Bracton: Thorne Edition: English. Volume 3, Page 115

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Volume 3, Page 115

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The form of writ where the wife but not the husband was in seisin, since she cannot claim by herself without her husband.

[002] ‘Such a one and his wife have complained to us that such a one wrongfully etc. has
[003] disseised such a one, his wife.’¹ ²<The same form could be used, it seems, if a villein
[004] beyond the potestas of his lord and in a free status marries a free wife possessing a free
[005] tenement and the lord (when he has deraigned such villein) ejects the free wife from
[006] her free tenement, since the villein cannot have a free tenement nor ought she to be
[007] heard without her husband, [but] because that tenement is not the acquisition of the
[008] villein, except to the extent that he has custody of it, the woman will recover notwithstanding
[009] the exception of villeinage. And the same will be true even if he is not in
[010] a free status.³ I speak of property acquired, not of property to be acquired.>⁴ By this
[011] writ the matter will be determined unless one or both die before the taking of the
[012] assise: if both die, or only the wife dies, the writ and the assise fall completely; if only
[013] the husband it will not, for the wife will still have recourse to the first disseisin, which
[014] would not be true in the converse case. If the wife commits a disseisin and then marries,
[015] the writ against her is good and the assise will proceed, though at first sight it
[016] seems that it ought to fall since she ought not to answer without her husband. [She
[017] will answer without him, but as to whether she ought to answer or not we must distinguish
[018] whether she married before impetration or after it; if before, the writ falls;
[019] if after, it does not, because she could marry fraudulently to defeat it.] Suppose that
[020] the husband alone, without his wife, but by reason of the inheritance of his wife, commits
[021] a disseisin, as of common of pasture, and dies: quaere whether the wife is liable
[022] for the disseisin after the death of her husband. ⁵Whether the writ was impetrated in
[023] his lifetime or not, she will not be subject to a penalty, though she is bound to make
[024] restitution. Suppose that the husband has been disseised in this way: his wife leaves
[025] him and allies herself with another man, who both hold themselves in seisin after having
[026] ejected the first husband: quaere how he shall be aided, for it is evident that he
[027] cannot bring the assise without his wife, and if the wife is joined it follows that she is
[028] not disseised since she is in possession. It seems that he has no remedy other than recourse
[029] to the ecclesiastical court,⁶ that she be compelled to return to her husband, so
[030] that, the wife being restored, the inheritance is restored, or let a writ of novel disseisin
[031] be impetrated in the names of both, and if it is excepted against the assise that he
[032] ought not to answer him without his wife, let the replication be made against the
[033] detainor⁷ on the ground of the taking away of his wife and the wrongful detention, on
[034] the deceit and fraud, so to speak, as could be done if she were abducted and detained
[035] by her kindred. Hence the assise will proceed nonetheless and by it the matter will be
[036] decided. This remedy is also given and in the same way to a woman complainant
[037] claiming restitution against a chief lord excepting the absence of her husband against
[038] her, where,

Notes

1. Supra 114, n. 5

2. Supra i, 398

3. Supra 93, infra 172; cf. supra 35

4. Supra 35, 93, 113

5. New sentence

6. Supra 30-31

7. ‘detentorem’