Bracton: Thorne Edition: English. Volume 3, Page 110

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Volume 3, Page 110

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[001] and he denies it or alleges the contrary and¹ freely puts himself on a jury, with this
[002] protestation, that if the jurors say that he is a villein, the assise may remain without
[003] any opportunity for recovery, by a conviction or in any other way, and conversely, if
[004] they say he is free that the assise may proceed, there will be no place here for a wager
[005] nor even for a conviction, because of the mutual assent of both. Conversely, if the exception
[006] of villeinage is not raised, but the plaintiff and tenant simply put themselves
[007] upon the assise, nothing being said against the assise, whether the jurors find for one
[008] party or the other a conviction will lie, because the assise was taken in the manner of
[009] an assise and not of a jury, and this is so whether the plaintiff is free or bond, within
[010] the power of his lord or beyond it, as may be seen, [in the roll] of the eyre of Robert de
[011] Vere, earl of Oxford, and Martin of Pateshull in the county of Hertford in the fifth
[012] year of king Henry.² If one who is [in a free status], manumitted or privileged, or who
[013] has a perpetual exception, is claimed in servitude and dies in such status, and his son
[014] or other heir afterwards obtains the seisin of such ancestor, after his death, and is
[015] ejected without judgment, he will recover by the assise of novel disseisin because of
[016] the free status of his ancestor. Conversely, if a free man dies in a servile status, as
[017] where he enters into a villeinage to a neif, or a free woman couples herself to a villein,
[018] or if a free man is possessed bona fide by another, whether he has asserted his freedom or
[019] not,³ and his son or other heir, if he has seisin after him is ejected wrongfully and without
[020] judgment from some tenement which his father or other ancestor held while
[021] established within the potestas of another as a villein, though in truth free, his heir
[022] will not recover by the assise of novel disseisin, especially because of the servile status
[023] in which the ancestor died. This is shown [in the roll] of the eyre of William of Ralegh
[024] in the county of Buckingham, an assise of novel disseisin [beginning] ‘if Lucia.’⁴
[025] Among other matters note that though a villein has lived in a city or a privileged place
[026] or is outside the potestas of his lord, he cannot claim the seisin of an ancestor [though
[027] he may claim his own seisin in an action of spoliation, he may not claim another's,] if
[028] the ancestor on whose seisin he claims was a villein, because, against his lord in whose
[029] potestas he is a villein will have no action, and because a villein in a servile status will
[030] have no heir except his lord. With respect to a tenement of which he is enfeoffed,
[031] whether he is outside the potestas of his lord or within it, provided the lord has not
[032] taken the tenement into his hand, if [the heir] is ejected by anyone other than his lord

Notes

1. ‘et,’ all MSS

2. Not in B.N.B.; ‘comitis Oxoniae et Martini . . . in comitatu Hertfordiae’

3. Om: ‘et ita . . . obierit,’ redundant

4. Not in B.N.B.