Bracton: Thorne Edition: English. Volume 3, Page 329

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 329

Next

Go to Volume: Page:

THE ASSISE UTRUM

The assise for recognizing whether a tenement is free alms.

[003] Among the other assises there is one which has much of possession and of right because
[004] it determines both, that is, possession and right, nor is any further inquiry
[005] made as to the right after it, whether it finds for the demandant or the tenant,
[006] though sometimes, if the jurors have sworn a false oath, they may be sued for perjury
[007] [in an action] of conviction.¹<[No further inquiry as to the right is made] as between
[008] those between whom the assise is taken, but it does not determine the right of others
[009] who have a greater right, because action may be taken again with respect to the mere
[010] right, though action was taken earlier on the pretended right, as before the king at
[011] Woodstock [in the case] of the rector of the church of the blessed Mary at Oxford,
[012] the successor of William Hardel,² as will be explained below and the case put.>³
[013] This assise recognizes whether the tenement in question is the lay fee of the tenant
[014] or free alms belonging to the church of some rector, [whether the demandant is a
[015] layman or a clerk, because it ought to lie for either, as was first held in the time of
[016] Martin of Pateshull and afterward denied by him, that it would not lie except in the
[017] person of the rector, for whom no other remedy or writ lay if he could not sue on his
[018] own seisin, though for a layman all other remedies might lie, the writ of novel disseisin,
[019] mortdancestor, entry and right. But since suits are to be curbed rather than
[020] encouraged,⁴ [and] in order that duels and grand assises may be avoided and the plea
[021] more quickly determined, the rule today is that this writ and assise lies for either,
[022] layman or rector, as was formerly the practice, as in the eyre of the abbot of Reading
[023] and Martin of Pateshull in the county of Worcester, an assise [beginning] ‘whether
[024] one messuage.’⁵ And that it did not lie afterwards except for the rector may be found
[025] in the last eyre of Martin of Pateshull in the twelfth year of king Henry in the county
[026] of Suffolk, [the case] of Robert de Kedington and William de Valle,⁶ where Robert
[027] acknowledged that he was never in seisin of the land claimed.] We must first see
[028] for what rectors and of what churches, [and for what tenements and what free alms
[029] the assise lies,] because some churches are cathedral churches, as those of bishops,
[030] some conventual, as those of abbots and

Notes

1. Supra i, 407

2. Not in B.N.B.; coram rege roll 93, m. 32 (Mich. 1253); Br's second appointment to the court coram rege was in July, 1253

3. Not in treatise

4. Drogheda, 127

5. Selden Soc. vol. 53; no. 976; not in B.N.B.; P. and M., i, 250

6. B.N.B., no. 1923 (margin): ‘Nota quod assisa utrum non iacet in persona laici, set tantum in persona persone, set breve de recto.’