Bracton: Thorne Edition: English. Volume 3, Page 86

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Volume 3, Page 86

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[001] lord against one who is outside his potestas, having recently fled, the exception will be
[002] good against him as long as the lord could reclaim him without writ, as long as he need
[003] not resort to the aid of anyone other than himself. If he has no means of recovering his
[004] villein except by writ, the exception will not be good, regardless of the kind of fugitive
[005] he is, or in what way he is beyond his potestas, or at what time he fled, nor will it be
[006] good until the fugitive has come into his possession,¹ since the lord has ceased to
[007] possess through weakness or negligence and has lost both natural possession and civil,
[008] the exception being raised, so to speak, at the wrong time and place. Restitution by
[009] the assise lies for the villein and the lord will never be heard excepting until the
[010] villein, who may have a perpetual exception by which he may protect himself in his
[011] free status² [forever], has come into his potestas, until whether he is free or bond has
[012] been discussed, and the lord has or has not failed in his proof. When he has recalled
[013] him to servitude in an action on status by a writ de nativis,³ villeinage being proved,
[014] he will be restored to his lord with all his sequela and all his lands and chattels.⁴ But
[015] why may not his lord eject him from his acquired tenements and take his chattels
[016] without judgment when the villein is outside his possession, before he has deraigned
[017] his body? It is evident that if that were so it would be unjust, not only because one
[018] cannot have the appurtenances before he has that to which they belong, as may be
[019] seen by an example taken from the advowsons of churches, for if a manor with the
[020] advowson belongs to a person who is out of possession and the church falls vacant, if
[021] he presents because of the right of presentation, which will belong to him with the
[022] manor, his presentation will be invalid before he has deraigned the manor to which
[023] the presentation belongs.⁵ As is commonly said ‘You must catch your buck before
[024] you skin him.’ [Also] one may not take lands or chattels from a fugitive or a villein
[025] outside his potestas and in a free status without his body because of the words in the
[026] writ de nativis, where the lord king orders the sheriff ‘to cause him to have his fugitive
[027] villein with all his sequela and with his chattels,’ whence it appears that he cannot
[028] take his chattels without judgment, for if he could the words ‘with his chattels’
[029] wrongly placed in the writ, would serve no purpose.⁶ The reason may also be this, that
[030] if any question of status were raised between the lord and the villein, the exception of
[031] spoliation would always bar the lord claiming him as his villein until the villein had
[032] been fully restored.⁷ For what right may the lord claim in the chattels or tenements,
[033] as in the accessory,

Notes

1. ‘possessionem,’ as infra and 87, 102

2. ‘qui forte habet . . . perpetuam qua forte se tueri . . . libero’

3. Infra 102

4. Infra 102, 104

5. Supra ii, 165

6. Supra ii, 89

7. Infra 88, 104, 105