Bracton: Thorne Edition: English. Volume 3, Page 84

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Volume 3, Page 84

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[001] we must then first see whether any exception arising out of the plaintiff's person lies
[002] for the tenant, as where he excepts against him that neither the plaint nor the assise
[003] lies for him, whether he is free or bond, male or female, of age or below, as where he
[004] holds not in his own name but in another's,¹ because the assise does not lie for such
[005] persons but for the owner. If he is a free man holding for a term or at will, or in villeinage,
[006] which he may well do without losing his freedom, the assise then falls completely
[007] in his person, unless by replicating he can show the contrary, that he holds in
[008] his own name, no matter in what way, even by disseisin or intrusion, provided [he has
[009] been so long in seisin that] he ought not to be disseised without judgment. If he is a
[010] bondsman and holds in villeinage, provided he is within the potestas of his lord, the
[011] assise will fall completely, since he holds in the name of another, unless by replicating
[012] he can show the contrary, either that he holds freely or is outside the potestas of his
[013] lords and in so free a status that he cannot be recalled to servitude without writ and
[014] judgment. This exception of villeinage does not lie for anyone except the true lord
[015] unless the exceptor proves both, that the plaintiff is a villein and holds in villeinage,²
[016] since it follows therefrom that the plaint or assise belongs not to the villein but to the
[017] true lord, and thus the assise falls, in his person but not in that of the lord. If the true
[018] lord puts the exception of villeinage forward against a villein within his potestas, it
[019] suffices if he proves that he is his villein, either by the production of kindred or by the
[020] assise, whereupon the question of status and the assise will be determined,³ unless he
[021] is a free man possessed in good faith who wishes to assert his freedom, for then that
[022] exception and the proof of it will not prejudice him,⁴ provided he can prove that he is
[023] free and thus pass from a servile status into freedom.⁵ But since a bondsman sometimes
[024] is within the potestas of his lord and in a servile status, in possession of his servitude,⁶
[025] sometimes outside his potestas in a free status, in possession of his freedom,⁷
[026] sometimes holds freely, sometimes in villeinage, when the question of status falls into
[027] the assise and is preliminary, we must see against whom the exception is raised and by
[028] whom.

[Against whom.]

[030] Against whom, that is, whether against one who is within the potestas of his lord
[031] (whether he is his own [villein] or another's possessed in good faith, or a free man
[032] under another's potestas in a servile status, no matter how that has come about,
[033] whether by force and wrongful detention or by the bond of marriage) [or outside it.
[034] If] outside it, we must see whether against one who is his fugitive, who recently fled⁸
[035] from his land and was immediately pursued,⁹ or one who has not recently fled, so that
[036] he cannot be recalled to servitude without writ, or one who has never been within his
[037] potestas but born of his villeins who once fled, from his land or that of his ancestors,¹⁰
[038] or against those who are in fact fugitives but

Notes

1. Supra 33

2. Infra 87, 101, 105, 112

3. Infra 105, 106, 111, 112

4. Infra 106

5. Infra 85

6. D. 40.12.1.pr.: ‘in possessione servitutis constitutus est’

7. C. 7.16.21: ‘in possessione libertatis’

8. ‘fugerit,’ as 86, line 1

9. Supra ii, 36

10. Om: ‘Item’