Bracton: Thorne Edition: English. Volume 2, Page 147

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Volume 2, Page 147

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[001] except the double rent for relief? Let the diligent and prudent curialis resolve this
[002] if he can.¹ When one gives for lighter services than he holds, ²as where he is bound to
[003] a certain service to his lord and gives in free, pure and perpetual alms or in free
[004] marriage, though the thing passes with its burden, he is bound, because of the
[005] modus of his gift, to defend his feoffee in his seisin,³ ⁴by the service named in the
[006] charter; if he is unwilling or unable to do so, let the chief lord betake himself to his
[007] fee, because the thing passes with its burden, and let the tenant do the service at
[008] once, until he can have recourse against his warrantor. ⁵What if the donor in making
[009] the gift contradicts himself, as where he says, ‘I give to such a one such a thing in free,
[010] pure and perpetual alms, doing thence such service:’ [the gift] could not then be in
[011] free and pure alms since it is burdened by service. Without prejudice to a better
[012] opinion, it is submitted that it ought to be construed against the donee, since in his
[013] charter he wittingly undertook to be bound to service. If the donor says, ‘I give to
[014] such a one such a thing to have and to hold in free marriage with such a one, doing
[015] thence [homage and] such service,’ these two cannot stand together, [namely], that
[016] the thing be given in free marriage and that homage and service be done from it before
[017] the third heir. Hence if homage is done, at once or at some time before the third heir
[018] [enters], service follows homage, and thus [the gift] will be construed [as one made]
[019] for service.⁶ ⁷If it is agreed between donor and donee that no gift or sale be made
[020] except to the donor or his heir and the contrary is done, the donor may put himself
[021] into seisin immediately after the livery, since the thing remains bound by the agreement,⁸
[022] but he may not do so after a time⁹ without committing a disseisin, for his
[023] negligence is ascribed to consent. If it was [specially] agreed at the beginning that he
[024] might put himself in seisin, then a fortiori he may do so, provided he does so at once.
[025] If it was agreed that he might put himself in seisin when and at whatever time he,
[026] wishes, he may do so at any time, for time does not run against him since the thing is
[027] bound in that way; he, the last feoffee, may blame himself for taking by way of gift
[028] a thing so burdened, whether he did so with notice or without. Each person who
[029] contracts knows or ought to know what and what sort of thing it is that he takes
[030] free or servile, burdened or not, bound or

Notes

1. Supra 84, infra 148

2-3. ‘ut si teneatur ... defendere,’ from lines 7-10; om: ‘Item dari ... illam tenuerit,’ lines 6-7, a connective

4. ‘per servitium in carta ...’; om: ‘tenetur suum ... defendere,’ lines 2-3

5. New paragraph

6. Supra 80-1, 97

7. New paragraph; belongs supra 146, at n. 8

8. Supra 145; P. and M., ii, 26 n.

9. Supra 142, infra 157