262

Of Quare Impebit.

Of the Writ of Quare Impedit, and Appearance thereto, &c.

A

Quare impedit is a poffeffory action brought in the Common Pleas by all except the king who may bring it in B. R. or C. B. F. N. B. 32. E. and is now the only action used in case of the disturbance of patronage to a church or ecclefiaftical benefice; the affize of darrein prefentment, which lies only for disturbance where a man has an advowson by defcent from his ancestors, having fallen into difufe, as the writ of quare impedit is equally remedial, whether a man claims title by defcent or purchase. 3 Blackft. Com. 246.

In order to bring a quare impedit, the party applies to the curfitor for an original writ out of Chancery, which is to to this effect;

GEORGE the third, by the grace of God, of
Great Britain, France, and Ireland, king, defender.,
of the faith, &c. To the fheriff of
greeting. Command Thomas, bishop of ·
and C.D. efquire, that justly and without delay
they permit A. B. to prefent a fit perfon to the
in the faid county which

church of
is void, and in the gift of the faid A. as he faith,
and whereof he complaineth, that the said bishop
and C. D. unjustly hinder him; and unless they
shall so do, and the faid A. fhall give you fecurity
that his fuit fhall be profecuted, then fummon by
good fummoners the faid bifhop and C. D. that they
be before our juftices at Weßminster, from *
to fhew wherefore they will not do it, and have
you there the fummoners and this writ.

Witness Ourself at Westminster, the

in the twentieth year of our reign."

day of

• Muft have at least fifteen days between the teste and return,

The

Of the Writ of Quare Impedit, and Appearance

thereto, &c.

The fheriff's warrant thereon.

church of

to wit. John Williams, efquire, fheriff of the county aforefaid, to O. P. 2. R. &c. jointly and severally, by virtue of his majesty's writ to me directed, I command you, that you or fome or or one of you command Thomas, bishop of and C. D. efquire, that juftly and without delay, they permit A. B. to prefent a fit perfon to the which is void, and in the gift of the faid A. as he faith, and whereof he complaineth that the faid bishop and C. D. unjustly hinder him; and unless they shall fo do, and the faid A. fhall give you fecurity, that his fuit fhall be profecuted, then fummon by good fummoners the faid bishop and C. D. that they be before his majefty's juftices at Westminster, from to fhew wherefore they will not do it. And that you return the fame to me, fo that I may have there the fummoners and this precept given, &c. at, &c. in, &c.

By the fame fheriff.

By the ftat. of Marlbridge, 52 H. 3. The sheriffs ought

to make fummons by good fummoners, and return their

names upon the original. 1 Brownl. 158.

And the fummons ought to be ferved on the defendant, or at the church door. Ibid. 2 Mod. 265.

The defendants may have the common effoin, or de malo leti. 2 Inft. 124. but no other effign.

I Brownl. 160.

2 Inft. 125.

And if the defendants effoin, the plaintiff ought to adjourn it for 15 days, otherwife he thall be nonfuited. I Brownl. 159 Dal. 81.

Upon default of appearance, and no effoin, the plaintiff fhall have an attachment, and afterwards a diftringas. 2 Inft. 124. i Brownl. 128..

And, by the common law, the process to compel an appearance was by diftrefs infinite.

Ibid.

But now by the flat. of Marlbridge, if the defendant does not appear, nor caft an effoin on the first diftrefs, or before,

Of the Writ of Quare Impedit, and Appearance thereto, &c.

there fhall be judgment for the plaintiff, and a * writ to the bishop. 2 H. 4. 1 b. 2 Inft. 124. 1 Brownl. 158. Dy. 353. b.

But if the party be not actually fummoned, there fhall not be judgment upon default at the diftrefs. I Mod. 248.

2 Mad. 264.

By the common law, and now by the ftat. art. fup. chart. 15. In fummonfes and attachments, there ought to be 15 days exclufive between the tefte and return at least. 2 Inft. 567.

And by the fat. of Marlbridge, in quare impedit, or darrein prefentment, there ought to be only 15 or 21 days before

the return.

And the fummons ought to be tested the fame day it iffues, that there may be no prejudice in refpect of lapfe. Reg. 30. a. Bro. Qu. Imp. 151.

If the injury done to the plaintiff, or the delay, arifes from the bifap 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 pretended patron and his clerk, leaving out the bishop.

Or against the patron only.

But it is generally brought against all three-for if the bishop be left out, and the fuit is not determined till fix months are paft, the bishop is intitled to prefent by lapje; but if he is named, and is made a party to the fuit, no lapfe can poffibly accrue till the right is determined; and therefore it is always moft advifeable to make him a party. Cro. Jac. 93:

If the patron is left out, and the writ is only brought against the bishop and the clerk, the fuit is of no effect, and the writ fhall abate. Hob. 316. For the right of the patron is the principal queftion in the caufe. 7 Rep. 25.

And if the clerk is left out, and has received inftitution before the action brought (as is fometimes the cafe) the patron plaintiff, by his fuit, may recover the right of patron

i. e. A writ ad admittendum clericum; but then, before fuch writ, there must be a writ of inquiry to inquire of four points, which wide poft.

Of the Writ of Quare Impedit, and appearance thereto, &c.

age, 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 alledge against it: for which reafons it is the fafer way to infert them all three in the writ.

If the clerk of the pfeudo patron has not been inftituted, or if the plaintiff fufpects that the bifhop will admit the defendant's, or any other clerk, pending the fuit, he may, immediately upon fuing out the writ of quare impedit, fue out also 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 whatfoever, till fuch contention be determined. The writ of ne admittas is to this effect:

GEORGE the third, by the grace of God, of
Great Britain, France, and Ireland, king, defender
of the faith and so forth: To the reverend father.
in God, Thomas, by divine providence, bishop of
greeting. We prohibit you, that you ad-

mit a perfon to the church of which is,'
void, as it is faid, and concerning the advowfon
whereof, an action is commenced in our court of
the Bench, between A. B. efq. and you and C. D.
efquire, until it fhall be difcuffed in the faid court,
Whether the faid advowfon belongeth to the faid
A. or to you and the faid C. Witnefs Ourfelf at
Westminster, the
day of

the twentieth year of our reign, &c.

in

If the bishop 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

*

* A jure patronatus is a commiffion from the bishop, which he is bound to iffue if requefted by either of the contefling patrons, or their clerks, directed ufually to his chancellor, and others of competent learning, who are to fummon a jury of fix clergyinen, and fix laymen, to inquire into and examine who is the rightful patron. 1 Burn, 16, 17.

obtained.

Of the Writ of Quare Impedit, and Appearance thereto, &c.

obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a ftranger, by writ of fcire facias. 2 Sid. 94. and fhall have a fpecial action against the bishop, called a quare incumbravit, to recover the prefentation, and also fatisfaction in damages for the injury done him by incumbering the church by inftituting the clerk, pending the fuit, and after the ne admittas received *.

If one defendant fhould appear before the others, the plaintiff may declare against him fimul cum, &c. 1 Brownl. 159.

And note: Summons and feverance lies if one plaintiff will not fue. 1 Brownl. 158.

And if the writ abates it may be brought by journies ac compts. Ibid.

The writ may be general, and the count thereon Special. F. N. B. 33. a. 5 Co. 102. b. 10 Co. 135.

But if the bishop has incumbered the church by inftituting a clerk before the ne admittas iffued, no quare incumbravit lies: for the bishop hath no legal notice, till the writ of ne admittas is ferved upon him.

Of