Bracton: Thorne Edition: English. Volume 3, Page 135

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Volume 3, Page 135

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[001] right. But once the second disseisor begins to have a quasi-[free] tenement, as was
[002] said above,¹ because of the negligence of the first disseisor, if he is ejected without
[003] judgment, whether by the true lord or the first disseisor, he will recover seisin despite
[004] the exception of free tenement. Thus it is evident from the foregoing that though the
[005] exception of free tenement may sometimes lie against a plaintiff, it is not everyone
[006] who may put it forward, no more than anyone may put forward the exception of
[007] bastardy or villeinage when they lie, as was said above.² And though a replication
[008] sometimes lies against an exception, it is not everyone who may put that forward,
[009] as may be seen where a husband has enfeoffed another of his wife's property, and
[010] after the husband's death the wife claims by writ of entry; if it is excepted against
[011] her that the gift was made by her and her husband, she may replicate that she could
[012] not gainsay her husband, and she will thus recover. But if after her death it is the heir
[013] out of seisin who claims by a similar writ of entry, it will not lie for him, because the
[014] replication which lay for his mother does not lie for him, as where he claims and the
[015] gift is excepted against him, he cannot replicate as his mother could if she were alive,
[016] because, in as much as it is [not] said in the writ ‘and whom my mother could not
[017] gainsay,’ it is evident that such replication lies³ for the mother, not the heir, [as may
[018] be seen below in the tractate on entries.]⁴

If the disseisee, after a long interval, usurps his own seisin on his own authority and without judgment.

[020] Let us see the penalty that falls upon those who, after allowing time to pass, usurp
[021] their own seisin by force and without judgment. [In an action of spoliation⁵ the intruder
[022] or disseisor must be restored, despite any exception of property. The exception
[023] of property by the true lord ought not to bar [him], as where he says, ‘I disseised you
[024] rightfully because it is my tenement and I am its lord, and you can have no free tenement
[025] because you have no entry except by intrusion or disseisin.’ That exception will
[026] not avail him [because] though he puts himself in seisin rightfully from the point of
[027] view of right, he does so wrongfully since without judgment, as was said above.⁶ For
[028] force must be dealt with before property.⁷ And so if villeinage is excepted, force must
[029] be dealt with before status, as where he raises the exception of villeinage [who] has
[030] no right in the body of the villein, as above more fully [in the portion] on the exception
[031] of villeinage.⁸ Reason also accords with this, as where ⁹it is objected against a named
[032] heir that the testament is a forgery or inofficious, or that the testator was a slave; the
[033] scriptus heres ought to be put in possession nonetheless,¹⁰ nor

Notes

1. Supra 54, 133

2. Supra 87

3. ‘competit’

4. Infra iv, 33

5. ‘In causa spolicationis,’ from precedingline

6. Supra 121, 133, 134

7. D.5.1.37; D.48.6.5.1; ‘ante cognoscendum de vi quam de proprietate rei’; 48.6.5.1: supra ii, 320

8. Supra 86

9-10. C. 6.33.2: ‘Quamvis quis se filium defuncti praeteritum esse adleget aut falsum vel inofficiosum testamentum seu alio vitio subiectum vel servus defunctus esse dicatur, tamen scriptus heres in possessionem mitti solet.’; Barton in Tulane L. Rev., xlii, 572