Bracton: Thorne Edition: English. Volume 3, Page 113

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Volume 3, Page 113

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[001] that the other has no interest. If he replicates against his lord on his free status, or
[002] against the stranger on the fact that he has no interest, that being established by
[003] careful examination, we must not proceed to the assise as long as such status continues,
[004] [unless he freely puts himself on the assise,] until it is changed. The same may
[005] be said of a free man¹ under potestas, that he must prove himself free, whether he
[006] wishes to or not,² before the assise proceeds, because the question of status³ is preliminary
[007] and must be dealt with first.⁴ Nor will he who is outside potestas have to show
[008] any privilege, only that he is beyond potestas and in such free status that he cannot be
[009] recalled to servitude without writ, [for privileges have their place in an action on
[010] status,⁵ where, if he so wishes and if it is necessary, he may defend himself in his free
[011] status by the privilege or in some other way,] and⁶ ask judgment whether one despoiled
[012] ought to answer as to his status before he has been restored.⁷

Of the exception by reason of joining together, as where a free woman marries a villein.

[014] The tenant may⁸ except against the plaintiff and have an exception by reason of
[015] adjunctio, as where a free woman has married a villein within the potestas of his lord,
[016] as where, before her marriage, an inheritance falls to her, or after, and the villein's
[017] lord ejects them both and both claim, since neither can do so without the other; the
[018] exception will bar her, because of her villein husband joined to her, and she will never
[019] recover during his lifetime, not until after his death, the impediment, so to speak,
[020] having come to an end,⁹ cessante causa, cesset effectus;¹⁰ [not, however, by writ of novel
[021] disseisin but by a writ specially drawn,¹¹ which will be this: ‘The king to the sheriff,
[022] greeting. Order etc.’ After his death, I say, whether it is natural or civil death; civil,
[023] as where, during the life of his wife, he assumes the habit of religion in such a way that
[024] he cannot return to the world. But I ask how may this be established. I answer that it
[025] can only be done by the letters of the ordinary, the archbishop, that is, or the bishop,
[026] before whom his profession must be made. The letters of an abbot or prior do not suffice
[027] for proof, though they may raise a presumption. The habit of a probationer is not
[028] enough. By natural death, I say, because natural death resolves all things.]¹² But
[029] what if the disseised free woman impetrates under her own name and then marries
[030] the villein, who dies before the taking of the assise?

Notes

1. ‘libero’

2. ‘velit nolit’

3. ‘quaestio status,’ as supra 103, 112

4. Supra ii, 297, 318, iii, 112

5. ‘quia . . . status,’ from line 12; supra 104, 105

6. ‘et’

7. Supra 103-4

8. ‘poterit,’ all MSS

9. Supra 93, 96, infra 115; B.N.B., no. 1837 (margin): ‘Nota quod mulier que est libera, vel in statu libero saltem, adminus non debet disseisiri quin recuperare possit per assisam quamvis nupta fuerit villano, set hereditatem petere non poterit.’

10. C. 7.18.1

11. Supra 35

12. All from B.N.B., no. 1139 (1235-6)