Bracton: Thorne Edition: English. Volume 2, Page 105

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Volume 2, Page 105

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[001] the damage of the minor, or from a church to a private person to the damage of the
[002] church, which has the status of a minor,¹ as in the county of Lincoln, [the case] of a
[003] certain church in Holland,² where land first was given to a parson and church and
[004] his successors and afterwards the donor changed the gift from the church to private
[005] persons, that is, to the parson and his heirs, which could not be, since it was to the
[006] prejudice and damage of the church.> ³And how ought the donee to use his seisin,
[007] for he cannot have vacant possession or use it by himself. And if the wife should
[008] wish to resign her dower into the hand of the owner in order that he enfeoff her
[009] husband that would be a prohibited gift, between husband and wife, and a fraud
[010] perpetrated against the constitution [of dower],⁴ and if he should wish to attorn the
[011] wife's service to her husband that would not be valid, since everything that is the
[012] wife's is the husband's, nor is it the wife who is sui juris but rather the husband.
[013] Thus it seems that the gift ought not to be good. But if the husband is in possession
[014] after the wife's death and the donor or his heir claims, the exception of gift will bar
[015] the demandant.⁵ If the husband is out of possession he will hardly obtain it by
[016] an action.⁶ Nor if he dies first will his heir be given an action, since the wife never
[017] changed her status.⁷ But suppose that a gift of the land she holds in dower is made
[018] to the wife alone without her husband; it is valid and binding, a free tenement
[019] being changed to a fee.⁸ If the gift is made to both and their heirs, either their
[020] separate or their common heirs, the gift is valid, an alteration having been made
[021] of the causa possessionis.

If a gift is made of a thing excepting some portion of it.

[023] A gift is [sometimes] made of a thing excepting some certain portion. ⁹[It then is
[024] important whether that portion is excepted when the gift is first made [or later],
[025] as where the donor says, ‘I give you such a manor with the appurtenances,’ by
[026] these words the whole manor is transferred. If he then augments his statement and
[027] at once says ‘except such part,’ that part is taken out, after the gift though before
[028] livery. But if he says, ‘I give you such a manor with the appurtenances, retaining
[029] (or ‘saving’) to myself such part,’ it will then be otherwise, for then he transfers
[030] nothing to the donee except what he intended to be transferred and the part
[031] retained is and always was his own.]¹⁰ [Hence if the donor's heir afterwards confirms
[032] the gift, he confirms nothing to the donee except the thing as

Notes

1. Reading: ‘vel de ecclesia ... ecclesiae (from lines 8-9) quae fungitur’; supra 52, infra iii, 177, iv, 356

2. J.I. 1/482, ms. 14d, 34: infra v. The church involved is Br's own church of Gosberton; he is plaintiff in the second case. Information from Mr. C. A. F. Meekings

3. Continued from 104, n. 2; om: ‘Item esto ... viri sui,’ a connective

4. Supra 54, 98; G’terbock, 111

5. Supra 56, 103

6. He will have an action on the agreement against the donor: supra 56, 103; apparently the assize against a stranger if the donor ratifies: infra 129-30

7. Infra 107, 132, iii, 282, 290; cf. Longrais, Saisine, 127, n. 4

8. The portion infra 106, n. 2, belongs here; om: ‘Et sic poterit ... possessionis,’ lines 6-8, repetition

9-10. This portion should follow n. 7 on 106; om: ‘Item fit ... certa,’ redactor's introductory phrase

10. Infra 165, 278