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presenting to a church to which he has no right, and thereby making it litigious or disputable; the clerk, by demanding or obtaining institution *which tends to and promotes the same inconvenience; and [*245] the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. These disturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law (besides the writ of right of advowson, which is a final and conclusive remedy) hath given him two inferior possessory actions for his relief; an assise of darrein presentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee; and not to the clerk, who hath no right in him till institution, and of course can suffer no injury.
1. An assise of darrein presentment, or last presentation, lies when a man, or his ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted; and afterwards upon the next avoidance a stranger presents a clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writ (h) directed to the sheriff to summon an assise or jury, to inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assise determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2. 13 Edw. I. c. 5. This question, it is to be observed, was, before the statute 7 Ann. before mentioned, entirely conclusive, as between the patron or his heirs and a stranger: for, till then, the full possession of the advowson was in him who presented last and his heirs: unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a title superior to all others. But that statute having given a right to any person to bring a quare impedit, and to recover (if his title be good) notwithstanding the last presentation, by whomsoever made; assises of darrein present- [*246] ment, now not being in any wise conclusive, have been totally disused, as indeed they began to be before; a quare impedit being more ge'neral, and therefore a more usual action. For the assise of darrein presentment lies only where a man has an advowson by descent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchase (i).
2. I proceed therefore, secondly, to inquire into the nature (k) of a writ of quare impedit, now the only action used in case of the disturbance of patronage and shall first premise the usual proceedings previous to the bringing of the writ.
Upon the vacancy of a living, the patron, we know, is bound to present within six calendar months (2), otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient (m); unless the church be full, or there be notice of any litigation. For if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of his antagonist's clerk. An institution after a caveat entered is
(h) F. N. B. 31.
(i) 2 Inst. 355.
(k) See Boswell's case, 6 Rep. 48.
(1) See book II. ch. 18.
void by the ecclesiastical law (n); but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity (o). But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and, if nothing farther be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either side request him to award a jus patronatus, he is bound to do it. A jus patronatus is a commission from the bishop, directed usually to his chancellor and others of competent learning: who are to summon a jury of six clergymen and six laymen, to inquire into [*247] and examine who is the rightful patron (p); and if, upon such inquiry made and certificate thereof returned to the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber, whatever proceedings may be had afterwards in the temporal
The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated a duplex querela (q): which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the delegates; and if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant.
Thus far matters may go on in the mere ecclesiastical course; but in contested presentations they seldom go so far: for, upon the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare impedit against the bishop, for the temporal injury done to his property, in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another presentation set up, then the pretended patron and his clerk are also joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only. But it is most advisable to bring it against all three for if the bishop be left out, and 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 (r); 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 against the bishop and the clerk, the suit is of no effect, and the writ shall
abate (s); for the right of the patron is the principal question in [*248] the cause (t). If the clerk be left out, and has received institution before the action brought (as is sometimes the case), the patron by this suit may recover his right 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 suit, 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 (u) commands the disturbers, the bishop, the pseudo-patron, and his clerk, to permit the plaintiff to present a proper person (without specifying the particular clerk) to such a vacant church, which pertains to his patronage; and which the defendants, as he alleges, do obstruct; and unless they so do, then that they appear in court to shew the reason why they hinder him.
(n) 1 Burn. 207.
(0) 1 Roll. Rep. 191.
(p) 1 Burn. 16, 17.
(q) Ibid. 113.
(r) Cro. Jac. 98.
(s) Hob. 316.
(t) 7 Rep. 25.
(u) F. N. B 32.
Immediately on the suing out of the quare impedit, if the plaintiff suspects that the bishop will admit the defendant's or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittas (w); which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk whatsoever till such contention be determined. 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 patronatûs, 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 scire facias (x): and shall have a special action against the bishop, 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 issued, no quare incumbravit lies: for the bishop hath no legal notice, till the writ of ne admittas is served upon him (15). The patron is there- [*249] fore left to his quare impedit merely; which, as was before observed, now lies (since the statute of Westm. 2.) as well upon a recent usurpation within six 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 (z): and he must also shew a disturbance before the action brought (a). 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 removable by writ brought in due time. 2. Of what value the living is: and this in order to assess the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenarty upon an usurpation, whether six calendar (b) 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 tempus semestre. So that plenarty is still a sufficient bar in an action of quare impedit, brought above six 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 *judgment to [*250] recover the presentation; and, if the church be full by institution
of any clerk, to remove him: unless it were filled pendente lite by lapse to
(w) F. N. B. 37.
(x) 2 Sid. 94.
(y) F. N. B. 43.
(15) Yet it is said, that if the bishop incumbers when no quare impedit is pending, and no debate for the church, quare incumbravit lies.
(z) Vaugh. 7, 8.
N. N. 111 a, cited, Com. Dig. Quare Incum bravit.
the ordinary, he not being party to the suit; in which case the plaintifi loses his presentation pro hac vice, but shall recover two years' full value of the church from the defendant the pretended patron, as a satisfaction for the turn lost by his disturbance; or, in case of insolvency, the defendant shall be imprisoned for two years (c). 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 (d), 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 admissit (e), and recover ample satisfaction in damages.
Besides these possessory actions, there may be also had (as hath before been incidentally mentioned) a writ of right of advowson, which resembles other writs of right: the only distinguishing 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 advowsons are to be brought; at least none later than the times of Richard I. and Henry III.: for by statute 1 Mar. st. 2. c. 5. the statute of limitations, 32 Hen. VIII. c. 2. is declared not to extend to any writ of right of advowson, quare impedit, or assise 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 assigned by the statute of Henry VIII. For sir Ed
ward Coke (f) tells us, that there was a parson of one of his [*251] *churches, that had been incumbent there above fifty years; nor
are instances wanting wherein two successive incumbents have continued for upwards of a hundred years (g). Had therefore the last of these incumbents been the clerk of a usurper, or had he 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 seisin by presentation and admission 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 advowson is, for want of some limitation, rendered more precarious than that of any other hereditament (especially since the statute of queen Anne hath allowed possessory 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 (16).
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 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. 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. 1 W. & M. c. 26. 12 Ann. st. 2, c. 14. 11 Geo. II. c. 17.
an executor or administrator. To maintain the action there must be a disturbance, as, if brought by a purchaser, he may allege a presentation in him from whom he purchased the same. Str. 1007. 1 Hen. Bla. 376. 530. If there are distinct patrons of an advowson in one and the same church, as where one has the first portion and another the second, he who is disturbed may have a quare impedit, 3 T. R. 646; and if there are distinct patrons and incumbents, so that the church is divided into moieties, he who is disturbed shall have the writ. 10 Rep. 136. 5 Rep. 102. 1 Inst. 18. a. 4 Rep. 75. And if the right of nomination is in one, and that of presentation in another, the quare impedit will lie by the person having the nomination against the person who has the presentation and obstructs the right. 3 T. R. 651. Rast. 506. b. If there are two or more tenants in common, or jointtenants, they must join in a quare impedit of an advowson, for it is an entire thing, and one of them cannot have a quare impedit of a moiety or of a third or fourth part of an advowson
of a church, but they must all join; though it is otherwise of coparceners, for if they do not agree, the eldest shall have the presentation. Bro. Joinder in Action, 103. But where A. & B. were the grantees of the next avoidance of a church, and before any avoidance A. released his interest to B. and then the church became void, it was holden that B. alone should present to the church, and if he be disturbed might bring a quare impedit in his own name only. Cro. Eliz. 600. If the suit be by an executor or administrator, upon an avoidance in the life of the testator, an allegation of the disturbance in the life of the testator is sufficient. R. Sav. 95. Lutw. 2. See also, as to the right of the executor to bring this action, Vin. Ab. Executors, P. pl. 7. Latch. 168, 9. Sir W. Jones, 175. Poph. 190. 1 Vent. 30. As the defendant is considered an actor in a quare impedit, he may make up the issues, Tidd, Prac. 793, and may have a trial by proviso, although the plaintiff has not committed any laches in proceeding to trial. Ib. 820.