Bracton: Thorne Edition: English. Volume 3, Page 219

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Volume 3, Page 219

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[001] donor presents, the first donee does the same and so does the second donee. The
[002] presentation, however, does not belong to them all and the question, therefore, is
[003] which of them ought be preferred to the others. It is clear that it is not the first donee,
[004] because he never presented and never had seisin; nor could he transfer to another
[005] what he did not have. Therefore the gift is void as to the first and second donee. Thus
[006] the presentation remains of necessity with the donor, who always remained in possession
[007] of the right to present, since the donee transferred it to the other before
[008] presentation and before use, and the same may be said of several transferees, ad
[009] infinitum.¹ Suppose that the second donee wished to vouch a warrantor, the first
[010] donee; the voucher would be invalid since the second donee is not in possession, nor
[011] can one defend another in his possession unless he is in possession,² since to warrant
[012] is nothing other than to defend the possessor. Nor³ if he warrants de facto and vouches
[013] over the first donor, is he bound to warrant him, not only because he [the first donee]
[014] does not possess, but also because he cannot vouch over; nor can the second donee
[015] have again what he never had and could not have. But suppose that the first donor
[016] confirms to the second donee the gift made by the first donee; the gift is still not cured
[017] by the confirmation, since it is the gift of another, not that of him who confirms or
[018] an ancestor of his, and because the gift is void, neither begun nor completed. If both
[019] present, he who confirms and he to whom the confirmation was made, he who confirms
[020] will prevail by the assise. But if the second donee presents de facto and, when he
[021] is thus in seisin, transfers the advowson to another, who also presents, and thus is
[022] in seisin of the presentation, if the church then falls vacant and the first donor presents,
[023] as does the last donee, and each then arraigns an assise of darrein presentment,
[024] the last seisin must be preferred to the first. Nor is an assise afterwards to be taken
[025] upon an assise, but let the first donor, if he wishes, sue by writ of right on the property;
[026] as to the possession, he may blame himself for his negligence. [On this matter,
[027] see above [in the portion on] gifts.]⁴ When a charter is produced against the assise,
[028] as was said above, if it is completely denied it must be proved by the witnesses named
[029] in it and the assise taken in the manner of a jury, unless he against whom it is proffered
[030] is within age and unable to answer to it before he reaches full age. The assise
[031] must then of necessity be deferred until his full age, but by counsel of the court let
[032] provision be made, as was said above, retaining a payment as a precaution.⁵ If no
[033] charter is produced against the minor, let the assise proceed⁶

Notes

1. Supra ii, 162, infra 227-8

2. Supra ii, 163

3. ‘Nec’

4. Supra ii, 162

5. Supra 214, infra 237

6. ‘procedat’