which is an hindrance or obstruction of a patron to prefent his clerk to a benefice. THIS injury was distinguished at common law from another fpecies of injury, called ufurpation; which is an abfolute oufter or difpoffeffion of the patron, and happens when a stranger, that hath no right, prefenteth a clerk, and he is thereupon admitted and inftituted. In which cafe, of ufurpation, the [243] patron loft by the common law not only his turn of presenting pro hac vice, but also the abfolute and perpetual inheritance of the advowfon, fo that he could not prefent again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz. a writ of right of advowfon. The reafon given for his lofing the prefent turn, and not ejecting the ufurper's clerk, was, that the final intent of the law in creating this fpecies of property being to have a fit person to celebrate divine fervice, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever. And the patron alfo loft the inheritance of his advowfon, unless he recovered it in a writ of right, because by such ufurpation he was put out of possesfion of his advowfon, as much as when by actual entry and oufter he is diffeifed of lands or houfes; fince the only pof feffion, of which an advowfon is capable, is by actual prefentation and admiffion of one's clerk. As therefore, when the clerk was once inftituted (except in the cafe of the king, where he muft alfo be inducted") the church became abfolutely full; fo the ufurper by fuch plenarty, arifing from his own presentation, became in fact feifed of the advowson : which feifin it was impoffible for the true patron to remove by any poffeffory action, or other means, during the plenarty or fullness of the church; and when it became void afresh, he could not then prefent, fince another had the right of poffeffion. The only remedy therefore, which the patron had left, was to try the mere right in a writ of right of advowson ; which is a peculiar writ of right, framed for this special pur b Co. Litt. 277. d Ibid. . 6 Rep. 49. pofe, pose, but in every other refpect correfponding with other writs of right and if a man recovered therein, he regained the poffeffion of his advowson, and was entitled to present at the next avoidance'. But in order to fuch recovery he muft allege a prefentation in himself or fome of his ancestors: which proves him or them to have been once in poffeffion : for, as a grant of the advowfon, during the fullness of the [244] church, conveys no manner of poffeffion for the prefent, therefore a purchafor, until he hath prefented, hath no actual feifin whereon to ground a writ of right. Thus stood the common law. BUT bishops, in antient times, either by carele ffness or collufion, frequently inflituting clerks upon the prefentation of ufurpers, and thereby defrauding the real patrons of their right of poffeffion, it was in fubitance enacted by statute Weftm. 2. 13 Edw. I. c. 5. § 2. that if a poffeffory action be brought within fix months after the avoidance, the patron shall (notwithstanding fuch ufurpation and inftitution) recover that very prefentation; which gives back to him the feifin of the advowfon. Yet still, if the true patron omitted to bring his action within fix months, the feifin was gained by the ufurper, and the patron to recover it was driven to the long and hazardous procefs of a writ of right.. To remedy which it was farther enacted by ftatute 7 Ann. c. 18. that no ufurpation fhall difplace the eftate or intereft of the patron, or turn it to a mere right; but that the true patron may prefent upon the next avoidance, as if no fuch ufurpation had happened. So that the title of ufurpation is now much narrowed, and the law ftands upon this reasonable foundation: that if a ftranger ufurps my prefentation, and I do not purfue my right within fix months, I fhall lofe that turn without remedy, for the peace of the church, and as a punishment for my own negligence; but that turn is the only one I fhall lofe thereby. Ufurpation now gains no right to the ufurper, with regard to any future avoidance, but only to the prefent vacancy: it e F. N. B. 30 f Ibid. 36. & 2 Int. 357. cannot cannot indeed be remedied after fix months are past; but, during thofe fix months, it is only a fpecies of difturbance. DISTURBERS of a right of advow fon may therefore be thefe three perfons; the pfeudo-patron, his clerk, and the ordinary: the pretended patron, by prefenting to a church to which he has no right, and thereby making it litigious or difputable; the clerk, by demanding or obtaining inftitution, which tends to and promotes the fame inconvenience; and [245] the ordinary, by refufing to admit the real patron's clerk, or admitting the clerk of the pretender. Thefe difturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law (befides the writ of right of advowson, which is a final and conclufive remedy) hath given him two inferior pofleflory actions for his relief; an allife of durrein prefentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law fuppofes the injury to be offered to him only, by obftructing or refufing the admiffion of his nominee; and not to the clerk, who hath no right in him till inftitution, and of course can fuffer no injury. 1. An affife of darrein prefentment, or laft prefentation, lies when a man, or his ancestors, under whom he claims, have prefented a clerk to a benefice, who is inftituted; and afterwards upon the next avoidance a stranger prefents a clerk, and thereby disturbs him that is the real patron. In which cafe the patron fhall have this writ directed to the fheriff to fummon an affife or jury, to inquire who was the laft patron that prefented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the affife determines that question, a writ hall iffue to the bifhop; to inftitute the clerk of that patron, in whofe favour the determination is made, and alfo to give damages, in pursuance of ftatute Weftm. 2. 13 Edw. I. c. 5. This queftion, it is to be obferved, was, before the ftatute h F. N. B. 31. BOOK III. 7 Ann. before-mentioned, entirely conclufive, as between the patron or his heirs and a stranger: for, till then, the full poffeffion of the advowfon was in him who prefented laft and his heirs unlefs, fince that prefentation, the clerk had been evicted within fix months, or the rightful patron had recovered the advowson in a writ of right; which is a title fuperior to all others. But that statute having given a right to any perfon to bring a quare impedit, and to recover (if his title be [246] good) notwithstanding the last presentation, by whomsoever made; aflifes of darrein prefentment, now not being in any wife conclufive, have beeen totally difufed, as indeed they began to be before; a quare impedit being a more general, and therefore a more usual action. For the affife of darrein prefentment lies only where a man has an advowson by defcent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by defcent or by purchase. 2. I PROCEED therefore, fecondly, to inquire into the nature of a writ of quare impedit, now the only action ufed in cafe of the disturbance of patronage; and fhall first premise the ufual proceedings previous to the bringing of the writ. UPON the vacancy' of a living the patron, we know, is bound to prefent within fix calendar months', otherwise it will lapfe to the bishop. But if the prefentation be made within that time, the bishop is bound to admit and institute the clerk, if found fufficient"; unlefs the church be full, or there be notice of any litigation. For if any oppofition be intended, it is ufual for each party to enter a caveat with the bishop, to prevent his inftitution of his antagonist's clerk. An institution after a caveat entered is void by the ecclefiaftical law; but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity. But if two prefentations be offered to the bifhop upon the fame avoidance, i a Inst. 355. * See Bofwell's cafe. 6 Rep. 48. m See book. I. ch. 11. Burn. 207. 01 Roll. Rep. 191. the the church is then faid to become litigious; and, if nothing farther be done, the bishop may fufpend the admiffion of either, and suffer a lapfe to incur. Yet if the patron or clerk on either fide requeft him to award a jus patronatus, he is bound to do it. A jus patronatus is a commiffion from the bishop, directed ufually to his chancellor and others of competent learning: who are to fummon a jury of fix clergymen and fix laymen, to inquire into and examine who is the rightful patron; and if, upon fuch inquiry made and certi- [247] ficate thereof returned by the commiffioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber, whatever proceedings may be had afterwards in the temporal courts. THE clerk refufed by the bishop may also have a remedy against him in the fpiritual court, denominated a duplex querela: which is a complaint in the nature of an appeal from the ordinary to his next immediate fuperior; as from a bishop to the archbishop, or from an archbishop to the delegates : and if the fuperior court adjudges the cause of refusal to be infufficient, it will grant inftitution to the appellant. THUS far matters may go on in the mere ecclefiaftical course; but in contested presentations they feldom go fo far: for, upon the first delay or refufal of the bishop to admit his clerk, the patron ufually brings his writ of quare impedit against the bishop, for the temporal injury done to his property, in disturbing him in his prefentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another prefentation fet up, then the pretended patron and his clerk are alfo joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only. But it is moft adviseable to bring it against all three: for if the bishop be left out, and a Ibid. 113. PI Burn. 16, 17. VOL. III. T the |