Bracton: Thorne Edition: English. Volume 3, Page 37

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Volume 3, Page 37

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[001] rendering rent to me, and I may give it to another and attorn my tenant to rendering
[002] it by his hand to my feoffee, as he formerly rendered it to me. By this my tenant will
[003] not be the man of him to whom I attorned him, nor will he to whom he is attorned be
[004] his lord; thus the assise of novel disseisin may lie between them if he does not [do]
[005] the service or pay the rent.>¹ The assise does not lie for one who has once retracted
[006] himself before the justices, [both from the writ and from the assise,]² because of some
[007] defect in the writ, or as to the person of the plaintiff, or because of error, as more fully
[008] below.³ The assise does not lie for him who has once acknowledged himself a villein
[009] before the justices and has been so declared, unless at a later time his status is
[010] changed so that he has the privilege or an exception, as below.⁴ Nor does it lie for him
[011] who of his own free will has once given or restored a tenement to another, in a judicial
[012] proceeding or without one, provided it may be proved, because volenti non fit injuria.⁵
[013] If a tenant, though not present, wishes to restore the thing to the demandant,
[014] in an action of spoliation or on the property, it suffices if he hands over his charter in
[015] court as a symbol of the livery and restitution; such transfer of the instrument or
[016] symbol, without other formality, suffices for livery of the thing, with respect to
[017] restitution, though not with respect to a gift, since no corporeal transfer takes place.
[018] Hence when one so restores in court, if he afterwards maintains himself in seisin by
[019] force and is ejected he will not recover, because he once voluntarily restored in the
[020] manner aforesaid. For in restitution the formality observed in gifts need not be employed.
[021] Sometimes the assise does not lie because of the gift, as where one gives so
[022] much of his tenement in free alms that the chief lord loses his service, because that is
[023] contrary to a constitutio,⁶ [as in the roll of pleas which follow the king in the twenty-third
[024] year of king Henry at Catshill before William of Ralegh, [the case] of Robert
[025] of Tateshale and the prior of Brickessete, concerning a tenement in Batheford,]⁷ as
[026] where one holds of the lord king in chief by military service and enfeoffs a man of
[027] religion in free alms,⁸ or holds of someone other than the lord king [and enfeoffs] for
[028] less service. Hence if the lord king or the other chief lord immediately ejects such
[029] man of religion he will not recover,⁹ unless he has time after seisin. Restitution by
[030] the assise does not lie because of an invalid causa possidendi, as where a woman has
[031] been disseised of a tenement held in the name of dower after it has clearly been proved
[032] in the ecclesiastical court that she never

Notes

1. Supra ii, 238-9

2. Infra 65

3. Infra 65, 79

4. Infra 84

5. Supra i, p. xxxvii

6. Magna Carta (1217) ca. 39; (1225) ca. 32; supra 35; infra iv, 232

7. Cal. Pat. Rolls, 1232-47, 234; B.N.B., no. 1248 (margin): ‘Nota . . . quod non potest quis alienare totum tenementum suum in elemosinam per quod dominus capitalis amittat servicium suum.’ Belong infra at n. 9; om: ibi . . . competit assisa’

8. Ordinance of 1228: Cal. Cl. Rolls, 1227-31, 88; Bean, 58

9. Supra n. 7; om: ‘sicut . . . eodem’