Bracton: Thorne Edition: English. Volume 2, Page 87

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Volume 2, Page 87

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[001] for against him neither assise obtains, because, though at first sight a villein
[002] within the potestas of his lord has a querela or action, his lord has a competent
[003] exception of villeinage against him and the villein no replication.¹ But when a
[004] villein within his potestas has acquired a tenement by some causa [and been disseised],
[005] why has not the lord an assise of novel disseisin at once, since it is said
[006] that whatever is acquired by a bondsman is acquired by his lord,² whence it
[007] appears that as soon as the bondsman is in possession the lord possesses through
[008] him,³ and therefore that if he is ejected, through him the lord is ejected. And what
[009] is acquired by a bondsman is acquired for his lord though he is without knowledge
[010] of the matter and even asleep.⁴ With regard to such statements, we must first see
[011] whether the bondsman has made the acquisition in his own name or in his lord's.
[012] If he stipulates and agrees in the name of his lord and to his use it is immediately
[013] acquired for the lord,⁵ by the bondsman as by his procurator, and no matter
[014] when the bondsman is ejected the assise is at once available to the lord, not the
[015] bondsman. But conversely, if the bondsman stipulates for himself, not for his
[016] lord, it is not acquired for the lord⁶ at once; though subject to his will and power it is
[017] not his until he has obtained possession,⁷ which, if he so wishes, he may do with
[018] impunity because of the exception [of villeinage] available to him, against which,
[019] in this case, no replication lies, [and] provided he does to his villein's feoffor (in
[020] homages, services and the rest) what the villein was bound to do. When the lord
[021] has seisin, he may, out of his hand, restore [the land] to the villein, [or another,]
[022] to be held freely or in villeinage, and then, depending upon the disposition made,
[023] the assise of novel disseisin lies for the lord or does not. When a villein within the
[024] potestas of his lord and so seised dies, before his lord has put his hand [upon his
[025] acquisition], there may be a dispute between the villein's lord and his feoffor as
[026] to whose escheat the tenement so acquired by the villein ought to be. It cannot be
[027] the escheat of the lord, since the villein did not hold it of him but of his feoffor;
[028] nor the escheat of the feoffor, since, in view of his act and feoffment, as against
[029] him the enfeoffed villein is free and has heirs. Thus if the feoffor puts himself into
[030] seisin first the lord will have no action against him, but the heirs of the enfeoffed
[031] villein will have the assise of mortdancestor, and when they have recovered by
[032] the assise the tenement will then be subject to the will of the lord, as it was in the
[033] time of their ancestor. It is clear that here the assise of mortdancestor by the heirs
[034] lies against all

Notes

1. Infra iii, 85

2. Inst. 1.8.1: ‘quodcumque per servum adquiritur, id domino adquiritur,’; infra iii, 85, 104

3. Inst. 2.9.3; infra 137

4. Inst. 2.9.5; D. 41.2.1.5, 41.2.34.2: ‘Servus quoque meus ignoranti mihi adquiret possessionem,’; D. 41.3.31.3; infra 96

5. Inst. 2.9.3. infra 88, 96, 136, 288, iii, 92

6. D. 41.2.1.20; infra 136

7. Infra 88, iii, 91-2