Page images
PDF
EPUB

which is an hindrance or obstruction of a patron to present his clerk to a benefice.

This injury was distinguished at common law from another species of injury, called ufurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon admitted and instituted b. 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 absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz. a writ of right of advorfon. The reason given for his losing the present turn, and not ejecting the usurper's clerk, was, that the final in:ent of the law in creating this species of property being to have a fit person to celebrate divine service, 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 also loit the inheritance of his advowson, unless he recovered it in a writ of right, because by such usurpation he was put out of poseffion of his advowson, as much as when by actual entry and oufter he is diffeised of lands or houses; since the only pol, feslion, of which an advowson is capable, is by actual pres sentation and admission of one's clerk. As therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted") the church became absolutely full; so the usurper by such plenarty, arising from his own presentation, became in fact jeiled of the advowson : which seisin it was impossible for the true patron to remove by any pofleffory action, or other means, during the plenariy or fullness of the church ; and when it became void afresh, he could not then present, fince another had the right of porseslion. The only remedy therefore, which the patron had left, was to try the mere right in a writ of right of advcwfon ; which is a peculiar writ of right, framed for this special pur.

o Co. Litt. 277 66 Res. 49.

pore,

pose, but in every other respect corresponding with other writs of right: and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance'. But in order to such recovery he must allege a presentation in himself or some of his ancestors : which proves him or them to have been once in possession :

for, as a grant of the advowson, during the fullness of the [ 244 ) church, conveys no manner of pofiellion for the present,

therefore a purchafor, until he hath presented, hath no actual seisin whereon to ground a writ of rights. Thus stood the common law.

But bishops, in antient times, either by carelessness or collufion, frequently inflituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of poíTellion, it was in subitance enailed by statute Westm. 2. 13 Edw. I. c. 5. jj 2. that if a poilellury action be brought within fix months after the avoidance, the patron shail (notwithstanding such ufurpation and institution) recover that very presentation ; which gives back to him the seifin of the advowson. Yet itill, if the true patron omitted to bring his action within fix months, the leisin was gained by the usurper, and the patron to recover it was driven to the long and hazardous process of a writ of right. To remedy which it was farther enacted by statute 7 Ann. c. 18. that no usurpation thali displace the estate or intereit of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such ufurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation : that is a stranger usurps my presentation, and I do not pursue my right within fix months, I shall lose 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 shall lose thereby. Usurpation now gains no right to the usurper, with regard to any future avoidance, but only to the present vacancy: it • F. N. B. 30. . Joid. 36. 6 2 Int. 357. :

cannot

cannot indeed be remedied after six months are past; but, during those fix months, it is only a species of disturbance,

DISTURBERS of a right of advowson may therefore be these three persons ; the pseudo-patron, his clerk, and the ordinary: the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or disputable; the clerk, by demanding or obtaining institution, which tends to and promotes the same inconvenience ; and [ 245 1 the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. These disturbances are vexa tious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law (besides the writ of right of adrowfon, which is a final and conclusive remedy) hath given him two inferior pofleflory actions for his relief; an allife of durrein presentment, and a writ of quare impedit ; in which the patron is always the plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee; and not to the clerk, who hath no right in him till institution, and of course can suffer no injury.

1. An assise of darrein presentment, or last presentation, lies when a man, or bis ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted; and afterwards upon the next avoidance a stranger presents a clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writh directed to the sheriff to summon an allife or jury, to inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the alile determines that question, a writ Dall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2. 13 Edw. I. c. 5. This question, it is to be observed, was, before the statute

HF. N. B. 31

7 Ann.

7 Ann. before-mentioned, entirely conclusive, as between the patron or his heirs and a stranger : for, till then, the full possession of the advowson was in him who presented last and his heirs : unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a title superior to all others. But that statute having given a right to any

persoil to bring a quare impedit, and to recover (if his title be [ 246 ] good) notwithstanding the last presentation, by whomsoever

made; assises of darrein presentment, now not being in any wise conclusive, have beeen totally difused, as indeed they began to be before ; a quare impedit being a more general, and therefore a more usual action. For the allise of darrein presentment lies only where a man has an advowson by descent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchase'.

2. I PROCEED therefore, secondly, to inquire into the nature k of a writ of quare impedit, now the only action used in case of the disturbance of patronage: and shall first premise the usual proceedings previous to the bringing of the writ.

Upon the vacancy' of a living the patron, we know, is bound to present within fis calendar months', otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is boupd to admit and institute the clerk, if found sufficient"; unless the church be full, or there be notice of any litigation. For if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of his antagonist's clerk. An institution after a caveat entered is void by the ecclesiasti. cal 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 bishop upon the same avoidance, iz Inft. 355,

m See book. I. ch. 11.
k See Bosweil's case. 6 Rep. 48. 111 Burn. 207.
Sce book ll. cl. 18.

o i Roll. Rep. 1916

the

the church is then said to become litigious ; änd; if nothing farther be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either side request him to award a jus patronatus,. he is bound to do it. A jus patronatus is a commission from the bishop, directed usually to his chancellor and others of com petent learning: who are to summon a jury of fix clergymen and fix laymen, to inquire into and examine who is the rightful patron P; and if, upon such inquiry made and certi- ( 247 ) ficate thereof returned by the commissioners, 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 refused by the bishop may also have a remedy against him in the spiritual court, denominated a duplex querela?; which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the delegates : and if the superior court adjudges the cause of refusal to be, insufficient, 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 so far: for, upon the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare impedit against the bishop, for the temporal injury done to his pro- , perty, in disturbing him in his presentation. 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 presentation set up, then the pretended patron and his clerk are also 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 most adviseable to bring it against all three: for if the bishop be left out, and Pe Burn. 16, 17.

9 Ibid. 113. . VOL. III.

the

« PreviousContinue »