Bracton: Thorne Edition: English. Volume 3, Page 112

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Bracton Online -- English

Volume 3, Page 112

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[001] does the same, both parties make the jury their judge, because of the consent, and the
[002] matter will be determined by the jury, without any possibility of conviction, because
[003] of the consent, and the plaintiff will either recover or lose. And whether he is within
[004] the potestas of his lord or outside it, whether he asserts his freedom, being established
[005] in possession of his servitude, or is claimed in servitude being in a free status outside
[006] the potestas of his lord, he will not be prejudiced with regard to the defence of his
[007] status, except that if he is under his lord's potestas and is proved by kindred the villein
[008] of his lord, who thus proves him to be a villein and his villein, his lord will always
[009] retain him as a villein, without any other proof, for here the assise and status will both
[010] be determined, which is not so in the other cases, as where a stranger puts forward the
[011] exception, or a lord does so against one outside his potestas, because another action,
[012] on status, will then be necessary.] If by the lord against one who is under his potestas
[013] with respect to the tenement he holds in villeinage¹ only, and the villein replicates
[014] that he is free, let him prove his replication by kindred or in another way, by the
[015] assise, if he can, otherwise the replication will be void and the exception good, but the
[016] plaintiff will not be prejudiced in an action on status.² [In that case, if it is established
[017] that he holds in that way, there is no need to except servitude, because even if he is
[018] free, since he holds in villeinage, no plaint or action lies for him,³ neither against his
[019] lord nor a stranger: not against a stranger, because it is not the villein who has the
[020] plaint but the lord.]⁴ If one established under potestas holds freely and also in villeinage,
[021] and the lord ejects him from his free tenement, an action and plaint lies for the
[022] villein against the lord, but against the action an exception of villeinage lies for the
[023] lord to extinguish the action and plaint. But if a stranger ejects him from his free
[024] tenement, a direct action lies by the villein and no exception for the stranger-tenant,
[025] because he has no interest enabling him to eject, nor if he were out of possession and
[026] claimed would any action lie for him, therefore he has no exception. If the villein is
[027] beyond the potestas of his lord and is ejected from his acquired free tenement, and if
[028] villeinage is objected against him when he claims restitution by the assise, and, without
[029] any replication as to status, he simply puts himself on the assise, it will be decided
[030] by the assise or jury; there will be no opportunity for a conviction, nor though he loses
[031] the tenement by the assise will he be delivered to his lord, nor will the question of
[032] status be determined thereby. If he is later claimed in servitude, he will not be prejudiced
[033] so as to be unable to defend himself in his free status, And so with respect to a
[034] stranger, if the villein-plaintiff makes no replication⁵

Notes

1. ‘in villenagio,’ as below

2. Om: ‘Item . . . in villenagio,’ redundant

3. ‘ei’

4. Om: ‘et ideo . . . actionem,’ redundant

5. ‘replicaverit’