Page images
PDF
EPUB

the suit be not determined till the six months are past, the bishop is entitled to present by lapse; for he is not party to the suit': but, if he be named, no lapse can possibly accrue till the right is determined. If the patron be left out, and the writ be brought only againit the bishop and the clerk, the fuit is of no effect, and the writ shall abate s; for the right

of the patron is the principal question in the cause!. If the ] clerk be left out, and has received institution before the action brought (as is sometimes the case) the patron by this fuit may recover his riglit of patronage, but not the present turn; for he cannot have judgment to remove the clerk, unless he be made a defendant, and party to the fuit, to hear what he can allege against it. For which reason it is the safer way to insert all three in the writ.

The writ of quare impedit' commands the disturbers, the bishop, the pseudo-patron, and his clerk, to permit the plaintif to present a proper person (without fpecifying the particular clerk) to such a vacant church, which pertains to his patronage ; and which the defendants, as he alleges, do obftru&t ; and unless they so do, then that they appear in court to fhew the reason why they hinder him.

IMMEDIATELY on the suing out of the quare impedit, if the plaintiff suspects that the bishop will admit the defend ant's or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittasw; which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk whatsoever till such contention be deterinined. And if the bishop doth, after the receipt of this writ, admit any person, even though the patron's right may have been found in a jure patronatus, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by writ of fcire facias*: and thall have a special action against the bishop, : Cro. Jac. 93.

UF. N. B. 32, » Hob. 316.

w Ibid. 37. ? ? Rep, 25.

X 2 Sid, 94.

called

called a quare incumbravit; to recover the presentation, and also satisfaction in damages for the injury done him by incumbering the church with a clerk, pending the suit, and after the ne admittas received y. But if the bishop has incumbered the church by instituting the clerk, before the ne admittas issueil, no quare incumbravit lies; for the bishop hath no legal notice, till the writ of ne admittas is served upon him. The patron is therefore left to his quare impedit inere- [ 249 ly; which, as was before observed, now lies (lince the statute of Westm. 2.) as well upon a recent usurpation within fix months past, as upon a disturbance without any usurpation had.

In the proceedings upon a quare impedit, the plaintiff must set out his title at length, and prove at least one presentation in himself, his ancestors, or those under whom he claims ; for he must recover by the strength of his own right, and not by the weakness of the defendant's ?: and he must also shew a disturbance before the action brought Upon this the bishop and the clerk usually disclaim all title: save only, the one as ordinary, to admit and institute ; and the other as presentee of the patron, who is left to defend his own right. And, upon failure of the plaintiff in making out his own title, the defendant is put upon the proof of his, in order to obtain judgment for himself, if needful. But if the right be found for the plaintiff, on the trial, three farther points are also to be inquired: 1. If the church be full; and, if full, then of whose presentation : for if it be of the defendant's presentation, then the clerk is removeable by writ brought in due time. 2. Of what value the living is : and this in order to affefs the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenarty upon an usurpation, whether fix calendar months have passed between the avoidance and the time of bringing the action: for then it would not be within the statute, which permits an usurpation to be devested by a quare impedit, brought infra

y F. N. B. 48. 2 Vaugha 7, 8.

» Hob. 199.

e lart. jode T2

tempus

tempus semestre. So that plenarty is still a sufficient bar in an action of quare impedit, brought above fix months after the vacancy happens ; as it was universally by the common law, however early the action was commenced.

If it be found that the plaintiff hath the right, and hath

commenced his action in due time, then he shall have judg( 250 ) ment to recover the prcsentation; and, if the church be full

by institution of any clerk, to remove him; unless it were filled pendente lite by lapse to the ordinary, he not being party to the suit; in which case the plaintiff loses his presentation pro hac vice, but Mall recover two years' full value of the church from the defendant the pretended patron, as a fatisfaction for the turn loft by his disturbance: or, in case of inSolvency, the defendant shall be imprisoned for two years. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum", reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party; and, if upon this order he does not admit him, the patron may sue the bishop in a writ of quare non admifit®, and recover ample fatisfaction in damages.

Besides these poffeffory actions, there may be also had (as hath before been incidentally mentioned) a writ of right of advowfun, which resembles other writs of right : the only distinguishing advantage now aitending it, being, that it is more conclusive than a quare impedit; since to an action of quare impedit a recovery had in a writ of right may be pleaded in bar.

There is no limitation with regard to the time within which any actions touching advowsons are to be brought; at least none later than the times of Richard I and Henry III : for by itatute i Mar. st. 2. c. 5. the statute of limitations, 132 Hen. VIII. C. 2. is declared not to extend to any writ of 2 Shat. Weitm. a. 13 Edw. I. c. 5. $ 3. lbid. 47. 3. V. B. 33.

right of advowson, quare impedit, or affise of darrein presentment, or jus patronatus. And this upon very good reason ; because it may very easily happen that the title to an advowson may not come in question, nor the right have opportunity to be tried, within sixty years; which is the longest period of limitation alligned by the statute of Henry VIII. For fir Edward Coke tells us, that there was a parson of one of his ::: churches, that had been incumbent there above fifty years; [ 251 ] nor are instances wanting wherein two successive incumbents have continued for upwards of a hundred years b. Had therefore the last of these incumbents been the clerk of a usurper, or had been presented by lapse, it would have been necessary and unavoidable for the patron, in case of a dispute, to have recurred back above a century; in order to have shewn a clear title and feilin by presentation and admillion of the prior incumbent. But though, for these reasons, a limitation is highly improper with respect only to the length of time; yet, as the title of advowsons is, for want of some limitation rendered more precarious than that of any other hereditament, (especially since the statute of queen Anne hath allowed porfeffory actions to be brought upon any prior presentation, however distant) it might not perhaps be amiss if a limitation were established with respect to the number of avoidances; or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for instance, if no seisin were admitted to be alleged in any of these writs of patronage, after sixty years and three avoidances were past.

In a writ of quare.impedit, which is almost the only real action that remains in common use, and also in the assise of darrein presentment, and writ of right, the patron only, and not the clerk, is allowed to sue the disturber. But, by virtue of several acts of parliament", there is one species of presentations, in which a remedy, to be sued in the temporai fi Inft. 115.

the latter in 1700, and died in 1751. & Two successive incumbents of the Do Stat. 3 Jac. I. c. 5. 1 W. & M. rectory of Chelsfield cum Farnborough c. 26. 12 Ann. A, 2. c. 14. Is Geo. in Kent, continued 10 years; of II. c. 170 wbom the former was admitted in 1950,

T3

courts,

courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation to such benefices as belong to Roman catholic patrons; which, according to their several counties, are vested in and secured to the two universities of this kingdom. And particularly

by the statute of 12 Ann. ft 2. . 14. § 4. a new method of [ 252 ) proceeding is provided; viz. that, besides the writs of quare

impedit, which the universities as patrons are entitled to bring, they, or their clerks, may be at liberty to file a bill in equity against any person presenting to such livings, and

disturbing their right of patronage, or his cestuy que truft, or · any other person whom they have cause to suspect; in order

to compel a discovery of any secret trusts, for the benefit of papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies ; and also (by the statute 11 Geo. II. c. 17.) to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bona fide to a protestant purchasor, for the benefit of protestants, and for a full considerations without which requisites everysuch grant and conveyance of any advowson or avoidance is absolutely null and void. This is a particular law, and calculated for a particular purpose: but in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation, of which he is afterwards to have the advantage. For besides that he has (as was before observed) no temporal right in him till after institution and induction; and as he therefore can suffer no wrong, is consequently entitled to no remedy; this exclusion of the clerk from being plaintiff seems also to arise from the very great honour and regard which the law pays to his sacred function, For it looks upon the cure of souls as too arduous and important a talk to be eagerly sought for by any rețious clergyman ; and therefore will not permit hin to contend openly at law for a charge and trust, which it prefumes he undertakes with diffidence.

But when the clerk is in full poffeffion of the benefice, the law gives him the same possessory remedies to recover his glebę, his repts, his tithes, and other ecclesiastical dues,

« PreviousContinue »