Definition
An assise of utrum was a form of real action in old English common law by which a clergyman — originally a parson or prebendary, later extended to vicars by statute — could recover lands or tenements belonging to his church that had been wrongfully lost. The name derives from the Latin utrum, meaning "whether," referring to the jury's task: to determine whether the land in question was held in free alms (frankalmoin) by the church, or as a lay fee. Also called a writ of juris utrum, the action lay in three principal circumstances: (1) where a predecessor had alienated church lands without authority; (2) where the clergyman had been disseised of the land; or (3) where the land had been recovered against him by verdict, confession, or default, without the incumbent having prayed in aid of the patron or ordinary — a procedural protection he was entitled to invoke before judgment passed against church property.
The action belonged to the category of petty assises and occupied a peculiar jurisdictional position, sitting at the boundary between common law courts and ecclesiastical courts. It was, in effect, the clergyman's legal remedy for recovering what belonged to the church when the ordinary ecclesiastical channels were insufficient.
Why It Matters in Research
Researchers encountering this term in medieval and early modern English legal records should note several navigational points.
First, the action is closely tied to the doctrine of frankalmoin and the broader medieval contest between royal and ecclesiastical jurisdiction over land. The assise of utrum was one of the primary mechanisms by which the common law courts asserted jurisdiction over disputes touching church land — a jurisdiction the ecclesiastical courts contested. Sources discussing the assise cannot be read in isolation from this jurisdictional struggle, which shaped both the scope and the limits of the action.
Second, the statutory extension to vicars (14 Edw. III, c. 17) marks an important chronological boundary. Before that statute, only parsons and prebendaries could bring the action at common law. Researchers working with pre-1340 sources will find vicars excluded. Post-statute sources may treat the action as uniformly available to all three, sometimes without flagging the prior limitation.
Third, the phrase "without praying in aid" in the third category is a term of art that deserves attention. Praying in aid was a procedural device allowing a tenant to call in a third party — here, the patron or ordinary — to assist in defending the title. A default judgment obtained against a clergyman who had not been given the opportunity to pray in aid was considered improper and could be challenged through this assise. Researchers unfamiliar with this procedural context may misread historical pleadings.
Fourth, the term juris utrum appears as an alternate name in many sources. Burrill uses both. Bracton and Glanvill use juris utrum. Researchers should search both forms when working in Latin records or early law French materials, as indexing is inconsistent across manuscript and printed sources.
Fifth, this action is essentially obsolete and appears only in historical legal records and treatises. It has no modern procedural counterpart. Researchers will encounter it almost exclusively in medieval plea rolls, year books, and the foundational common law treatises — Glanvill, Bracton, Littleton, and their commentators.
Historical Dictionary Support
Burrill's entry, though truncated in the available text, captures the essential structure: the classes of claimants, the statutory extension, and the three triggering circumstances. It correctly identifies the action as belonging to old English practice and places it within the assise framework.
What Burrill's entry does not fully address — and what researchers should seek elsewhere — is the theoretical foundation of the action. Bracton's treatment of the juris utrum in De Legibus et Consuetudinibus Angliae is the most developed historical exposition. Bracton situates the action within the larger question of how land comes to be held in frankalmoin and what remedies the law provides when that tenure is disrupted. Glanvill's earlier treatment is briefer but establishes the action's antiquity and its jury-based character.
Coke's commentary in the Institutes also engages with the assise of utrum, though by his era the action was largely theoretical. Coke traces its common law pedigree and its relationship to the broader system of real actions, which were already in decline by the seventeenth century.
There is general agreement across historical sources that the assise of utrum was a clergyman's action, not available to lay parties, and that it was directed at real property rather than personal claims. Historical sources diverge somewhat on procedural details — the precise role of the patron and ordinary, and how the action interacted with the ecclesiastical courts' competing claims — and researchers relying on a single source for procedural guidance should cross-check against Bracton.
Jurisdictional Note
The assise of utrum was a feature of English common law with no direct parallel in Scots law, Irish common law, or the civil law tradition. Researchers working in jurisdictions that received English common law after the period of the real actions (most colonial jurisdictions) will not find this action in any operative form. It is strictly a historical English legal institution.