Bracton: Thorne Edition: English. Volume 3, Page 38

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Volume 3, Page 38

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[001] was lawfully married to him in whose name she has¹ dower, because if it was de facto,
[002] it was not de jure, and where there is no marriage, there is no dower.² It thus ceases
[003] to be a free tenement because of the invalid causa possidendi. Therefore, though at the
[004] outset it was thought that a marriage existed, there was none, and therefore no
[005] dower, though such woman is ejected without judgment, she will not recover by the
[006] assise, because of her invalid causa possidendi. It does not here cease to be a free tenement,
[007] because it in truth never was a free tenement; a thing cannot cease which
[008] never began. The same may be seen if the husband of a woman marries³ another,⁴
[009] the first de jure and the second de facto; when that is discovered, when the first has
[010] proved the second marriage adulterous, it fails completely, and, because she then has
[011] no causa possidendi, by virtue of the true proof made, if she is ejected without judgment
[012] she will not recover by the assise, because of her invalid causa possidendi, because
[013] the seisin such woman had earlier was void in itself.⁵ [This will be true no matter
[014] for what reason it is shown that the second marriage cannot stand but is completely
[015] invalid,⁶ unless one says that ignorance from the beginning excuses them.]⁷ There is
[016] nothing there except a presumption subsequently overthrown by true proof. Restoration
[017] by the assise does not lie where, there being no children born of the marriage,⁸
[018] <or if there are children they are proved bastards, or that they cannot be heirs is
[019] proved in another way, as above,>⁹ a husband is at once ejected from his wife's property
[020] after her death; after the lapse of time he cannot be ejected without judgment.
[021] Restitution by the assise fails because of an untrue impetration, that is, where one
[022] impetrated before there was any reason for impetrating, which may easily be ascertained
[023] by the date of the writ;¹⁰ and so if there was a reason it subsequently ceased
[024] to exist, as where the disseisor restores the thing seized to the owner; it having been
[025] freely offered by the taker restoration by the assise ceases. It is otherwise if the true
[026] lord usurps his seisin to himself by force, without judgment. There ceases to be a
[027] reason, and restitution by the assise fails, if the disseisee, dissembling the injuria,
[028] freely remits and quitclaims the thing to the spoliator,¹¹ or condones it, as where¹² by
[029] ratifying it he confirms a gift the disseisor has made, when he could regain his seisin
[030] if he so wished. The assise does not lie but falls completely though the reason that
[031] first existed [does not] cease to exist, because of the order of pleading not observed,¹³
[032] as where one has first impleaded his disseisor ¹⁴<provided it is by a writ that lies in
[033] his case,>¹⁵ of the tenement

Notes

1. ‘habuerit’

2. Supra ii, 266, infra 362, 372, 373

3. ‘duxerit’

4. ‘aliam’

5. ‘quia seisina . . . fuit in se,’ from lines 15-16

6. ‘vitiosum’

7. Supra ii, 185

8. Supra i, 393

9. Supra 34, infra 125, 151

10. Infra 66, 79, 126

11. ‘spoliatori,’ CE, Y

12. ‘ut si’

13. Supra ii, 319, 321

14. Supra i, 393

15. Supra ii, 321