Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 393  Next    

Go to Volume:      Page:    




[001] defaulted and so lost, or lost in some other way; that will not prejudice the woman,
[002] if it is proved to be true, [On this there is matter [in the roll] of Michaelmas term in
[003] the third and the beginning of the fourth years of king Henry in the county of Surrey,
[004] [the case] of Margaret [the wife of Ralph] of Beleval.]1 because the deceit or negligence
[005] of the husband does not prejudice the wife, no more than if he restored it to
[006] the demandant by concord.2 If such demandant recovered against the husband but
[007] there was no examination of the right, whether her husband had the right or not,
[008] the woman may replicate against the tenant that it was not by judgment but by
[009] concord, in which case we must distinguish, because [A concord in the secular court
[010] is the same as a transactio. A transactio is [an agreement] with respect to a doubtful
[011] matter and a lawsuit of uncertain outcome, something being given or promised or
[012] retained to put an end to the suit.]3 4when the husband of a woman-demandant,
[013] by an amicable settlement,5 acknowledges that the thing claimed belongs to the
[014] demandant, it is important whether the thing sought is his own or the other's, that
[015] is, the other's right or his own, or if there is doubt as to whether it is his own or the
[016] other's. If it can be established that the thing is his own and the right his, and that
[017] fraudulently or in hatred of his wife, as said above, or for the sake of gain, he acknowledged
[018] it to be the right of the other, the woman will recover dower, despite such
[019] acknowledgment, no matter into whose hands the thing acknowledged has come.
[020] [But we must see whether it is done before marriage or after.]6 But if the thing is
[021] another's and the right another's, because,7 though the husband's ancestor died
[022] seised8 as of fee he entered by disseisin or intrusion, then9 he was not so seised as of
[023] fee that he could10 endow a wife and the wife would [not] recover dower against the
[024] owner, because the other had a greater right than her husband, and because, if the
[025] matter had proceeded to judgment, it is certain11 that the demandant would recover
[026] by judgment.12 [This is true of an owner. It is otherwise if it was acknowledged to
[027] another who had no right in the thing acknowledged.] But if, by the concord the
[028] husband retains something of the other's right, whether or not the husband retains
[029] or aliens it, the woman will have dower therefrom, no matter to whom the portion
[030] retained subsequently comes, as may be seen [in the case] between two brothers,
[031] whose father dies seised of the whole inheritance, into which the younger puts
[032] himself. [If] they afterwards enter into a concord [by which] the younger brother,
[033] the tenant, acknowledges that the whole inheritance is the right of the older brother,
[034] the demandant, and he, the older, then acknowledges and grants half of that land
[035] to the younger, to be held of him or another, [and] if the younger then dies, his wife
[036] will have dower from the half which was acknowledged and



Notes

1. C.R.R., viii, 24; not in B.N.B.

2. ‘non magis . . . concordiam,’ from lines 6-7

3. ‘de re dubia et lite incerta pactio, aliquo dato . . . a lite transigere’; D. 2.15.1; C. 2.4.38; Richardson, Bracton, 139

4. Om: ‘et unde,’ a connective

5. C. 1.2.22.1

6. Infra 394

7. ‘quia,’ from next line

8. ‘seisitus obierit’

9. ‘tunc’

10. ‘posset’

11. ‘certum est,’ infra 394

12. Om: ‘si iudicium procederet’


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College