Bracton: Thorne Edition: English. Volume 3, Page 108

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Volume 3, Page 108

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[001] John,¹ and thus that exception did not prejudice him in the action on status. On this
[002] matter may be found in the eyre of William of Ralegh in the county of Leicester, an
[003] assise of mortdancestor [beginning] ‘if Robert Freman,’² where it is said that though
[004] villeinage is objected against a free man claiming the seisin of an ancestor on the
[005] ground that he does villein customs by reason of a villeinage, he is not on that account
[006] proved a villein, nor will the exception bar him so as to prevent the assise from proceeding;
[007] the tenant, if he wishes to litigate the question of status, must have other
[008] proofs. To the same intent in the roll of Hilary term in the fourth year of king Henry
[009] in the county of Sussex, [a case] concerning the same Martin [and John],³ who
[010] warranted certain land to his tenant in an assise of mortdancestor, and then objected
[011] against the same Martin that he could not [arraign an assise] because he was a villein,
[012] for the reason aforesaid, because he could be tallaged high and low and ought to pay
[013] merchet for marrying his daughter,⁴ and the same⁵ judgment, as above. [And that
[014] enquiry ought to be made as to whether such customs are due by reason of the person
[015] or the tenement or both may be found in the assises taken coram rege by William of
[016] Ralegh at Catshill in the county of Norfolk in the twenty-third year of king Henry, an
[017] assise of novel disseisin [beginning] ‘if Robert of Rikengehale.’⁶ And in the same roll,
[018] an assise of novel disseisin [beginning] ‘if William Byard’;⁷ and in the same, an assise
[019] of novel disseisin [beginning] ‘if Richard of Merlay.’]⁸ We must also see, when a free
[020] man does villein customs and services, whether⁹ the services are certain and fixed or
[021] uncertain, in order to ascertain whether the assise lies for him or not. When a free man
[022] holds in socage on the demesnes of the lord king, in order to ascertain whether the
[023] assise lies for him or not we must see whether he holds as a sokeman in free or in
[024] villein socage, or as a feoffee holding freely by fixed and certain services. If he is enfeoffed
[025] to hold freely, in free socage or by military service,¹⁰ or by certain and fixed
[026] services,¹¹ and is a free man and not a villein, he will recover by the assise, if he is
[027] ejected, despite the fact that he does [villein] services, because he holds freely.¹² But
[028] if he holds in [villein] socage as of the demesne of the lord king, though the services are
[029] certain the exception of villeinage will bar him,¹³ for a sokeman of that kind has no
[030] free tenement because he holds in the name of another. That one enfeoffed in that way
[031] may have the assise if he is ejected, despite the exception of villeinage, may be seen in
[032] the roll of Easter term in the twelfth year of king Henry in the county of Warwick,
[033] [the case beginning] ‘William

Notes

1. Supra 35, infra 131

2. Not in B.N.B.; Vinogradoff, 80 n.

3. B.N.B., no. 88; C.R.R., viii, 216

4. Supra ii, 90, iii, 39, 95, infra 131

5. ‘idem,’ as 104, line 27

6. Not in B.N.B.; no roll extant

7. Not in B.N.B., supra 95

8. Not in B.N.B., supra 95

9. ‘cum liber homo . . . et servitia, utrum’

10. Supra ii, 38, iii, 39, infra 132

11. B.N.B., no. 1918 (margin)

12. Supra ii, 85, 90

13. Supra ii, 89-90, iii, 35, infra 131