Bracton: Thorne Edition: English. Volume 2, Page 84

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Volume 2, Page 84

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[001] last feoffee enfeoffs the first feoffor, such feoffment may not stand, no more than
[002] if one had enfeoffed another of land for his homage and service and the same
[003] feoffee had enfeoffed his feoffor, for he then would be lord and tenant of the same
[004] tenement at the same time, which cannot be, any more than one may be lord and
[005] heir.¹ ²A confirmation made by one who may invalidate another's gift bars any
[006] reversion,³ as does homage and service accepted without any confirmation, as
[007] where⁴ one is enfeoffed by a person who may not make a feoffment, the land to be
[008] held of him who may invalidate the gift, and the latter accepts the homage and
[009] service;⁵ it is otherwise if the donor retains the homage and attorns the service
[010] to the true lord, [to be done] for him by the hand of his donee.⁶ ⁷<And because just
[011] as a tenement may fall [to a lord] in demesne, so may it in service,⁸ nor may he
[012] waive that any more than the tenement itself.>⁹ <But suppose that one has enfeoffed
[013] another for a service certain, namely, ten, and he in turn enfeoffs another for a
[014] smaller service, namely, five. Quaere whether the principal feoffor ought to have the
[015] service due, namely, ten, and also, as his escheat, the five, thus both, or only one,
[016] that is, ten or five.¹⁰ Suppose, on the contrary, that the principal has enfeoffed for a
[017] smaller service and the feoffee enfeoffs over for a greater. Strict law requires that he
[018] have both, for one is his escheat and the other is due by the terms of his feoffment,
[019] for which the tenement is bound. But the tenant would be burdened wrongfully
[020] were he held to both, for his feoffor is bound to acquit him and it is to his place that
[021] the superior chief lord succeeds. Equity finds a place here, that the lord suffer no
[022] damage and have at least his full service, reckoning the smaller service, that is, five,
[023] in the total of ten. In the converse case, where the lord has enfeoffed for the smaller
[024] service, that is, for five, and his tenant for the greater, the lord will have the greater
[025] as his escheat, the smaller, namely, five, being reckoned in the greater service of
[026] the tenant, that is, ten.>

Whether a gift may be made to bondsmen.

[028] Now we must see whether a gift may be made to bondsmen as it may to free men.
[029] In that connexion we must first ascertain whether they are within the potestas of
[030] their lords or beyond it and in a free status, either manumitted or fugitives. Then
[031] whether the gift is made by the lord in whose potestas they are or by another. If
[032] by the lord, then whether with manumission¹¹

Notes

1. Cf. B.N.B., no. 354

2. New paragraph

3. Supra 49, 51, infra 174

4. ‘ut si’

5. Supra 66; infra 195

6. Infra iii, 37

7. Supra i, 375; belongs on 83, at n. 8

8. Reading: ‘accidere [domino] teneri in ... servitio’

9. Supra 82, 83

10. Infra 146-7, 148

11. Om: carta et’