Bracton: Thorne Edition: English. Volume 3, Page 87

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Volume 3, Page 87

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[001] when he may claim no right in the body, which is the principal? Thus an exception
[002] raised by a lord against one who is outside his potestas is ineffective, because if it at
[003] first sight seems proper, it is extinguished by the replication that he is outside his
[004] potestas and, so to speak, sui juris (which may if necessary be proved in many ways)
[005] so that he cannot be ejected before his body is deraigned, for we acquire only through
[006] those we have within our potestas as by bondsmen, free men etc.;¹ what is acquired by
[007] such persons will be the property of their lords,² but that acquired by those beyond
[008] our potestas only when they have come within our control.³ If it is a stranger who
[009] ejects the villein of another, who is outside the potestas of his lord, the exception will
[010] obviously not lie for him, one who has no right, when it does not lie for the lord who
[011] has a right in the villein.⁴ Therefore, though at another time the exception would lie,
[012] for the lord, as was said above, if the villein is within his potestas, not everyone is entitled
[013] to raise it, not unless he has the right to raise it, or if he has the right, it can
[014] [not] be nullified by a replication, either because the exception is not his to put forward,
[015] because he has no right, or if he has, the exception could be extinguished by a
[016] replication, [that is], by one who has the right to replicate, because just as one does
[017] not have the right to except when he has no interest at all, when he is a stranger, so a
[018] replication will not lie for a plaintiff because it belongs to another and not to him, and
[019] thus the exception will lie for one who in truth has no interest in the villein, and be
[020] good against the villein-plaintiff, because he has no replication, until the arrival of
[021] him who has the right to replicate. For example, a villein established within the
[022] potestas of his lord, [who] holds a villeinage of his lord,⁵ acquires a free tenement from
[023] someone other than his lord; he is ejected from the villeinage by a stranger who has
[024] no interest in the villein, the villein sues by the assise, the stranger raises the exception
[025] of villeinage, the villein replicates that it is not for the stranger to except because
[026] it is no concern of his, the stranger to the contrary that if the exception of villeinage
[027] does not lie for him, the replication does not lie for the villein but for his lord, and
[028] thus, the replication and exception balancing each other, the stranger will remain in
[029] seisin until he, not the villein but the true lord who has the action, sues by claiming
[030] restitution by the assise. Thus if the stranger excepts, his exception is not nullified by
[031] the replication that it is no concern of his, since, though the exception is not rightfully
[032] his, it nevertheless is good against the villein because a villein has no action,⁶ ⁷<it lies
[033] for the stranger with respect to the tenement held in villeinage because if the villein
[034] is ejected the action belongs to the lord, not the villein, because a villein has no action,>

Notes

1. Inst. 2.9.pr.; supra ii, 135, 288

2. Inst. 1.8.1; supra ii, 87

3. Supra ii, 37

4. Supra ii, 88

5. ‘et’ ‘qui tenet villenagium de domino suo,’ from line 29; infra 99

6. Supra 33, infra 101-2, 105, 112

7. Supra i, 396