Bracton: Thorne Edition: English. Volume 3, Page 216

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Volume 3, Page 216

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[001] vacant. But if a payment is made out of it for the sake of peace, or by way of a simple
[002] benefice, and he who receives it dies, because of that neither the parsonage nor the
[003] church is vacant. The same may be said of a vicar, for¹ if he dies the whole accrues to
[004] the parson, because the vicarage ought to be merged with the parsonage.² I say this
[005] unless³ the benefice has been charged by the ordinaries with the reasonable support
[006] of a vicar. Also whether the whole church is vacant or [only] some part, as where
[007] the assise is brought for the whole church and only a half or a third part or a quarter
[008] of it is vacant. If there is a dispute as to vacancy, whether it is vacant or not, the
[009] ordinary, the bishop or another who has cognisance of the matter, must be consulted,
[010] for a layman can no more have cognisance of that than of whether a marriage has
[011] been contracted or dissolved. And that cognisance belongs to the bishop may be
[012] seen [in the roll] of Trinity term in the fourth year of king Henry in the county of
[013] Worcester, concerning the church of Elderfield, the case of Robert of Berkeley.⁴
[014] [Sometimes it is not to the plaintiff's⁵ advantage, because the church has perhaps
[015] been encumbered by the bishop or archdeacon or other ordinary, or perhaps the
[016] bishop has admitted⁶ a clerk on the presentation of one who has no right to the presentation,
[017] to the prejudice of the true patron, in which cases it is unprofitable to send
[018] the question to the bishops because they may easily fail to return the truth, in order
[019] to save their own act.⁷ It seems better, therefore, if there is doubt as to whether a
[020] church is vacant or not, that the assise proceed (in view of the doubt) and that the
[021] bishop be ordered to admit; if he does not, let him be summoned to appear and show
[022] why not, whereupon the matter may be brought to the point of removing the encumbrance
[023] imposed by the bishop or other ordinary. He is then obliged to free the
[024] church or to give another of equal value to the presentee, in order to satisfy the
[025] presentee. He ought also to compel the clerk admitted by him to attorn to the true
[026] patron in order to satisfy the patron. And note that a church may be vacant de jure
[027] and not de facto, as was said, and both de jure and de facto, thus properly vacant. If it
[028] is vacant de jure and de facto, let the assise be taken at once. If de jure but (since it
[029] is encumbered) not de facto, the assise may be taken with impunity, that enquiry
[030] may be made as to the encumbrance, and let the plaintiff proceed in this way against
[031] him who encumbered in order to remove the encumbrance, as where the bishop has
[032] instituted a clerk before the lapse of six months, or on the presentation of one who
[033] had no right to present. If a clerk intrudes himself on his own authority,

Notes

1. ‘quia’

2. Supra 215; om: ‘proprietate sive,’ abbreviation expanded alternatively

3. ‘nisi’; Britton, ii, 180 n.

4. B.N.B., no. 1428; C.R.R., ix, 123; the words ‘Quis advocatus’ are above this entry

5. ‘querentem’ for ‘quidem’

6. ‘admiserit,’ as Fleta, v, ca. 14

7. B.N.B., no. 304