the fuit be not determined till the fix months are paft, the bishop is entitled to prefent by lapfe; for he is not party to the fuit: but, if he be named, no lapfe can possibly accrue till the right is determined. If the patron be left out, and the writ be brought only against the bishop and the clerk, the fuit is of no effect, and the writ fhall abate; for the right of the patron is the principal queftion in the caufe. If the 248]clerk be left out, and has received inftitution before the action brought (as is fometimes the cafe) the patron by this fuit may recover his right of patronage, but not the prefent 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 reafon it is the fafer way to infert all three in the writ. THE writ of quare impedit commands the disturbers, the bishop, the pfeudo-patron, and his clerk, to permit the plaintiff to present a proper person (without fpecifying the particular clerk) to fuch a vacant church, which pertains to his patronage; and which the defendants, as he alleges, do obftru&; and unless they so do, then that they appear in court to fhew the reafon why they hinder him. IMMEDIATELY on the faing out of the quare impedit, if the plaintiff fufpects that the bishop will admit the defendant's or any other clerk, pending the fuit, he may have a prohibitory writ, called a ne admittas"; which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk whatsoever till fuch contention be determined. And if the bifhop doth, after the receipt of this writ, admit any perfon, 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 feire facias: and shall have a special action against the bishop, Cro. Jac. 93. ⚫ Hob. 316. 1g Rep. 25. u F. N. B. 32. w Ibid. 37 * 2 Sid. 94. called called a quare incumbravit; to recover the prefentation, and also fatisfaction in damages for the injury done him by incumbering the church with a clerk, pending the suit, and after the ne admittas received. But if the bishop has incumbered the church by inftituting the clerk, before the ne admittas iffued, 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 mere- [249] ly; which, as was before obferved, now lies (fince the statute of Westm. 2.) as well upon a recent ufurpation within fix months past, as upon a difturbance without any ufurpation had. In the proceedings upon a quare impedit, the plaintif must set out his title at length, and prove at least one prefentation in himself, his ancestors, or thofe 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 muft alfo fhew a disturbance before the action brought. Upon this the bishop and the clerk ufually disclaim all title: fave only, the one as ordinary, to admit and inftitute; and the other as prefentee 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 alfo to be inquired: 1. If the church be full; and, if full, then of whofe 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 ftatute of Weftm. 2. 3. In cafe of plenarty upon an ufurpation, whether fix calendar months have paffed between the avoidance and the time of bringing the action: for then it would not be within the ftatute, which permits an ufurpation to be devefted by a quare impedit, brought infra y F. N. B. 48. z Vaugh, 7, 8. T2 a Hob. 199. tempus tempus femeftre. So that plenarty is ftill a fufficient bar in an action of quare impedit, brought above fix months after the vacancy happens; as it was univerfally 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 fhall have judg[250]ment to recover the prefentation; and, if the church be full by inftitution of any clerk, to remove him: unless it were filled pendente lite by lapfe to the ordinary, he not being party to the fuit; in which cafe the plaintiff lofes his prefentation pro hac vice, but fhall recover two years' full value of the church from the defendant the pretended patron, as a fatiffaction for the turn loft by his disturbance: or, in cafe of infolvency, the defendant fhall be imprisoned for two years. But if the church remains ftill void at the end of the fuit, then whichever party the prefentation is found to belong to, whether plaintiff or defendant, fhall have a writ directed to the bishop ad admittendum clericum, reciting the judgment of the court, and ordering him to admit and inftitute the clerk of the prevailing party; and, if upon this order he does not admit him, the patron may fue 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 advowfon, which refembles other writs of right: the only diftinguishing advantage now attending 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 advowfons are to be brought; at least none later than the times of Richard I and Henry III: for by ftatute i Mar. ft. 2. c. 5. the ftatute of limitations, 32 Hen. VIII. c. 2. is declared not to extend to any writ of right of advowfon, quare impedit, or affife of darrein prefentment, or jus patronatus. And this upon very good reafon ; because it may very easily happen that the title to an advowson may not come in queftion, nor the right have opportunity to be tried, within fixty years; which is the longest period of limitation affigned by the ftatute of Henry VIII. For fir f Edward Coke tells us, that there was a parfon of one of his churches, that had been incumbent there above fifty years; [ 251 ] nor are inftances wanting wherein two fucceffive incumbents. have continued for upwards of a hundred years B. Had therefore the laft of thefe incumbents been the clerk of a ufurper, or had been prefented by lapfe, it would have been neceffary and unavoidable for the patron, in cafe of a difpute, to have recurred back above a century; in order to have fhewn a clear title and feifin by prefentation and admiflion of the prior incumbent. But though, for thefe reafons, a limitation. is highly improper with refpect only to the length of time; yet, as the title of advowfons is, for want of fome limitation rendered more precarious than that of any other hereditament, (especially fince the ftatute of queen Anne hath allowed poffeffory actions to be brought upon any prior presentation, however diftant) it might not perhaps be amifs if a limitation were established with refpect to the number of avoidances; or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for inftance, if no feifin were admitted to be alleged in any of thefe writs of patronage, after fixty years and three avoidances were past. In a writ of quare.impedit, which is almoft the only real action that remains in common use, and also in the affife of darrein prefentment, and writ of right, the patron only, and not the clerk, is allowed to fue the difturber. But, by virtue of feveral acts of parliament", there is one fpecies of presentations, in which a remedy, to be fued in the temporal fi Inft. 115. Two fucceffive incumbents of the rectory of Chelsfield cum Farnborough in Kent, continued 101 years; of whom the former was admitted in 1650, the latter in 1700, and died in 1751. Stat. 3 Jac. I. c. 5. 1 W. & M. c. 26. 12 Ann, ft, 2. c. 14. 11 Geo. II. c. 17 T3 courts, courts, is put into the hands of the clerks prefented, as well as of the owners of the advowfon. I mean the presentation to fuch benefices as belong to Roman catholic patrons; which, according to their feveral counties, are vested in and fecured to the two univerfities of this kingdom. And particularly by the statute of 12 Ann. ft 2. c. 14. § 4. a new method of [252] proceeding is provided; viz. that, besides the writs of quare impedit, which the univerfities as patrons are entitled to bring, they, or their clerks, may be at liberty to file a bill in equity against any perfon prefenting to fuch livings, and disturbing their right of patronage, or his ceftuy que trust, or any other person whom they have caufe to fufpect; in order to compel a discovery of any fecret trufts, for the benefit of papists, in evasion of those laws whereby this right of advowfon is vested in those learned bodies: and alfo (by the statute 11 Geo. II. c. 17.) to compel a difcovery whether any grant or conveyance, faid to be made of fuch advowfon, were made bona fide to a proteftant purchafor, for the benefit of protef tants, and for a full confideration; without which requifites everyfuch grant and conveyance of any advowfon or avoidance is abfolutely null and void. This is a particular law, and calculated for a particular purpose: but in no inftance but this does the common law permit the clerk himself to interfere in recovering a prefentation, of which he is afterwards to have the advantage. For befides that he has (as was before obferved) no temporal right in him till after inftitution and induction; and as he therefore can fuffer no wrong, is confequently entitled to no remedy; this exclufion of the clerk from being plaintiff feems alfo to arife from the very great honour and regard which the law pays to his facred function, For it looks upon the cure of fouls as too arduous and important a task to be eagerly fought for by any ferious clergyman; and therefore will not permit hin to contend openly at law for a charge and truft, which it prefumes he undertakes with diffidence. BUT when the clerk is in full poffeffion of the benefice, the law gives him the fame poffeffory remedies to recover his glebe, his rents, his tithes, and other ecclefiaftical dues, by |