Bracton: Thorne Edition: English. Volume 2, Page 146

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Volume 2, Page 146

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[001] And though he is ejected and out of seisin he will have escambium against his own
[002] feoffor, because the latter is bound to do for him what he promised, because in his
[003] gift he promised that the thing was free which subsequently proved to be burdened.¹
[004] If the donor cannot enter pursuant to the terms of the gift, he will have an
[005] action on the agreement against both,² against his donee³ and the person enfeoffed
[006] by him: the donee, because he is bound by the agreement; his feoffee, because he
[007] holds a burdened thing.⁴ Not against either of them by himself: not the donee,
[008] because though he is bound by the agreement he cannot restore; not against the
[009] feoffee, because though he can restore he is not bound by the agreement. Once
[010] joinder⁵ of both has been made let the action proceed against both at the same
[011] time; when the first feoffor has recovered let the second give escambium to his
[012] feoffee. A gift may be made with this modus, that the thing not be given to anyone
[013] except the donor himself.⁶ A gift may be made so that neither the donee nor his heirs
[014] may give it to anyone,⁷ and thus it will not be free since it is subject to a servitude.
[015] Hence, though the gift is generally phrased, ‘to hold freely,’ freedom is destroyed by
[016] the addition which follows, ‘that he not give;’ nevertheless the thing is bound as
[017] well as the person. A gift may be made that one not be made, that is, that the donee
[018] not make a gift over of the thing given him, or drive it off if it is a movable, or use
[019] and enjoy it if it is an immovable. If this ought to be called a gift it will be a completely
[020] useless and unprofitable one, because, though livery is made, the thing is not made
[021] the property of the taker; for that reason it ought rather to be called void.⁸ ⁹He
[022] may give it over more freely than he himself held it, since,¹⁰ because the thing passes
[023] with its burden, it always remains bound to the first feoffor;¹¹ also for greater service,
[024] by which the first feoffor gains no advantage, except when the homage of his
[025] tenant falls to him as an escheat, upon failure of heirs or for felony, or by reason of
[026] wardship or the like.¹² He may also give what he holds by military service to be held
[027] in socage,¹³ and conversely, for a tenant may well alter the feoffment and service
[028] as between himself and his own tenant so that he not be entitled to the wardship
[029] and marriage of his tenant's heir,¹⁴ though both are due to his own feoffor. And what
[030] if because of the failure of heirs or through felony or in some other way the last feoffee
[031] comes to hold of the first feoffor, when by reason of his feoffment by military service
[032] the wardship and marriage of the heir are due him, and from his tenant's feoffment
[033] in socage nothing is due him

Notes

1. D. 41.1.20.1; supra 127

2. Supra 69-70

3. ‘suum donatarium’

4. Supra 145

5. ‘coniunctione’; ‘conventione’ CE, MA, MB, MC, OB, OC

6. The portion infra 147, n. 7, belongs here; om: ‘Et qualiter ... de praemissis.’

7. ‘aliqui’

8. Supra 62

9. New paragraph

10. ‘cum’ for ‘tamen’; supra 67, 78, 115

11. Supra 67, 78, 143

12. Supra 84, infra 147, 148

13. Supra 115, B.N.B., no. 703 (margin)

14. Supra 67, 117, infra 148