Bracton: Thorne Edition: English. Volume 4, Page 46

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Volume 4, Page 46

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[001] The demandant's proof will not be certain until the tenant elects,¹ and therefore it is
[002] to the tenant's advantage to choose that proof² which the demandant cannot prove.
[003] For the demandant may have right in the thing claimed, yet the entry will not be such
[004] as he alleges, or conversely. It may also be that the demandant has right in the thing,
[005] and that the entry is as he alleged, in which case the tenant is not bound to two defences
[006] nor consequently the demandant to two proofs, and the election having been
[007] made, he may prove the one the tenant has chosen, [this will be at the tenant's risk,
[008] because when he chooses the right he is taken to admit tacitly that the entry is as
[009] alleged, and conversely.] When the tenant chooses to deny the right against the intentio
[010] and proof of the demandant, he will have another election, that is, whether he
[011] wishes to put himself on the grand assise or defend by the duel, as will be explained
[012] below [in the portion] on the proprietary action by writ of right, especially if they, the
[013] demandant and tenant, are persons between whom the grand assise or the duel lies. If
[014] they are related persons, and it is a right descending to both³ from a common origin,
[015] as between brothers, an older and a younger, [or] uncle and nephew, where only a
[016] computation to establish which of them is the nearer heir applies, though propinquity
[017] is established, the matter will never proceed to judgment as long as the casus regis continues.⁴
[018] When the writ of right, as said above, is changed by the demandant's count
[019] and the answer of the tenant, who has chosen entry, into a writ of entry, the delays and
[020] the essoin⁵ of bed-sickness which lay for the tenant before he chose entry thenceforth
[021] fail, and we must then proceed as by writ of entry. If he chooses to deny the right let
[022] it then be done in every respect as was said above, [according as it is] between strangers
[023] or⁶ related persons. And finally note that if in a plea by writ of right between
[024] [nephew and uncle] entry is added by the count, it is not to the tenant's advantage to
[025] hold himself to the entry, because if the entry is as alleged and can be proved, and the
[026] tenant, when he chooses entry, tacitly admits that the right is the demandant's as
[027] alleged, when the entry is proved the demandant will obtain, despite the casus regis.
[028] But if he holds himself to the right, whether the entry is as alleged or not, [and] though,
[029] a computation of the parentela having been made, it is established which of them is the
[030] nearer heir, the matter will never proceed to judgment,⁷ because of the casus regis, nor
[031] [will it] ever be otherwise in a proprietary action between related persons while that
[032] case continues in force, when⁸ the tenant holds himself to a defence of the right.

Notes

1. ‘Incerta erit . . . elegerit,’ from line 2

2. ‘illam probationem’

3. ‘utrique’

4. Supra ii, 190, iii, 269, 284-5

5. ‘essonium’

6. ‘vel’

7. ‘procedetur ad iudicium,’ as above

8. ‘cum’