Bracton: Thorne Edition: English. Volume 2, Page 141

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Volume 2, Page 141

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[001] that¹ the lord thereby loses his services, for when one gives a tenement, he gives a
[002] certain tenement in this way, that he receive certain customs and certain service,
[003] as was said above, [but] that, with all due respect to chief lords, cannot be said,²
[004] and hence if he has what he bargained for he cannot rightfully claim more, and so let
[005] him take what is his and be gone. For the gift is not made that he have the wardship
[006] of the land and the marriage of the heir, but that he have homage and service. [It is
[007] true that] when he has homage and forinsec service is owed [it follows that]³ the
[008] chief lord is entitled to relief and the wardship of the land and marriage of the heir
[009] when they arise, which follow upon forinsec, that is, the service of the lord king.
[010] But he will never have these simultaneously, only one, when it arises, either the relief
[011] or the wardship and marriage of the heir, and it may well be that one of these will
[012] always occur and the other never, and thus, though the wardship and marriage of
[013] the heir may be worth more, if the lord has only the relief let him be content with
[014] that,⁴ for where one is bound to two things disjunctively he is discharged by paying
[015] or doing one. ⁵<It is eminently true that a donee may give the thing and the land given
[016] him to whomsoever he wishes, unless the gift specially provides that he may not.>⁶
[017] Hence when a chief lord prevents his tenant from giving he does him an injuria
[018] and a manifest disseisin, since he does not permit him to use his property and his
[019] seisin.⁷ The tenant, though in truth he causes him damage, does no wrongful act
[020] to his lord by such gift, since the lord may have [his] relief from his feoffee and his
[021] heirs, and though he causes him damage it will not be an injuria, for the reason
[022] aforesaid. Indeed, it may be shown that the chief lord commits an injuria by putting
[023] himself in seisin when the tenant's gift is first made, at once or after a time, if such
[024] action is not permitted him by the agreement, for suppose that when he attempts
[025] to put himself in seisin he is repulsed, or that having put himself in seisin he is at
[026] once ejected; in order to be entitled to an action for the recovery of seisin he must
[027] say and show that he has a right and that an injuria was done him. [But] when he
[028] has been repulsed without having obtained seisin, I do not see any action by which
[029] he may acquire a seisin he never had, or the seisin of some ancestor; nor, when he is
[030] ejected, can he recover a free tenement by the assise, a free tenement he did not
[031] have. If he causes the [tenant's] donee to be summoned to show why he entered
[032] into his fee, he may answer and show the reason,

Notes

1. Om: ‘hoc facere non potest quia’

2. ‘quod quidem non est verum ... dominorum,’ from lines 1-2

3. ‘sequitur exinde,’ as supra 116

4. Infra 267

5. Supra i, 381, from above

6. Supra 68, infra 142, 143

7. Infra iii, 155