Bracton: Thorne Edition: English. Volume 3, Page 222

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Volume 3, Page 222

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[001] each part in this way, ‘with all its appurtenances,’ no mention made of the advowson;
[002] the advowson always remains with the part retained since it is not expressly transferred,
[003] as may be seen below [in the portion on] the law of dowers.¹ It may also be
[004] asked whether the assise of darrein presentment lies for a husband who holds by the
[005] law of England on the seisin which he and his wife had during the life of the wife, or
[006] whether it lies for the heirs and consequently for him in the name of the heirs. It
[007] seems that the writ quare impedit lies for him in his own name,² since he has never
[008] presented by himself, rather than the assise in the name of the heirs, for they may
[009] equally well be of full age as below age. If one holds land of his wife's inheritance by
[010] the law of England, she having had heirs by another husband, and, after he has once
[011] conferred the church by himself alone and is thus in possession of the right to present,
[012] he gives the advowson to some religious house, or creates a prebend or alienates it in
[013] some other way, and after his death the heir [arraigns] an assise of darrein presentment
[014] on the seisin of his ancestor,³ the assise falls if he admits the presentation made⁴
[015] and his stepfather's gift, because of his seisin, of some kind and to some degree; an
[016] action will have to be brought on the right and property.⁵ And the same may be
[017] said, so it seems, of all others who hold an advowson for a term of life after they have
[018] once presented in their own name. But it will be otherwise of one who presents as
[019] guardian, because he does so in the name of another.⁶ Suppose that one transfers a
[020] tenement with the advowson to another until provision be made for him, [who], before
[021] provision made, makes a gift of the advowson to a third person, who presents, and
[022] provision is then made; the gift and the advowson are recovered by a writ of entry,
[023] not by the assise, because a person holding in that way could not make a permanent
[024] gift.⁷ On this there is matter [in the roll of Easter term] in the seventh year of king
[025] Henry in the county of Bedford [that] of Fawkes de Breaut‰ and the prior of Newnham,
[026] an assise of darrein presentment concerning the church of Aspley Guise.⁸
[027] Suppose that one who has neither right nor title in an advowson presents while the
[028] true heir is under age and in the wardship of another, and that when he comes of age
[029] the church becomes vacant and both present and bring the assise; he who last presented
[030] will retain by the assise until the heir brings his action on the right, as [in
[031] the roll] of Hilary term in the ninth year of king Henry in the county of Lincoln,
[032] [the case] of the prior or Ormsby and Conan of Welton concerning the church of
[033] Welton.⁹ Suppose that one presents a clerk

Notes

1. Supra ii, 165, 278

2. Infra 229

3. Om: ‘quam parastri sui’

4. ‘factam’

5. Supra ii, 279, infra 226

6. Supra 212

7. Supra ii, 165-6

8. B.N.B., no. 1607; no roll extant; supra ii, 166

9. B.N.B., no. 1035; C.R.R., xii, no. 20