Bracton: Thorne Edition: English. Volume 2, Page 88

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Volume 2, Page 88

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[001] those against whom an assise of novel disseisin by the ancestor lay.¹ But if the
[002] lord had put himself into seisin in the lifetime of the ancestor and the feoffor has
[003] put himself into possession after his death, the lord will have the assise of novel
[004] disseisin, saving to the feoffor his due service. But what if the heirs are within age?
[005] Who will have the wardship and marriage, for in that way² the lord may be deprived
[006] of his villein? The answer depends on the considerations discussed above. ³Suppose
[007] that there are several lords and the villein is theirs in common. If he agrees and
[008] stipulates, I ask for which of them, whether for one or both. If [he stipulates]
[009] only for one, he has the whole; if for both, they have it in common, just as the
[010] villein stipulates.⁴ [But account must always be taken of the shares in which they
[011] own him.]⁵ And what if he stipulates for himself? It then depends upon which of
[012] them first puts himself into seisin.⁶ Suppose that the villein has made a gift of
[013] what was given him? We must then distinguish, as above, whether he holds it as a
[014] free tenement or as a villeinage: if the latter, the lord may reclaim it;⁷ if the former,
[015] then neither he nor his lord may do so, because what was done holds good. Let the
[016] lord blame himself for delaying so long.⁸ [The service [reserved by the villein]
[017] remains a question.] Thus it is clear that he who is within another's potestas may
[018] make a gift. But how, since he who is possessed by others cannot himself possess
[019] anything,⁹ from which it appears he may give nothing, for one cannot give what
[020] he does not have,¹⁰ [that is], unless he is in possession of the thing to be given.
[021] I answer, he who has seisin of whatever kind may give, and [thus] a villein may give;
[022] sometimes the gift may be revoked, sometimes not, according to the reasoning
[023] above.

If a gift is made to one beyond the potestas of his lord.

[025] We have explained above what the law is when a gift has been made to one within
[026] the potestas [of his lord]. Now we must consider a gift made to those beyond that
[027] potestas, as fugitive villeins or villeins born out of the villeinage, and see for whom
[028] the thing and possession is acquired. It is clear that it is acquired for the villein. If his
[029] lord ejects him without judgment, some say restitution by the assise is not available
[030] to the villein, because if he has an action the exception of villeinage will bar
[031] him. But in truth, if that is excepted against him he may have a replication,¹¹
[032] [based upon] manumission, or on the fact that the exception of villeinage is not
[033] available to him who raises it. He may also replicate¹² on the ground of privilege,
[034] or that he is in a free status, and say that if that is disputed he would have proper
[035] replies and exceptions by which he could defend himself in his status.

Notes

1. Infra iii, 299

2. ‘sic’

3. New paragraph

4. Inst. 3.17.3; 3.28.3; D. 41.1.37.3; 41.2.1.7; infra 136

5. From lines 12-13; reading: ‘de parte dominii dominorum,’ as Inst. 3.17.3: ‘pro porcione dominii’; 3.28.3: ‘pro dominica parte’

6. Supra 87, infra iii, 91-2; om: ‘et utrum ... secundum hoc etc.

7. Infra 90

8. Ibid.

9. D. 41.2.23.1: ‘neque enim possunt videri aliquid possidere cum ipsi ab alio possideantur.’; supra 52, 66, infra 137, iii, 85

10. Supra 52, infra 103, 127

11. Infra iii, 87, 102

12. ‘replicare’