Bracton: Thorne Edition: English. Volume 3, Page 103

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Volume 3, Page 103

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[001] he alleges unequivocally that he is free, no replication made as to his free status, and
[002] immediately puts himself on the assise, or on a jury of kindred,¹ the assise is turned
[003] into a jury to inquire as to status,² that is, whether he is free or bond, [there will then
[004] be no place for a conviction, because his status is put in question with the plaintiff's
[005] consent,] and according to its finding the assise will stand or fall.³ If the jurors say he
[006] is a villein, he will take nothing by the assise but seisin will remain to the lord;³ ⁴ <He
[007] will not be prejudiced with respect to his status, nor as to other actions, so as to be
[008] unable to replicate on his free status, for if the jurors say he is a villein his status is in
[009] no way changed, the only effect of their finding being that he will take nothing by the
[010] assise; he will not be given over to the lord, as he would be were he within the potestas
[011] of his lord when he brought the assise,⁵ and if his status is litigated at a later time he
[012] may defend himself by his perpetual and peremptory exceptions, that he was⁶ in the
[013] king's demesne or in a city for a year and the like. And so if he excepts as to the time,
[014] when there is a suit for changing his status.⁷ But what if the villein puts forward such
[015] exceptions when the exception of villeinage is raised against him by way of an exception
[016] against disseisin? It appears that by so doing the action of status is determined
[017] by the assise of novel disseisin which would not be so if he had said simply ‘I am
[018] in a free status.’> <It is not determined, because it is done by consent of the parties.>⁸
[019] if they say he is free he will recover by the assise. But whether they say one thing or the
[020] other, no one⁹ will be prejudiced thereby, neither the lord nor the villein, in an action
[021] on status, if the lord afterwards claims him by a writ de nativis, because status is raised
[022] by way of an exception and determined by consent. If the plaintiff were here within
[023] the potestas of his lord, and the jurors said that he was a villein, the assise would fall,
[024] but the action on status would not fall on that account.¹⁰ Thus the tenement and the
[025] villein would remain to him, saving to the villein (as in the former case) any question
[026] as to his status, if he wishes to assert his freedom, for an exception as to status raised
[027] by way of exception will no more prejudice [a statuservus] in possession of his servitude,
[028] so as to prevent him from asserting his freedom and proving it,¹¹ than it would
[029] the lord in the case above of the statuliber, if he should afterwards be claimed in servitude.
[030] If the plaintiff, being in a free status and disseised by his lord, says from the
[031] outset, when the exception of villeinage is raised, that he is in a free status, whatever
[032] the lord may say, and asks judgment whether he ought to put the matter of his status
[033] to the assise or to other proof before he has been restored, since if his lord has a right
[034] in his body, which is the principal thing, he ought first to recover the body and then
[035] that which follows it,

Notes

1. Infra 104, 105

2. Supra 90, 92

3. Supra 92, infra 106

4. Supra i, 397

5. Supra 84

6. ‘fuit’

7. Om: ‘cum . . . mutando’

8. Om: ‘non’

9. ‘nulli,’ supra 90

10. ‘sed propter . . . non caderet quaestio status,’ from line 23

11. Infra 105, 111