Bracton and his Relation to the Roman Civil Law. resembled the old English Breve or Writ, which stated the form of action and matter to be tried, and was probably derived from the practice of the praetor. Let us now see what Bracton says about exceptions in Book V. fol. 399 b and 400. He asks what is an exception, and how di vided. He answers that an exception is the elisio, or crushing out, of an action, by which the action is destroyed or put off, — delayed. Exceptions are thus divided : some are dila tory and some peremptory. Some dilatory exceptions are peremptory of the jurisdiction and dilatory of the action. In like manner, some are peremptory of the writ, and dila tory of the action. Some exceptions are general to all actions, and some are special, and available only against particular actions; for every action has its own appropriate exception, according to the form of the ac tion, — as may be seen in the assize de ingressu. General exceptions apply gen erally to all actions; as, the exception to the jurisdiction, or to the person of the plaintiff, or to the writ, and the exception which arises from time or by reason of the place, and which are dilatory of the action, and quasi extra actionem, and while they do not destroy the action, they delay it for the time. Some exceptions are to the jurisdiction of the court, and some to the authority of the judge to try the action or suit. Some are against the person of the plaintiff. Such exceptions as are to the writ must be urged in the beginning of the suit, or they will be deemed to be waived; others may be pleaded after view made. And as it is necessary, in order to propound and prove an action, that it should prima facie appear to be just, so it behooves that an exception should appear to belong to the exceptor, the same as an action belongs to the plaintiff. And as exceptions do not always avail against all actions, it is necessary that the plaintiff should have the power of replying to the exception; as if one should sue, the defendant may set up by exception a subsequent pact, that the plaintiff should not sue, against which 45
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plaintiff may reply a still later pact that he might sue. And so of other matters destroying an exception; this is a Replica tion. To the Replication succeeds the Triplication, and to the Triplication the Quadruplication; and so on, in infinitum. Thus it may be seen that an action which at first appeared to be good may be over turned by an exception, and that an exception apparently good may be overturned by a replication, and so on. One may use several different dilatory exceptions at the same time; but if he has several peremptory exceptions, he only ought to propound and prove one. As was said above, of several concurrent actions the plaintiff only ought to propound one, so the defendant, if he has several peremptory exceptions, and propounds two or more, if he fails in proof of one, he may have recourse to the other, and so defend himself with many sticks; which ought not to be, when the proof of one ought to suffice him. The only difference in the English mode of pleading defences to be observed is that the objection to the repli cation in the Roman law is called duplica tion, while Bracton calls it triplication, etc.; and that Bracton states that only one per emptory exception can be pleaded in bar of an action, while the Roman law admitted several. I have, at the risk of wearying the reader, gone over the dry details of the Roman law, and the law of Bracton, to show their mani fold similarities and identities. To enlarge on this by citing many other points and details would be unprofitable. Enough has been shown, I think, to satisfy the careful reader that the system of pleading in England in Bracton's time and long previous was the Continental system, derived from the Roman law; and that afterwards, when the proceed ings of the courts were conducted in French, the names of the different pleadings were called by French names, and the old Latin names dropped. Mr. Serjeant Stephen seems to be of this opinion. (See Stephen on Plead
