Bracton: Thorne Edition: English. Volume 3, Page 114

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Volume 3, Page 114

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[001] Quaere whether the assise ought to proceed and whether the writ impetrated earlier
[002] is good. Or if she is disseised before marriage and impetrates after the villein's death?
[003] Both writs will be good and the assises will proceed, because the circumstances necessary
[004] to make them good have come about. But in the aforesaid cases we must always
[005] look into the status of the villein, whether he is established within the potestas of his
[006] lord or beyond it and in a free status, as was adequately explained above. An exception
[007] by reason of conjunction, that is, by reason of her husband, may be raised against
[008] a woman plaintiff though he is free, as where both are disseised of the right of the wife;
[009] both shall recover together, not one without the other: not the husband without his
[010] wife, because it is the wife's right that is in question; nor the wife without her husband,
[011] because he is the ruler of the wife and ought to defend her. It is otherwise with respect
[012] to the right of the husband, for his inheritance does not touch his wife, whether she is
[013] a neif established in a villeinage or not. Suppose the husband makes a gift of part of the
[014] wife's inheritance and puts the donee in seisin; the wife will not have the assise by
[015] herself, without her husband, nor may they have it together, for if both sue and claim
[016] by the assise, the deed and gift of the husband will bar them and the assise falls, nor
[017] will she ever recover during her husband's lifetime. [But she has a remedy after
[018] his death by the writ of entry ‘whom she could not gainsay etc.’]¹ And so if the wife
[019] makes a gift of her own property in her husband's lifetime, both cannot bring the
[020] assise together nor either alone. Another action will therefore be necessary for the
[021] husband, even in the lifetime of his wife.² Suppose that the husband and wife are both
[022] disseised and both bring the assise, the wife dies before the assise is taken, the writ and
[023] the assise fall completely; but if it is the husband who dies, the writ falls, as in the
[024] former case,³ [nor can she sue again by herself because they were both disseised and
[025] both ought to be restored. But she is aided by a writ of entry, namely, ‘in which he has
[026] no entry except through a disseisin done to her and her aforesaid husband, as to which
[027] an assise of novel disseisin was arraigned and the view had etc., the taking of which
[028] remained because of the death of the aforesaid, her husband.’⁴ Or even without the
[029] aforesaid clause, though a writ was never impetrated in her husband's lifetime, though
[030] he could have sued in good time, because her husband's negligence ought not be imputed
[031] to her.] ⁵<And so if a tenement is given to a husband and wife for the life of the
[032] wife, the free tenement will not be the husband's but the wife's, and thus the same
[033] writ will be drawn in that case.> Suppose a woman, disseised while unmarried and sui
[034] juris, brings the assise and marries before the assise is taken; the writ falls but not the
[035] assise. Another writ will be framed in her name and that of her husband which will be
[036] this:

Notes

1. Infra iv, 30

2. Entry sine assensu viri

3. Originally, ‘former case, but not the assise (as infra 115) and she may sue’

4. Infra 157, 158, 174

5. Supra i, 398; belongs infra 115 at n. 1