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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 (h), there is one species of presentations, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the ad
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. st. 2. c. 14. s. 4. a new method of 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 [*252] to such livings, and disturbing their right of patronage, or his cestuy que trust, 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 consideration ; without which requisites every such 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 task to be eagerly sought for by any serious clergyman; and therefore will not
(h) Stat. 3 Jac. I. c. 5. i W. & M. c. 26. 12 Ann. st. 2, c. 14. 11 Geo. II. c. 17.
an executor or administrator. To maintain of a church, but they must all join; though it the action there must be a disturbance, as, if is otherwise of coparceners, for if they do not brought by a purchaser, he may allege a pre- agree,
the eldest shall have the presentation. sentation in him from whom he purchased the Bro. Joinder in Action, 103. But where A. same. Str. 1007. | Hen. Bla. 376. 530. If & B. were the grantees of the next avoidance there are distinct patrons of an advowson in of a church, and before any avoidance A. reone and the same church, as where one has leased his interest to B. and then the church the first portion and another the second, he became void, it was holder that B. alone who is disturbed may have a quare impedit, 3 should present to the church, and if he be dis. T. R. 646; and if there are distinct patrons turbed might bring a quare impedit in his owa and incumbents, so that the church is divided name only. Cro. Eliz. 600. I the suis belly into moieties, he who is disturbed shall have an execuior or adıninistrator, upon an avoidthe writ. 10 Rep. 136. 5 Rep. 102. I Inst. ance in the life of the testator, an allegation of 18. a. 4 Rep. 75. And if the right of nomi. the disturbance in the life of the testator is nation is in one, and that of presentation in sufficient. R. Sav. 95. Lutw. 2. See also, another, the quare impedit will lie by the per- as to the right of the execuior to bring this son having the nomination against the person action, Vin. Ab. Executors, P. pl. 7. Lateh. who has the presentation and obstrucis the 169, 9. Sir W. Jones, 175. Poph. 190. 1 right. 3 T. R. 651. Rast. 506. b. If there Vent. 30. As the defendant is considered an are two or more tenants in common, or joint actor in a quare impedit, he may make up the tenants, they must join in a quare impedit of issues, Tidd, Prac. 793mand may have a trial an advowson, for it is an entire thing, and one by proviso, although the plaintiff' has not comof them cannot have a quare impedit
of a moie. miited any laches in proceeding to trial. Ib. ty or of a third or fourth part of an advowson 820.
permit him to contend openly at law for a charge and trust, which it presumes he undertakes with diffidence.
But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assise, ejectment, debt, or trespass (as the case may happen), which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon the mere right; because he hath not in him the entire fee and right (i), but he is entitled to a special remedy called a
writ of juris utrum, which is sometimes styled the parson's writ of [*253] right (k), *being the highest writ which he can have (?). This
lies for a parson or prebendary at common law, and for a vicar by statute 14 Edw. III. c. 17. and is in the nature of an assise, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenant (m). And thereby the demandant may recover lands and tenements, belonging to the church, which were alienated by the predecessor ; or of which he was disseised; or which were recovered against him by verdict, confession, or default, without praying in aid of the patron and ordinary ; or on which any person has intruded since the predecessor's death (n). But since the restraining statute of 13 Eliz. c. 10. whereby the alienation of the predecessor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than twenty years (0); for the successor, at any competent time after his accession to the benefice, may enter, or bring an ejectment.
OF INJURIES PROCEEDING FROM, OR AFFECTING
Having in the nine preceding chapters considered the injuries, or private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the king, signified by his original writs returnable in the several courts of justice, which thence derive a jurisdiction of examining and determining the complaint ; I proceed now to inquire into the mode of redressing those injuries to which the crown itself is a party : which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy (a); or else is the sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these we will consider first, the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing ihose which the crown may receive from a subject. (i) F. N. B. 49.
(n) F. N. B. 48, 49. (k) Booth. 221.
(0) Booth, 221. (?) F. N. B. 48.
(a) Bro. Ábr. t. petition, 12. 1. prerogative, 2. (m) Registrar. 32
I. That the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, as has formerly been observed (6), that in the first place, whatever may be amiss in the conduct of public affairs is not *chargeable personally on the [*255] king ; nor is he, but his ministers, accountable for it to the people : and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice (c). Whenever therefore it happens, that, by misinformation, or inadvertence, the crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (d), (for who shall command the king ?) (e) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute : and, as it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved.
The distance between the sovereign and his subjects is such, that it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man; and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all ; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconveniency therefore of a mischief that is barely possible, is (as Mr. Locke has observed) (f ) well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do a temporary injustice.
*The common law methods of obtaining possession or restitu- [*256] tion from the crown, of either real or personal property, are (1), 1. By petition de droit, or petition of right : which is said to owe its original to king Edward the First (8). 2. By monstrans de droit, manifestation or plea of right : both of which may be preferred or prosecuted either in the chancery or exchequer (h). The former is of use, where the king is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts dis
a closed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate (i): and
this answer being endorsed or underwritten by the king, soit droit fait al partie (let right be done to the party) (j), a commission shall issue to inquire of the truth of this suggestion (k): after the return of which, the king's attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and (b) Book I. ch. 7, page 243–246.
(g) Bro. Abr. t. prerog. 2. Fitz. Abr. t. error, 8. (d) Jenkins, 78. (e) Finch, L. 83 c) on Gov. p. 2, 6205.
(1) In New-York the remedy would be by petition to the legislature. VOL. II.
(c) Plowd. 437.
(h) Skin. 609.
subject. Thus, if a disseisor of lands, which are holden of the crown, dies seised without any heir, whereby the king is prima facie entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any office found ; now the disseisee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made (?). But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As is, in the case before supposed, the whole special matter is found by an inquest of office (as well the disseisin, as the dying without
any heir), the party grieved shall have monstrans de droit at the [*257] common law (m). But as this seldom happens, and the remedy
by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which also allow inquisitions of office to be traversed or denied, wherever the right of a subject is concerned, except in a very few cases (n). These proceedings are had in the petty-bag office in the court of chancery: and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis (0); which last clause is always added to judgments against the king (p), to whom no laches is ever imputed, and whose right (till some late statutes) (9) was never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession (r); so that there needs not the indecent interposition of his own officers to transfer the seisin from the king to the party aggrieved.
II. The methods of redressing such injuries as the crown may receive from the subject are,
1. By such usual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assise or an ejectment (s) (2): but he may bring a quare impedit (t), which always supposes the complainant to be seised or possessed of the advowson: and he may prosecute this writ, like every other by him brought, as well in the king's bench (u) as the common pleas, or in whatever court he pleases. So too, he may bring an action of trespass for taking away his goods; but such actions are not (1) Bro. Abr. t. petition, 20. 4 Rep. 58.
(9) 21 Jac. I. c. 2. 9 Geo. IIl. c. 16 (m) 4 Rep. 55.
(r) Finch, L. 459.
(8) Bro. Abr. t. prerogative, 89. (p) Finch, L. 460.
(u) Dyversyte des courtes, c. bank le roy. (2) But this objection to an ejectment does pais, an not in the king, and that possession not seem to apply where the king is lessor of is not privileged by prerogative. Hence it the plaintiff, for it is the lessee, and not the les. follows that the king's lessee may likewise sor who is supposed by the legal fiction to be have an ejectinent to punish the irespasser, ousted; and it is held, that where the possess and to recover the possession which was laken sion is not actually in the king, but in lease to from bim. 2 Leon. 206. Cro. Eliz. 331. another; then, it a stranger enter on the lessee, Adams on Eject. 72. he gains possession without taking the rever- In New York the State may bring the acsion out of the crown, and may have his eject. tion of ejectment, and in its own name. (1 ment to recover the possession if he be after R. S. 282.) wards ousted, because there is a possession in
(n) Skin. 608.
(1) F. N. B. 32.
usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession (w). It would be equally tedious *and difficult
, to run through every minute distinction that [*258] might be gleaned from our ancient books with regard to this matter; nor is any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process, as are peculiarly confined to the crown.
2. Such is that of inquisition or inquest of office : which is an injury made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels (~). This is done by a jury of no determinate number; being either twelve, or less, or more. As, to inquire, whether the king's tenant for life died seised, whereby the reversion accrues to the king : whether A, who held immediately of the crown, died without heirs ; in which case the lands belong to the king by escheat: whether B be attainted of treason; whereby his estate is forfeited to the crown: whether C, who has purchased lands, be an alien ; which is another cause of forfeiture: whether D be an idiot a nativitate ; and therefore, together with his lands, appertains to the custody of the king ; and other questions of like import, concerning both the circumstances of the tenant, and the value or identity of the lands (3). These inquests of office were more frequently in practice than at present, during the continuance of the military tenures amongst us: when, upon the death of every one of the king's tenants, an inquest of office was held, called an inquisitio post mortem, to inquire of what lands he died seised, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances, of the case might turn out. To superintend and regulate these inquiries the court of wards and liveries was instituted by statute 32 Hen. VIII. c. 46. which was abolished at the restoration of king Charles the Second, together with the oppressive tenures upon which it was founded.
*With regard to other matters, the inquests of office still remain [*259] in force, and are taken upon proper occasions; being extended not only to lands, but also to goods and chattels personal, as in the case of wreck, treasure-trove, and the like ; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance-medley, is not only with regard to chattels, but also as to real interests, in all respects an inquest of office : and if they find the treason or felony, or even the flight of the party accused (though innocent), the king is thereupon, by virtue of this office found, entiiled to have his forfeitures; and also, in the case of chance-medley, he or his grantees are entitled to such things by way of deodand, as have moved to the death of the party.
These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record ; without which he in general can neither take, nor part from any thing (y). For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seize any man's possessions upon bare sur(w) Bro. Abr. t. prerog. 130. F. N. B. 90. Year- (1) Finch, L. 323, 4, 5.
(y) Finch, L. 82. (3) See 1 R. S. 282, 01, &c.
book. 4 Hen. IV. 4.