Bracton: Thorne Edition: English. Volume 2, Page 243

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Volume 2, Page 243

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[001] the tenant disavows him completely, the distraint will cease at once.¹ ²<A tenant
[002] may hold of his own lord who attorned his service to the other with power to distrain,
[003] and thus he may disavow him to whom his service was attorned. In that case distraint
[004] will not cease because of the disavowal.³ But if, with the tenant's consent, the lord
[005] has attorned both [homage and service] it will be otherwise, or if the tenant disavows
[006] both, the lord who attorned and him to whom he was attorned.>⁴ The lord must then
[007] aid himself in another way, whether he has right in the service or not, [by suing] to
[008] recover his seisin by a writ of services and customs ‘which he is accustomed to render
[009] him,’ so that the writ speaks only of seisin and not of right.⁵<Since the lord has been
[010] completely disavowed, he will not have the writ [of right] of services and customs
[011] because the tenant does not claim to hold anything of him;⁶ he must therefore
[012] proceed in the other way.>⁷ ⁸<But when distraint has ceased by disavowal, and the
[013] lord can establish his seisin, the assise of novel disseisin ought to lie,⁹ since by his
[014] disavowal the tenant begins to be a non-tenant. And for this there is good reason.>¹⁰
[015] There will then be neither the duel nor the grand assise, since the writ speaks only
[016] of seisin. When the lord claims service ‘of which he was recently in seisin’ the
[017] tenant will [then] either admit the claim or make no reply to it or completely deny
[018] and reject it. If he admits the claim, the result is clear. If he makes no reply he
[019] will be without defence. If he denies the claim the demandant must prove his claim
[020] and his seisin. We must then see how, for if he offers to prove it by the body of his man
[021] the duel will not lie, since the right is not in question; [nor will it lie if the tenant
[022] should wish to defend himself by the duel or put himself on the grand assise, for the
[023] same reason, because the right is not in dispute.] He must, therefore, prove his claim
[024] by the country (and the tenant defend himself by the country) since the truth is put
[025] in doubt by the tenant's denial. If the demandant¹¹ is unwilling to put the proof of his
[026] case to the country, since he has no other means of proof an action will be denied him.
[027] If¹² when he puts himself on the country he fails in his proof he shall lose, whether he
[028] has right or not, [for] though one has right proof nonetheless may fail.¹³ If it is
[029] the tenant who is unwilling to put himself on the country, since he has no other
[030] defence he will be undefended and the demandant will recover, as may be seen in
[031] [the portion on] the assises, where a plaintiff or demandant puts himself on the
[032] assise in order to prove his claim and the tenant refuses the assise.¹⁴

Notes

1. Infra 441, iii, 116, 117

2-4. Supra i, 383, from infra lines 6-11

3. Supra 239

5-7. ‘Sed cum ... procedendum,’ from lines 14-16; cf. infra 441, 444, 446

6. The words of the writ: ‘de libero tenemento suo quod de eo tenet in N.’

8-10. ‘Sed cum cessaverit ... est ratio,’ from lines 11-14

9. Infra iii, 36, 116, 117

11. ‘petens’

12. ‘Si’

13. D. 26.2.30: ‘non ius deficit sed probatio’

14. Infra iii,