Bracton: Thorne Edition: English. Volume 3, Page 35

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Volume 3, Page 35

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[001] captured by the enemy, while he is within their power; when he has returned to freedom
[002] out of their hands it will be otherwise.¹ It does [not] lie² for a free woman married
[003] to a villein, but³ conversely, for a free man married to a neif in⁴ a villeinage, while
[004] both are under the potestas of their lords.⁵ ⁶<It lies for them for the wife's property
[005] previously acquired, when the free wife and the villein are both in possession and
[006] are⁷ outside the potestas of the lords,⁸ as where a villein enters to a free wife having a
[007] free tenement or dower; if they are ejected they will recover despite the servile status
[008] of the husband.>⁹ But an action for property to be acquired does not lie for the free
[009] wife except after the death of the villein, as for a free woman freed from a bondsman.¹⁰
[010] [[After his death] no more than in his lifetime, but she will be provided for by another
[011] writ.]¹¹ The assise never lies for a free man claiming his wife's villeinage, but it will
[012] lie for his own free tenement despite the villeinage of his wife.¹² Nor does it lie for one
[013] claiming his mother's inheritance who was born of a free wife and a villein, married
[014] and established under the potestas of lords, if he is in seisin after her death, that is,
[015] against his lord within whose potestas he is. But it lies against all others except the
[016] chief lord, if the others are not heirs of that inheritance, if he is ejected at once, or if
[017] the others are heirs, if he is ejected after a peaceful time [in possession];¹³ the heirs or
[018] the lord are aided by another writ. It is not available to him, that is, to a man of
[019] religion, according to some,¹⁴ who has been enfeoffed by one who holds of the lord
[020] king in chief, or who holds of another, if the residue remaining in the hands of the
[021] feoffor may not suffice for full service, because of the constitution of liberty.¹⁵ Nor
[022] does it lie for one disseised by the lord king, or by his bailiffs in his name, unless
[023] the disseisin is manifest, and then the will of the lord king must be awaited.¹⁶ If it is
[024] not manifest, as where there is a disagreement as to boundaries, the will of the lord
[025] king must still be awaited, that by his precept, and if it pleases him, a perambulation
[026] be made and the matter so determined.¹⁷ Nor does it lie for one who holds in villeinage
[027] and by villein customs, though his person is free, whether the tenement is a pure
[028] villeinage,¹⁸ or privileged, as [in] the demesne of the lord king,¹⁹ because such persons
[029] hold not in their own name but in another's,²⁰ [when all the customs and services in
[030] the pure villeinage are wholly uncertain.²¹ But if they are certain, as in a privileged
[031] villeinage, or in a pure villeinage, and the tenant is ejected, though the remedy by
[032] assise of novel disseisin does not lie for him, because he holds in villeinage and in the
[033] name of another,²² it may well be maintained that the assise be turned into a jury,
[034] if only to inquire as to the agreement or the privilege, that the plaintiff may at least
[035] have his agreement or privilege.]²³ Nor does the assise lie for one who has intruded
[036] himself into a tenement contrary to an agreement,

Notes

1. D. 41.2.23.1; supra ii, 52, 66

2. ‘non competit,’ as throughout this section; infra 93, 113, 115, 172

3. ‘sed e converso’; om: ‘non’

4. ‘in’

5. Supra 28, infra 114

6. Supra i, 392; the sentence following the addicio seems to be part of it

7. ‘sint’

8. Infra 93, 115

9. Infra 93, 115, 172

10. Infra 93, 113; B.N.B., no. 702

11. Infra 113

12. Supra 28

13. Om: ‘recuperabit’

14. Infra 37; J. M. W. Bean, Decline of English Feudalism, 43, 49, 61, 67, 68

15. Magna Carta (1217) ca. 39; (1225) ca. 32; infra 37

16. Infra 139, 153

17. Infra 139-40, 153

18. Supra ii, 89, infra 131

19. Supra 34, infra 39, 108

20. Infra 84, 108

21. Supra ii, 37, 89, infra, 39, 108, 109, 131

22. Supra ii, 89-90, infra 109, 131

23. Supra ii, 85, infra 90, 131