Bracton: Thorne Edition: English. Volume 3, Page 215

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 215

Next

Go to Volume: Page:

[001] may be found in the eyre in the county of Kent in the thirty-second and the beginning
[002] of the thirty-third years of king Henry, in the quindene of Michaelmas, an
[003] assise of darrein presentment taken between William Bardolf and the heir of Milton
[004] concerning the church of Swyterlegh in the county of Norfolk.]¹ The writ also contains
[005] the words ‘the parson who is dead.’ It says ‘parson’ by way of distinction from
[006] ‘vicar,’ for an assise will not lie on the death of a vicar or with respect to a vicarage.
[007] Nor does it lie with respect to prebendal churches generally, [unless from the first
[008] there has been fraud in constituting the prebend, if it was made prebendal during
[009] the patron's absence abroad, or while he was under age or in wardship,] as may be
[010] found in the roll of the pleas which follow the king in the eighteenth year.² Nor will
[011] the assise lie for a chapel which by mere right is subject to and appurtenant to a
[012] mother church, unless the plaintiff claims that it is a mother church, or if the chapel
[013] enjoys some special privilege, as where it is a chapel of the lord king which is subject
[014] to no church and appurtenant to none, though a church may be appurtenant to such
[015] a chapel. A chapel may belong entirely to a mother church, as was said, or it may only
[016] be pensionary and pay a sum as a mark of subjection. For such a chapel no assise
[017] lies for the patron of the mother church against him who has the advowson of the
[018] chapel, but it lies for him against all, since there are different patrons, the patron of
[019] the church and the patron of the chapel. It will be otherwise if both have the one
[020] patron. Nor will the assise lie for a church or a chapel where there is none, though
[021] there once was one and it has now fallen down, though the place itself still remains
[022] sacred.³ The writ also says ‘who is dead,’ that is, either by natural death or civil:
[023] civil, as where he transfers himself to a religious order, or resigns or does what amounts
[024] to that, as where he marries a wife, or does some other act which makes it impossible
[025] for him to retain the church. The writ also says ‘to such a church which is vacant,
[026] as it is said.’ We therefore must see which church is vacant and which not, and⁴ if it
[027] is completely vacant or only the benefice is vacant, in which case the assise will
[028] proceed as if it were completely

Notes

1. Not in B.N.B.; foreign pleas of Kent eyre 1248, October sessions

2. B.N.B., no. 1117: ‘Concessum est eciam eodem die a Domino Rege et a supradictis omnibus quod assisa ultime presentacionis non capiatur de ecclesiis prebendatis nec de prebendis.’

3. Inst. 2.1.8; supra ii, 58

4. ‘et’