Bracton: Thorne Edition: English. Volume 2, Page 78

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Volume 2, Page 78

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[001] and the beginning of the sixteenth years of king Henry in the county of Shropshire,
[002] [the case] of Roger de la Zusche and Petronilla de Wynslegh,¹ for service always
[003] follows homage, though to the damage of those who do it. What if, when a gift in
[004] free marriage is first made, no charter containing an express warranty is drawn,
[005] neither homage nor service is done, and the donee or his heirs are impleaded? If
[006] they vouch the donor of the maritagium, their feoffor, to warranty, is he bound to
[007] warrant in the absence of a charter and homage? In truth he is so bound, for a
[008] woman so married by the donor, or, if she dies, her children and heirs, will take
[009] the place of a charter and suffice for one. ²<[A maritagium] may be completely
[010] free, where³ it renders no service of any kind. It may be burdened by every service,
[011] that is, where none is remitted. It may be partly free and partly burdened, where in
[012] the gift⁴ some service is reserved and some remitted, as where one gives a free
[013] tenement in marriage saving the forinsec.> ⁵<One may give land more freely than
[014] he himself holds,⁶ [that is], by less service, as⁷ where he [B] is bound to forinsec to
[015] his chief lord and feoffor [A], he may enfeoff over another [C] free of forinsec
[016] service, [enfeoffing him] of the whole or some part; if of some part, by that the
[017] distraint of the lords is not altered, so as to bar them from distraining per totum
[018] feodum,⁸ [according to strict law but not equity,]⁹ and if¹⁰ [A] distrains the
[019] feoffee [C] let him sue out a writ of mesne against his feoffor [B], [the distraint will
[020] not cease pending that plea, for if it did an injuria would be done the chief lord.]
[021] If he distrains the feoffor [B] he acts properly, for [B] is bound to warrant his
[022] feoffee [C]. Suppose the chief lord [A] confirms to the feoffee [C] the gift made by
[023] his tenant [B]; if he then distrains [C] the feoffee has his defence in his hand, that
[024] is, the confirmation. If he distrains the feoffor, his tenant, though [B] has nothing
[025] in hand to serve as a defence, nevertheless¹¹ he [A] wrongfully seeks from him what
[026] he remitted to his [B's] feoffee. Hence [since] if he could claim from one what he
[027] remitted to the other the confirmation would be ineffectual, the tenant may say
[028] to his feoffor that he is not bound to answer, because [when] a chief lord confirms
[029] the deed and gift [of his tenant] he may not destroy it by acting to the contrary,
[030] because a confirmation supplies all defects, and thus that neither of them will be
[031] bound, that the confirmation prevail rather than perish¹² and serve some purpose
[032] rather than none.>

[Some maritagia are not free].

[034] There is a maritagium bound and burdened by service which is not free,

Notes

1. B.N.B., no. 664: no roll extant

2. Supra i, 375

3. ‘ubi’

4. ‘donatione’

5. Supra i, 375

6. Infra 115, 146, 147

7. ‘ut’

8. Supra 67; infra 143, 146

9. Infra iii, 154; B.N.B., no. 158

10. ‘et si’

11. ‘tamen’

12. D. 34.5.12: ‘magis valeat quam pereat;’ Drogheda, 124: ‘cum potius debeat valere quam perire;’ 348, 358: ‘valeat quam pereat.’