Bracton: Thorne Edition: English. Volume 2, Page 161

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 161

Next

Go to Volume: Page:

[001] he transmits that right and use to his heirs and assigns¹ which, without use, he
[002] could do before, and thenceforward he can transfer that right to strangers, with
[003] use and seisin, which he could not do before, without use.² And let what was said
[004] of the right of pasturing apply as well to rights of way, of driving cattle, of conducting
[005] water, and to all other servitudes, which are infinite; it does not matter.³

How [one ought to use] a right to present and how seisin is transferred.

[007] It remains to explain how a right of advowson may be transferred and the conditions
[008] necessary for such transfer. [If] he who gives an advowson is in seisin of the
[009] presentation, [It is necessary that he shall have last presented one who was admitted
[010] and instituted (or at least given custody) on his presentation, for by such action
[011] he is recognized as patron. Or [if he did not present last] that his ancestors presented,
[012] directly, or someone did so in their name, or in his own name as guardian
[013] or termor. ⁴Or at least that he who gives has recovered his presentation from
[014] another on the seisin of an ancestor.]⁵ he may transfer the right of advowson to
[015] another, but not by will and intention alone, like a servitude, [according to some,]⁶
[016] since the right of advowson is incorporeal, [and] what cannot be seen or touched must
[017] of necessity be transferred with the corporeal thing to which it belongs, because
[018] without a corporeal thing it cannot rightly be possessed, though some say that it may
[019] be quasi-possessed in the same way as a servitude.⁷ And that an advowson, which
[020] is incorporeal, cannot be transferred without a corporeal thing and a tenement is
[021] proved [in the roll] of Hilary term in the ninth year of king Henry in the county of
[022] Norfolk, [a case] between the abbot of Missenden and Hubert de Burgh concerning
[023] the church of Owelton,⁸ where the same abbot produced the charter of one Walter
[024] de la Penne, which bore witness that the said Walter had given him the advowson
[025] of that church. But because it was afterwards proved that the same Walter held no
[026] tenement in the manor in which the church was situated, nor had the same Walter
[027] or anyone for him⁹ ever presented to that church, it was held that the abbot take
[028] nothing. To the same intent [in the roll] of Hilary term in the sixth year of king
[029] Henry in the county of Stafford, [the case] of Ranulf, earl of Chester and the prior
[030] of Kenilworth, concerning the church of Stoke,¹⁰ where it is said that since neither
[031] he who gave the advowson to the prior nor any of his ancestors had ever had
[032] seisin of the presentation, nor held any tenement in that vill, that the gift was
[033] void. To the same intent [in the roll] of Easter term in the ninth year of king
[034] Henry in the county of Cornwall,

Notes

1. Supra 159, infra 162, 177

2. Supra 159, infra iii, 166, 173, iv, 319

3. Incomplete

4-5. ‘vel saltem ... seisina antecessoris,’ from lines 12-13

6. Infra 164

7. Ibid., iv, 151, 184, 185

8. B.N.B., no. 1064; C.R.R., xii, no. 372; infra iii, 228

9. ‘nec idem Walterus nec aliquis pro eo’; infra iii, 228

10. B.N.B., no. 199 (Trinity term); C.R.R., x, 293 (Trinity); Hist. Coll. Staffs, iv, 23, 25; infra iii, 228