it is through the
[032] demandant himself or some ancestor of his who gave, acknowledged or remitted

Notes

1. Supra i, 410

2. Selden Soc. vol. 56, no. 270; not in B.N.B.

3. ‘dicat’

4. Infra 220

5. Infra 41

6. ‘illas’

7. Infra 217, 220

8. ‘ad probationem suam faciendam,’ from line 9

9. Not in B.N.B.; no roll extant

10. Not in B.N.B.

11. Om: ‘tenens sive’