Bracton: Thorne Edition: English. Volume 3, Page 116

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Volume 3, Page 116

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[001] for example, a wife is perfidiously ejected by some wrongdoer when her husband has
[002] gone on a pilgrimage to the Holy Land, or undertaken some other long journey, that
[003] the wife may remain disseised in the meantime. ¹She is aided by the judge acting ex
[004] officio, by counsel of the court though not by right of action, and if both [do not] claim
[005] by the assise and it is excepted against her that she cannot sue without her husband,
[006] an exception based upon deceit and fraud may be made against the disseisors. ²The
[007] tenant has exceptions against the plaintiff, as where the plaintiff has been excommunicated;
[008] [if] the tenant shows this by the letters patent of the ordinary, the plaintiff
[009] will have to show letters of absolution.³ He may also except against the person of
[010] the plaintiff that he has no action⁴ or plaint since he is in possession in the name of
[011] another, as where he is a procurator, guardian, farmer, servant or household. If that
[012] is proved, the writ and the assise fall against them, though it is good against the
[013] others, by another writ. An exception lies against a plaintiff [because of lordship],⁵ as
[014] between a lord and his tenant for service owed, as where a chief lord sues by the assise
[015] when distraint lies for him,⁶ because he ought to distrain if he can; if he cannot, he
[016] must have recourse to a superior, that the sheriff may aid him to distrain. But conversely,
[017] [the assise] lies between a tenant and his lord where the lord has disseised his
[018] tenant of his tenement. The same exception arising from lordship also lies in an assise
[019] between a lord-plaintiff and his tenant where the tenant has not paid his rent; [the
[020] assise] lies between a tenant-plaintiff and an ejecting lord just as between any other
[021] persons. A rent is sometimes a free tenement, when it issues from a free tenement, as
[022] where one enfeoffs another of a tenement for homage and service, or if when one has a
[023] free tenement, he gives another a rent from that tenement, or [when], whether he has
[024] a tenement or does not, he establishes a rent for another and his heirs for having some
[025] servitude in the other's land.⁷ If one owes a rent or service to his lord and does not
[026] wholly disavow it but does not pay it, the assise does not lie between the lord and his
[027] tenant, only distraint, if the lord can and wishes to distrain. If he wishes to but cannot,
[028] let him have recourse to the aid of the lord king, that he order the sheriff to aid him,
[029] and hence the assise does not lie as long as he can distrain, by himself or with the help
[030] of a superior. But if his tenant disavows him completely, saying that he holds nothing
[031] of him, then distraint ceases at once, because of which some say that the lord ought to
[032] claim the land in demesne,⁸ but nevertheless it is submitted that the assise of novel
[033] disseisin of a free tenement lies, since distraint fails, for in truth though he is a tenant

Notes

1. New sentence

2. New paragraph; exceptions arising from plaintiff's person: supra 84

3. Infra iv, 327

4. ‘actionem’

5. ‘ex ipso dominico,’ as below lines 19-20

6. ‘sicut . . . debito, ut si petat’

7. Supra 61, 69

8. Supra ii, 235