Bracton: Thorne Edition: English. Volume 3, Page 220

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 220

Next

Go to Volume: Page:

[001] during his minority; nor will the assise remain if a fine and chirograph made in the
[002] court of the lord king [is produced], since a minor under age ought to answer to any
[003] fine. If the charter of an ancestor is produced against one of full age by one of age or
[004] a minor, and it is denied, let it be proved, as was said above. If it is admitted but
[005] alleged to be empty by reason of a subsequent presentation, which is denied by the
[006] other party, with the consent of the parties let the assise proceed in the manner of a
[007] jury, charged under these words, ‘whether the donor who brings the assise presented
[008] to the same church after he had made that charter and gift to the aforesaid, such a
[009] one, or whether, as that same person claims, he did not.’¹ One may answer to the
[010] assise by saying that it ought not to proceed because he who brings it (or one of his
[011] ancestors) gave and aliened the tenement by reason of which he presents to such a
[012] one, with all its appurtenances [and] without any reservation, by some method of
[013] alienation, [or] sold it to him who now² presents, or to one of his ancestors, whether
[014] he was in possession of the presentation or not, without any reservation or exception,
[015] or demised it for a term of life or of years.³ That may sometimes be established by
[016] charters and instruments, if they are produced in court, [in that case, let the assise
[017] proceed if [no] dispute is raised as to their genuineness and validity; if they are
[018] accused of falsity [let them be proved by the witnesses named in the charter],⁴ or if
[019] the parties agree the matter may be determined by the assise taken in the manner of
[020] a jury.] Note that charters and documents must be produced before judgment; if
[021] afterwards they can have no place, because a judgment once given must not be
[022] withdrawn on the pretext of documents afterwards discovered and produced.⁵ It
[023] may also be excepted against the assise that he who brings it holds no part of the
[024] tenement to which the advowson is appurtenant, because he lost it by judgment, or
[025] by disseisin or in some other way, and [that] though he has right in the tenement and
[026] its appurtenances he ought first to recover the tenement to which the advowson is
[027] appurtenant and then first present, not before.⁶ On this there is matter in the roll of
[028] Michaelmas term in the third and the beginning of the fourth years of king Henry in
[029] the county of Norfolk, [the case] of Thomas Bardolf.⁷ There the objection was made
[030] against the presentor that he had no land in the vill where the church was situated.
[031] The answer made acknowledged that he who brought the assise had no land in that
[032] vill but alleged that his ancestors had and that they had been disseised, whereupon
[033] the assise fell, because the advowson was one of the appurtenances, though this
[034] would not be so if the contrary could be shown.⁸ If one has once retained his presentation
[035] by

Notes

1. Supra 218; cf. infra 226, 230

2. ‘modo,’ as Fleta, v, ca. 15, or ‘nunc’

3. Infra 230

4. Infra 226

5. C. 2.4.19: ‘Sub praetextu instrumenti post reperti transactionem bona fide finitam rescindi iura non patiuntur’; 7.52.4; Tancred, 276

6. Supra ii, 165, infra 239, 240

7. B.N.B., no. 49; C.R.R., viii, 50

8. Supra ii, 164, 165