Bracton: Thorne Edition: English. Volume 3, Page 100

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Volume 3, Page 100

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[001] the exception will not avail him, because he is not excused if he says that he did him
[002] no injuria because he is a villein, [because he is the villein] of another, since it is no
[003] concern of his whether he is free or bond, because the villein is no more bound to him
[004] than he to the villein, who therefore is free as against the stranger, for the reason
[005] above. ¹<For there is one's own villein and another's,² as mine, thine, his, and one may
[006] be the free man of one and the villein of another.>³ When a villein under potestas is
[007] enfeoffed by a non-lord, it will be perfectly lawful for the lord to take the land so given
[008] his villein into his hand and disseise him. If the villein brings the assise and the lord
[009] excepts villeinage against him, that exception will be good, when put forward by the
[010] lord, though it would not be if put forward by a non-lord. For the lord may say that
[011] the tenement acquired by his villein ought to be his, bought, so to speak, with his
[012] money, which a stranger could not say.⁴ If the villein holds the acquired tenement
[013] with the permission of his lord, and is disseised by someone other than his lord, he
[014] will recover by the assise.⁵ If it is his feoffor who ejects him, he brings the assise, and
[015] the feoffor excepts villeinage, the villein will replicate on the deed and feoffment of
[016] the feoffor.⁶ And so if his own lord is his feoffor. And since the exception of villeinage
[017] put forward by the lord is ineffective, because of his act, it ought a fortiori to be valueless
[018] when put forward by the non-lord. If he is ejected by a non-lord who is not his
[019] feoffor but a complete stranger, he brings the assise, and villeinage is excepted against
[020] him, that exception does not lie for the stranger for the reason stated above. For that
[021] reason the plaintiff need not replicate ⁷<as to his freedom, though the disseisor wishes
[022] to put himself on the assise as to that, because his status is of no concern to the
[023] stranger, [and] because if he should put himself on the assise and should be found to
[024] be a villein, it would not follow therefrom that the other had not disseised him wrongfully,
[025] since he is another's villein, and if the villein's lord could not have the assise,
[026] because he did not take the tenement into his hand when it was in the hand of his
[027] villein, before⁸ the disseisin, and the villein cannot have it because he is the villein of
[028] another, the disseisor could thus⁹ acquire another's tenement by disseisin which he
[029] could not acquire by action, though he has no right at all, and thus he would gain by
[030] his own wrong,¹⁰ which ought not to be. The villein of another is thus not required to
[031] put himself on the assise with respect to his status, unless he so wishes. If he does, and
[032] the jurors say he is a villein, but another's, it is evident that the stranger has no right
[033] to disseise him, because he ejects on another's right, not his own, therefore [he does]
[034] wrongfully, because without right, what if

Notes

1. Supra i, 397

2. Infra 104

3. Infra 101, 104

4. Supra ii, 89, iii, 99, infra 104

5. Supra ii, 86

6. Supra ii, 85, 86, iii, 99

7. Supra, i, 397

8. ‘ante’

9. ‘sic’

10. Supra ii, 133