Bracton: Thorne Edition: English. Volume 2, Page 70

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Volume 2, Page 70

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[001] first who deceived him, that he be held at least in damages, if he has the where-withal.
[002] If he has nothing, then by counsel of the court, not of right, recourse must
[003] be had against the feoffee.¹ ²A gift may be made for a past causa or for one to follow.³
[004] In accordance with the aforesaid, ‘that’ indicates a modus, ‘if’ a condition, ‘because’
[005] a causa. Hence this verse:
[006] ‘ut’ marks a modus, ‘si’ a condition, ‘quia’ a causa.⁴
[007] ⁵By the modus a gift may be made to several at the same time and in succession,⁶
[008] as where a man having several sons makes a gift to his eldest in this way, saying,
[009] ‘I give to A, my eldest son, so much land etc. to hold to himself and the heirs
[010] begotten of his body, and if he has no such heirs or if he has such and they fail,
[011] I then give it to B, my second son, and wish that it revert to him to hold to himself
[012] and the heirs begotten of his body, and if he has no such heirs or if he has such
[013] and they fail, I then wish and grant for myself and my heirs that the aforesaid
[014] land revert to C, my third son, to have and to hold to himself and to the heirs
[015] begotten of his body (and so for any others) and if the aforesaid A, B. and C. die
[016] without such heirs begotten of their bodies, I then wish that the aforesaid land
[017] revert to me and to my other heirs,’ which, indeed, would occur without express
[018] words by tacit condition, unless the donor had provided otherwise. ⁷Also more
[019] broadly, as where it is said, ‘I give you so much land etc. to have and to hold to you
[020] and your heirs or to whomsoever you may wish to assign it in your lifetime or devise
[021] it at your death.’ The gift is valid,⁸ because of the intention and consent of the donor,
[022] though it may seem to be made against the law of the land, and hence if the devisee
[023] has first seisin and the heir [of the devisor] claims by the assise [of mortdancestor]
[024] the devisee will have an adequate exception against it, [based upon] the modus of
[025] the gift. But if the devisee, being out of seisin, claims by virtue of a testamentary
[026] causa in the ecclesiastical court, a royal prohibition will bar him, lest the matter be
[027] heard by ecclesiastical judges who⁹ would have neither jurisdiction nor power to
[028] execute their judgment.¹⁰ But if he wishes to sue in the secular court, although that
[029] is unheard of, he may well do so by a writ especially drawn,¹¹ since one may renounce
[030] matters introduced for his [protection] and that of his people,¹² [if] it is not prejudicial
[031] to others.¹³ ¹⁴A gift may be made completely subject to a modus, ¹⁵as where the four
[032] innominate contracts enter into a gift, namely, I give that you do, I do that you
[033] give, I do that you do, I give that you give.¹⁶

Notes

1. Cf. infra 146

2. Om: ‘et sic . . . Do ut des,’ infra nn. 15-16

3. The portion infra 72-3 belongs here

4. D. 19.5.5. pr.; Azo, Summa Cod. 6.44, nos. 1-2: ‘Et quidem conditio adjicitur per si ... Modus apponitur per ut, causa apponitur per quia.’

5. New paragraph; belongs supra 69 at n. 2

6. Infra 94, 144, 200, iii, 272

7. New paragraph; belongs supra 67, at n. 7

8. Infra iv, 194, 283; Selden Soc. vol. 69, lxxvii-lxxviii; contra: infra 149; B.N.B., i. 36

9. ‘qui’

10. Infra iii, 123

11. Infra iv, 283

12. C. 2.3.29.1: ‘omnes licentiam habere his quae pro se introducta sunt renuntiare’

13. Supra 67, infra 149

14. New paragraph

15-16. Supra n. 2; reading: ‘[ut si] incidant’