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Of Declaring in Quare Impedit.

HE plaintiff in his declaration must fhew a title to prefent. Vide Com. Dig. tit. Pleader, 5 vol. 278.

And if he claims a right to prefent against common right, he muft fhew the commencement of it; as if he alledges prefentations by turns he muft fhew how this commenced, by prefcription, compofition or otherwife. Dy. 299. 3 Leon. 163.

And the plaintiff muft fhew a title in him before the avoidance. Dyer 129. b. Bend. pl. 79.

And if there are feveral plaintiffs, and they vary in title, the writ abates, R. Mod. 184.

The plaintiff ought alfo to alledge a prefentment by himfelf or his ancestor, or fome other under whom he claims. Vaug. 7. 17. 57. But though it is generally necessary to alledge a prefentment, the want thereof will be cured by a verdict. Stra. 1006.

In a quare impedit for a united church, the patron ought to fhew a prefentation either to the united church, or to one of the old churches. Vide Ld. Raym. 201, 202.

A purchafor may alledge a 'prefentment by the vendor. 2 Inft. 356.

And if the plaintiff alledges a prefentment without a precedent title, he must fay it was tempore pacis. I Mod. 230.

But he need not, if a precedent title is alledged. R.

I Mod. 230.

And if a prefentment be alledged by a common perfon he must say, that the clerk was thereon inftituted and inducted. Bend. pl. 297.

The laft prefentment regularly fhall be mentioned; and therefore if the bifhop prefents by lapfe, upon the next avoidance the patron in quare impedit fhall make mention 3 Leon. 18. Dal. 75.

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And the plaintiff ought alfo to alledge a disturbance.

And if the fuit be by an executor or adminiftrator, upon an avoidance in the life of the teftator, an allegation of the disturbance in the life of the teftator is sufficient. R. Sav. 95. Lut. 2.

T

Of Pleading in Quare Impedit,

O a declaration in quare impedit the defendants may imparl-and afterwards may either join or plead severally. Bro. 2. Imp. 157, 165.

And they may plead in abatement, or to the action. But the ordinary cannot plead in abatement, or caft an effoin without making himself a difturber. Hob. 200.

Every defendant may plead the general issue, which is ne difturba pas; becaufe the plea doth not defend the wrong wherewith he stands charged, and leaves the plaintiff's title not only uncontroverted, but in effect confeffed; and the plaintiff may upon that plea prefently pay a writ to the bishop; or at his choice maintain the difturbance for damages. Hob. 162. Vaugh. 58.

But the bishop generally, when made a party to the fuit, to fhew that he is not a difturber, pleads in bar of the action, that he claims nothing but as ordinary. Hob. 198. Keil. 43. a. Co. Ent. 498. d. 38 Ed. 3. 2.

He must difclaim, or admit himself a disturber. Hob. 320.

And if he refufes a clerk, without caufe, he is a difturber. I Leon. 230.

Upon fuch plea by the bishop, the plaintiff may have judgment against him with a writ, but a ceffat executio till the other pleas are determined. Hob. 320. Vau. 6. Keil, 43. a.

If a ceffat executio is not entered, it is only form. R. 1 Roll. 363.

But if there be not a ceffat executio, it is error, if execution be before the other pleas are determined. Ibid.

If the clerk of the pseudo-patron has been inftituted, he generally pleads, that he claims nothing but as perfona imperfonata ex prefentatione of fuch a one.

Or he may plead plenarty of the plaintiff, or a stranger; and by the common law, plenarty, before the writ for any time, was a good plea. 2 Inft. 360.

But now by the ftat. Weft. 2. c. 5. It must be plenarty for fix months before the action brought to be a fufficient bar of the plaintiff's action, to recover the prefentation, if the plaintiff prevails.

In pleading plenarty for fix months, by the prefentment, either of the plaintiff himself, or by collation, or by lapfe by the ordinary, the incumbent need not make title. Noy 30. But where he pleads the prefentment of a stranger, he ought to fhew title. But plenarty, even for fix months, is no

plea

Of Pleading in Quare Impedit, &c.

plea against the king, according to the rule, nullum tempus occurrit regi. 2 Inft. 361.

The defendant patron, if he does not rely on the general iffue, or plead a releafe, must fet up a title and traverse the plaintiff's; but if he fhews a title, fubfequent to the plaintiff's, he need not traverse the plaintiff's title, for then he confeffes and avoids it.

In replying to the defendant's plea and title, it is not fufficient for the plaintiff to deftroy that title, without maintaining his own title. Vaugh. 60.

The contefting parties go on to issue or demurrer, and the proceedings therein are the fame as in other cafes; but in this action the plaintiff muft recover upon the ftrength of his own right, and not by the weakness of the defendant's. Vaugh. 7, 8.

Upon the trial the plaintiff is put to make out his own title; and upon failure thereof, the defendant is put upon the proof of his, in order to obtain judgment for himself, if needful.

If upon the trial the right be found for the plaintiff, the jury are to inquire of four things-1. Whether the church is full. 2. Of whose prefentation; for if it be of the defendant's prefentation, his clerk is removeable, if made a party to the fuit, and the plaintiff commenced his action in due time, i. e. infra tempus femeftre, by writ. 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 if* fix months have paffed it will not be be within the ftatute Weftm. 2. which permits an ufurpation to be divefted by a quare impedit brought infra tempus femestre. 2 Inft. 361. 4. Of what value yearly the living is, and this in order to affefs damages according to the ftat. Weft. 2. before which ftatute no damages were allowed; but by that ftatute, if fix months país by the disturbance of any, fo that the bifhop do confer to the church, and the patron lofeth his turn, damages fhall be awarded to two years value of the church; and if fix months be not paffed, but the prefentment be deraigned within the faid time, then damages thall be awarded to the half year's value of the church.

*Note: In all ecclefiaftica! proceedings, a month means a calendar month; in temporal, a lunar month.

Of

Of the Verdict, Enquiry, Judgment, &c.

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F all the defendants make default upon the diftrefs, the plaintiff bas judgment against all; for all are fuppofed difturbers. R. Mod. 81. and that without title made. F. N. B. 38. 11. Semb. cont. 1 Brown. 158.

But if the plaintiff recovers upon demurrer, there must be a writ of inquiry iffued to inquire of the preceding four points before the plaintiff has final judgment, and a writ to the bishop. R. Mod. 81.

Or after a verdict for the plaintiff, if the jury have omitted to inquire of these points, there fhall be a writ of inquiry, and till this is executed, the writ to the bishop fhall ftay. 1 Bro. Ent. 327.

If the patron and incumbent confefs the action, or nil dicunt, &c. there fhall be judgment for the plaintiff, and a writ to the bishop.

If the church remains void, the plaintiff fhall recover no damages; and if the jury affefs them, a remittitur de damnis must be entered. 3 Lev. 59. 2 Inft. 362.

The damages are to be recovered against the disturber; and therefore if the incumbent counterplead the title of the plaintiff as well as the patron, the plaintiff fhall recover the value as well against him as against the patron. But no damages fhall be recovered against the bishop, where he claims only as ordinary-and note: The king is not within the ftatute, becaufe, by his prerogative, he cannot lose his prefentation. 6 Co. 52.

Of

Of the Judgment in Quare Impedit, &c.

F it be found that the plaintiff hath the right, and hath commenced his action in due time, then he shall have judgment to recover his prefentation; and if the church be found to be full, by the inftitution of any clerk, to remove him, unless it were filled pendente lite, by lapfe to the ordinary, he not being a party to the fuit, in which cafe the plaintiff lofes his presentation pro hac vice, but shall 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 cafe of his infolvency, he shall be imprifoned for two years. Stat. Weft. 2. f. 5. f. 3.

If the action was commenced within the fix months, and the plaintiff have judgment to recover his presentation, and the church be full, whereby the former prefentment will be deraigned, then damages fhall be awarded to the plaintiff for half a year's value of the church.

Upon the plaintiff's recovering his prefentation the writ iffued in confequence thereof is a writ directed to the bishop, called a writ ad admittendum clericum, which recites the judgment of the court, and orders him to admit and inftitute the clerk prefented; and if upon this order he does not admit him (the clerk being duly qualified) the patron may fue the bishop in a quare non admifit, and recover ample fatisfaction in damages.

The writ ad admittendum clericum, is to this effect:

"GEORGE the third, by the grace of God, of
Great Britain, France, and Ireland, king, defen-
der of the faith, and fo forth. To the reverend
father in God, Thomas, by divine permiffion, bi-
fhop of -
greeting: Whereas A. B. has
lately in our court, before our juftices of the
Bench, at Westminster, by the confideration of the
fame court, recovered against you and E. F. clerk,
and C. D. his prefentation to the rectory and parifh.
in our county of

and

church of
your diocefe, which became vacant, and belongs
to his prefentation: And whereupon it was con-
fidered by our faid court of the Bench, that the
faid A. fhould have our writ to you the faid bifhop,
the ordinary of that place, to be directed; and
notwithstanding your difclaimer, and the claims
of the faid E. F. and C. D. or either of them, you
fhould

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