Imágenes de páginas
PDF
EPUB

mon law.

inheritance of his advowsơn, unless he recovered it in a writ of right, because by such usurpation he was put out of possession of his advowson, as much as when by actual entry and ouster he is disseised of lands or houses ; since the only possession, of which an advowson is capable, is by actual presentation and admission of one's clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted) (d) the church became absulutely full; so the usurper by such plenarty, arising from his own presentation, became in fact seised of the advowson : which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fulness of the church; and when it became void afresh, he could not then present, since another had the right of possession. The only remedy therefore, which the patron had left, was io try the mere right in a writ of right of advowson ; which is a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right (e): and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance (f). But in order to such recovery he must allege a presentation in nimseli or some of his ancestors, which proves him or them to have been

once in possession : for, as a grant of the advowson, during the [*244] fullness of church, conveys *no manner of possession for the

present, therefore a purchasor, until he hath presented, hath no actual seisin whereon to ground a writ of right (g). Thus stood the com

But, bishops in ancient times, either by carelessness or collusion, fre. quently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance cnacted by statute Westm. 2. 13 Edw. I. c. 5. § 2. that if a possessory action be brought within six months after the avoidance, the patron shall (notwithstanding such usurpation and institution) recover that very presentation ; which gives back to him the seisin of the advow

Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron, to recover it, was driven to the long and hazardous process of a writ of right. To remedy which it was farther enacted by statute 7 Ann. c. 18. that no üsurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation : that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church, and as a punishment for my own negligence ; bus chat turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper, with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past; but, during those six months, it is only a species of disturbance.

Disturbers of a right of advowson may therefore be these three persons ; ishe pseudo-patron, his clerk, and the ordinary ; the pretended patron, by (d) 6 Rep. 49.

Ibid. 36. (e) F.N. B. 30.

(g) 2 Inst. 357. possession ; but if the church be litigious, jure patronatus, and so du right." Cake taat he will inform himself of the truth bvá 49.

son.

[ocr errors]
[ocr errors]

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 iends 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. ) Io which case the patron shall have this writ (h) directed to the sheriff 10 summon an assise or jury, to inquire who was the last patron that presented to the church now vacani, 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. 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 sull 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 general, 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 impedie 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 (?), 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. in . usual for each party to enter a caveat with the bishop, to prevent bis inslitution of his antagonist's clerk. An institution after a caveat entered in (h) F. N. B. 31.

(!) See book II. ch. 18. (1) 2 Inst. 353.

(m) See book I. ch. 11. Ik) See Boswell's case, 6 Rep. 48.

:

void by the ecclesiastical law (n); but this the temporal courts pay no regar i'l), 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 patronalus, he is bound to do it. A jus patronatus is a commission from the bishop, direct

, ed 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 courts.

The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated a dupler querela (9): 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, i 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 institu

tion 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 tae reason why they hinder him.

(s) Cro. Jac. 98 (0) I Roll. Rep. 191

(s) Hob. 316. (p) 1 Burn. 16, 17.

(1) 7 Rep. 25.
in) F. N. B 39

(n) 1 Burn. 207.

1 Ibid. 113

Immediately on the suing out of the quare impedit, if the plaintiff sus. pects that the bishop will admit the defendant's or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admitlas (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 it the bishop doth, after the receipt of this writ, admit any person, even though the patron's right may bave 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 («): and shall have a special action against the bishop, called a quare iniumbravit ; 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 quure 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 (2): 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 10 be given by the statute of Westin. 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

a

:

(w) F. N. B. 37.
(2) 2 Sid. 94.
(y) F. N. B. 43.

(z) Vaugh. 7, 8.
(a) Hob. 199.
(b) 2 Inst. 361.

(15) Yet it is said, tha: if the bishop incum- N. N. 111 a, cited, Com. Dig jare Incom. bers when no quare impedit is pending, and no bravit. debat, for the church, quare incumbravi lies.

ges.

the ord.nary, ne not being party to the suit; in which case the plaintif loses his presentation pro hac vice, but shall recover two years' full value a the church from the defendant the pretended patron, as a satisfaction for the tirrn 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 dama

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 Ill.: 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 patronatûs. 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 wani 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). (c) Stat. Westm. 2. 13 Ed. I. c. 3, 1 3.

(8) Two successive incumbents of the rectory of Chelsfield cum Farnborough in Kent, continued 101

years ; of whom the former was admitted in 1650, ( I Inst. 115.

(d) F. N. B. 38. (e) Ibid. 47.

the latter in 1700, and died in 1751.

(16) À quare impedit lies for a church, an Willes Rep. 608. 2 Rol. Ab. 380. This ac. hospital, and donative, and by the equity of tion may be brought by the king in right of his the statute of Westininster, it lies for pre. crown, or on a title by lapse by a common pas bends chapels, vicarages. 3 T. R. 650. son, or by several who have the same title, bo

« AnteriorContinuar »