Bracton: Thorne Edition: English. Volume 3, Page 105

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Volume 3, Page 105

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[001] for his lord and no one else. Thus since he has an action for neither, he cannot defend
[002] his disseisin and injuria by an exception. Thus there will be a difference between the
[003] case of a villein and his lord, and a villein and a stranger. Nor can the disseisorstranger
[004] defend himself in any way from the charge of having committed an injuria
[005] when a villein in a free status says that he has disseised him wrongfully, wrongfully
[006] for this reason, because without right, without even an assise, for if he says, as above,
[007] that he disseised him rightfully because he is the villein of another, that is not for him
[008] to say but for him whose villein he is; if he says that he ejected him rightfully because
[009] not he but another is the owner of the thing, by that he will never prove that he has
[010] ejected him rightfully, since he who is in possession has a greater right in the thing
[011] possessed, because he is in possession, than he who was out of possession¹ who had no
[012] right. Therefore no non-lord stranger may raise the exception of villeinage against the
[013] assise with respect to a thing which the villein holds in his own name, though he may
[014] when the villein is in possession in the name of another, but that is because the action
[015] does not lie for the villein but for the lord in whose name he is in possession.² Nor must
[016] the assise be deferred because of the exception of villeinage when the villein replicates
[017] on the basis of his free status, for disseisin and spoliation must be determined before
[018] any question of status.³ And note that a statuliber need not put the question of his
[019] status to the assise before he has been restored,⁴ nor ought he to be compelled to do so
[020] by denying him an action until his status [has been decided], because [if], though
[021] despoiled and disseised, he had not sued by the assise and was claimed into servitude
[022] by a writ de nativis, the action on status would not proceed (the exception of spoliation
[023] having been raised) before he had been restored. ⁵<or to a jury, unless through
[024] his own stupidity he freely does so, and if he does so, [and is found to be a villein], he
[025] is not prejudiced as to his status (only to the extent that the assise does not proceed)
[026] even though kindred are produced in proof of the exception,⁶ but another action
[027] will be necessary to alter his status. If he asks judgment whether he ought to put
[028] himself on the assise as to anything touching his status before he has been restored,
[029] though the question of status has been raised by way of an exception, judgment ought
[030] to be for him, and let the assise first proceed as to whether he has been disseised or not.
[031] But if the exception of status is raised against one within the potestas of his lord, let
[032] him, whether he is in fact bond or free, ⁷put himself on the assise as to his status,
[033] whether he wishes to or not, otherwise an action or plaint will be denied him.⁸ If it is
[034] raised against a villein and he is proved a villein by kindred, he will be delivered

Notes

1. D. 43.17.2; supra 98

2. Supra 87, 101-2

3. Supra 85, 104

4. ‘in assisam antequam de spoliatione . . . fuerit restitutus’; supra 104

5. Supra i, 397: belongs supra line 20, after ‘assisam’

6. Supra 103, 104, infra 112

7-8. ‘ponetse . . . querela,’ from 106, lines 1-2; supra 89