Blackstone's Commentaries on the Laws of England
Book the Third - Chapter the Sixteenth : Of Disturbance
PRIVATE WRONGS.
BOOK III.
CH. 16.
CHAPTER THE SIXTEENTH.
OF DISTURBANCE.
THE fixth and laft fpecies of real injuries is that of difturbance ; which is ufually a wrong done to fome incorporeal hereditament, by hindering or difquietin ghe owners in their regular and lawful enjoyment of it
a. I fhall confider five forts of this injury ; viz. 1. Difturbance of franchifes. 2. Difturbance of common. 3. Difturbance of ways. 4. Difturbance of tenure. 5. Difturbance of patronage.
I. DISTURBANCE of franchifes happens, when a man has the franchife of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, feifing waifs or eftrays, or (in fhort) any other fpecies of franchife whatfoever ; and he is difturbed or incommoded in the lawful excercife thereof. As if another by diftrefs, menaces, or perfuafions, prevails upon the fuitors not to appear at my court ; or obftructs the paffage to my fair or market ; or hunts in my free-warren ; or refues to pay me the accuftomed toll ; hinders me from feifing the waif or efray, whereby it efcapes or is carried out of my liberty : in every café of this kind, which it is impoffible here to recite or fuggeft, there is an injury done to the legal owner ; his property is damnified, and the profits arifing from fuch his franchife are diminifhed. To remedy which as the law has given no other
{FS}
a Finch.L.187.
{FE}
writ,
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CH. 16.
writ, he is therefore entitled to fue for damages by a fpecies action on the café : or, in cafe of toll, may take a diftrefs if he pleafes
b.
II. THE difturbance of common comes next to be confidered ; where any act is done, by which the right of another to his common is incommoded or diminifhed. This may happen, in the firft place, where one who hath no right of common, put his cattle into the land ; and thereby robs the cattle of the commoners of their refpective fhares of the pafture. Or if one, who hath a right common, puts in cattle which are not commonable as hogs and goats ; which amounts to the fame inconenience. But the lord of the foil my (by cuftom or prefcription, but not without) put a ftranger's cattle into the common
c ; and alfo, by a like prefcription for common appurtenant, cattle that are not commonable may be put into the common
d. The lord alfo of the foil may juftify making burrows therein, and putting in rabbets, fo as they do not encreafe to fo large a number as totally to deftroy the common
e. But in general, in café the beafts of a ftranger, or the uncommonable cattle of a commoner be found upon the land, the lord or any of the commoners may diftrein them damage-feafant
f : or the commoner may bring an action on the café to recover damages, provided injury done be any thing confiderable ; fo that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trefpafs the commoner has no action ; but the lord of the foil only, for the entry and trefpafs committed
g.
ANOTHER difturbance of common is by furcharging it ; or putting more cattle therein than the pafture and herbage will fuftain, or the party hath a right to do. In this café he that furcharges does an injury to the feft of the owners, by depriving them of their refpective portions, or at leaft contracting them
{FS}
b Cro.Eliz.558.
c 1 Roll. Abr.396.
b Co.Litt.122.
e Cro. Eliz.876. Cro.Jac.195. Lutw.108.
f 9 Rep.112.
g Ibid.
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into
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into a fmaller compafs. This injury by furcharging can properly fpeaking only happen, where the common is appendant or appurtenant
h, and of courfe limitable b law; or where, when in grofs, it is expreffly limited an certain: for where a man hath common in grofs, fans nombre or without ftint, he cannot be a furcharger. However, even where a man is faid to have common without ftint, ftill there muft be left fufficient for the lord's own beafts
i: for the law will not fuppofe that, at the original grant of the common, the lord meant to exclude himfelf.
THE ufual remedies, for furcharging the common, are either by diftreining fo many of the beafts as are above the number allowed, or elfe by an action of trefpafs; both which may be had by the lord: or, laftly, by a fpecial action on the cafe for damages; in which any commoner may be plaintiff
k. But the antient and moft effectual method of proceeding is by writ of admeafurement of pafture. This lies, either where a common appurtenant or in grofs is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been afcertained. I either of thefe cafes, as well the lord, as any of the commoners, is entitled to this writ of admeafurement; which is one of thofe writs, that are called vicontiel
l, being directed to the fheriff, (vice-comiti) and not to be returned to any fuperior court, till finally executed by him. It recites a complaint, that the defendant hath furcharged,
fuperoneravit, the common: and therefore commands the fheriff to admeafure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful fhare. And upon this fuit all the commoners fhall be admeafured, as well thofe who have not, as thofe who have, furcharged the common; as well the plaintiff, as the defendant
m. The execution of this writ muft be by a jury of twelve, men,
.{FS}
h See book II. ch. 3.
i1 Roll. Abr. 399.
k Freem. 273.
l 2 Inft. 369.
m F. N. B. 125.
.{FE}
who
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who are upon their oaths to afcertain, under the fuperintendence of the fheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeafurement is generally underftood to be, that the commoner fhall not turn more cattle upon the common, than are fufficient to manure and ftock the land to which his right of common is annexed; or, as our antient law expreffed it, fuch cattle only as are levant and couchant upon his tenement
n: which being a thing uncertain before admeafurement, has frequently, though erroneoufly, occafioned this unmeafured right of common to be called a common without ftint or fans nombre
o; a thing which, though poffible in law, does in fact very rarely exift.
IF, after the admeafurement has thus afcertained the right, the fame defendant furcharges the common again, the plaintiff may have a writ of fecond furcharge, de fecunda fuperoneratione, which is given by the ftatute Weftm. 2. 13 Edw. I. c. 8. and thereby the fheriff is directed to enquire by a jury, whether the defendant has in fact again furcharged the common, contrary to the tenor of the laft admeafurement: and if he has, he fhall then forfeit to the king the fupernumerary cattle put in, and alfo fhall pay damages to the plaintiff
p. This procefs feems highly equitable: for the firft offence is held to be committed through mere inadvertence; and therefore there are no damages or forfeiture on the firft writ, which was only to afcertain the right which was difputed: but the fecond offence is a willful contempt and injuftice; and therefore punifhed very properly with not only damages, but alfo forfeiture. And herein the right, being once fettled, is never again difputed; but only the fact is tried, whether there be any fecond furcharge or no: which gives this neglected proceeding a great advantage over the modern method, by action on the cafe, wherein the quantum of common belonging to the defendant muft be proved upon every frefh trial, for every repeated offence.
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n Bro. Abr. t. prefceiption. 28.
o Hardr. 117.
pF. N. B. 126. 2 Inft. 370.
.{FE}
THERE
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THERE is yet another difturbance of common, when the owner of the land, or other perfon, fo enclofes or otherwife obftructs it, that the commoner is precluded from enjoying the benefit, to which he is by law entitled. This may be done, either by erecting fences, or by driving the cattle off the land, or by ploughing up the foil of the common
q. Or it may be done by erecting a warren therein, and ftocking it with rabbets in fuch quantities, that they devour the whole herbage, and thereby deftroy the common. For in fuch cafe, though the commoner may not deftroy the rabbets, yet the law looks upon this as an injurious difturbance of his right, and has given him his remedy by action againft the owner
r. This kind of difturbance does indeed amount to a diffeifin, and if the commoner chufes to confider it in that light, the law has given him an affife of novel diffeifin, againft the lord, to recover the poffeffion of his common
s. Or it has given a writ of quod permittat againft any ftranger, as well as the owner of the land, in cafe of fuch a difturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defendant fhall be compelled to permit the plaintiff to enjoy his common as he ought
t. But if the commoner does not chufe to bring a real action to recover feifin, or to try the right, he may (which is the eafier and more ufual way) bring an action on the cafe for his damages, inftead of an affife or a quod permittat
u.
THERE are cafes indeed, in which the lord may enclofe and abridge the common; for which, as they are no injury to any one, fo no one is entitled to any remedy. For it is provided by the ftatute of Merton, 20 Hen. III. c. 4. that the lord may approve, that is, enclofe and convert to the ufes of hufbandry (which is a melioration or approvement) any wafte grounds, woods, or paftures, in which his tenants have common appendant to their ef-
.{FS}
q Cro. Eliz. 198.
r Cro. Jac. 195.
s F. N. B. 179.
t Finch. L. 275. F. N. B. 123.
u Cro. Jac. 195.
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tates;
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tates; provided he leaves fufficient common to his tenants, according to the proportion of their land. And this is extremely reafonable: for it would be very hard if the lord, whofe anceftors granted out thefe eftates to which the commons are appendant, fhould be precluded from making what advantage he can of the reft of his manor; provided fuch advantage and improvement be no way derogatory from the former grants. The ftatute Weftm. 2. 13 Edw. I. c. 46. extends this liberty of approving, in like manner, againft all others that have common appurtenant, or in grofs, as well as againft the tenants of the lord, who have their common appendant; and farther enacts that no affife of novel diffeifin, for common, fhall lie againft a lord for erecting on the common any windmill, fheephoufe, or other neceffary buildings therein fpecified: which, fir Edward Coke fays
w, are only put as examples; and that any other neceffary improvements may be made by the lord, though in reality they abridge the common, and make it lefs fufficient for the commoners. And laftly, by ftatutes 29 Geo. II. c. 36. and 31 Geo. II. c. 41. it is particularly enacted, that any lords of waftes and commons, with the confent of the major part, in number and value, of the commoners, may inclofe any part thereof, for the growth of timber and underwood.
III. THE third fpecies of difturbance, that of ways, is very fimilar in it's nature to the laft: it principally happening when a perfon, who hath a right to a way over another's grounds, by grant or prefcription, is obftructed by inclofures, or other obftacles, or by ploughing acrofs it; by which means he cannot enjoy his right of way, or at leaft not in fo commodious a manner as he might have done. If this be a way annexed to his eftate, and the obftruction is made by the tenant of the land, this brings it to another fpecies of injury; for it is then a nufance for which an affife will lie, as mentioned in a former chapter
x. But if the right of way, thus obftructed by the tenant, be only in grofs, (that is, annexed to a man's perfon and unconnected with any
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w 2 Inft. 476.
x ch. 13. pag. 218.
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lands or teftaments) or if the obftruction of a way belonging to an houfe or land is made by a ftranger, it is then in either cafe merely a difturbance: for the obftruction of a way in grofs is no detriment to any lands or teftaments, and therefore does not fall under the legal notion of a nufance, which muft be laid, ad nocumentum liberi tenementi
y; and the obftruction of it by a ftranger can never tend to put the right of way in difpute: the remedy therefore for thefe difturbances is not by affife or any real action, but by the univerfal remedy of action on the cafe to recover damages
z.
IV. THE fourth fpecies of difturbance is that of difturbance of tenure, or breaking that connexion, which fubfifts between the lord and his tenant, and to which the law pays fo high a regard, that it will not fuffer it to be wantonly diffolved by the act of a third perfon. The having an eftate well tenanted is an advantage that every landlord muft be every fenfible of; and therefore the driving away a tenant from off his eftate is an injury of no fmall confequence. If therefore there be a tenant at will of any lands or teftaments, and a ftranger either by menaces and threats, or by unlawful diftreffes, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very juftly conftrues to be a wrong and injury to the lord
a, and gives him a reparation in damages againft the offender by a fpecial action on the cafe.
V. THE fifth and laft fpecies of difturbance, but by far the moft confiderable, is that of difturbance of patronage; which is an hindrance or obftruction of a patron to prefent his clerk to a benefice.
THIS injury was diftinguifhed at common law from another fpecies of injury, called ufurpation; which is an abfolute oufter or difpoffeffion of the patron, and happens when a ftranger, that hath no right, prefenteth a clerk, and he is thereupon admitted
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y F. N. B. 183.
z Hale on F. N. B. 183. Lutw. 111. 119.
a Hal. Anal. c. 40. 1 Roll. Abr. 108.
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and
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and inftituted
b. In which cafe, of ufurpation, the patron loft by the common law not only his turn of prefenting pro hac vice, but alfo the abfolute and perpetual inheritance of the advowfon, fo that he could not prefent again upon the next avoidance, unlefs in the mean time he recovered his right by a real action, viz. a writ of right of advowfon
c. The reafon given for his lofing the prefent turn, and not ejecting the ufurper's clerk, was, that the final intent of the law in creating this fpecies of property being to have a fit perfon to celebrate divine fervice, it preferred the peace of the church (provided a clerk were once admitted and inftituted) to the right of any patron whatever. And the patron alfo loft the inheritance of his advowfon, unlefs he recovered it in a writ of right, becaufe by fuch ufurpation he was put out of poffeffion of his advowfon, as much as when by actual entry and oufter he is diffeifed of lands or houfes; fince the only poffeffion, of which an advowfon is capable, is by actual prefentation and admiffion of one's clerk. And therefore, when the clerk was once inftituted (except in the cafe of the king, where he muft alfo be inducted
d,) the church was abfolutely full; and the ufurper became feifed ¸f the advowfon. Which feifin or poffeffion it was impoffible for the true patron to remove by any poffeffory action, or other means, during the plenary or fulnefs of the church; and when it became void afrefh, he could not prefent, fince another had the right of poffeffion. The only remedy therefore, which the patron had left, was to try the mere right in a writ of right of advowfon; which is a peculiar writ of right, framed for this fpecial purpofe, but in every other refpect correfponding with other writs of right
e: and, if a man recovered therein, he regained his advowfon and was entitled to prefent at the next avoidance
f. But in order to fuch recovery he muft allege a prefentation in himfelf or fome of his anceftors, which proves him or them to have been once in poffeffion: for, as a grant of the advowfon, during the fullnefs of the church, con-
.{FS}
b Co. Litt. 277.
c 6 Rep. 49.
d Ibid.
e F. N. B. 30.
f Ibid. 36.
.{FE}
G g 2
veys
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veys no manner of poffeffion for the prefent, therefore a purchafer, until he hath prefented, hath no actual feifin whereon to ground a writ of right
g. Thus ftood the common law.
BUT bifhops, in antient times, either by careleffnefs or collufion, frequently inftituting clerks upon the prefentation of ufurpers, and thereby defrauding the real patrons of their right of poffeffion, it was in fubftance enacted by ftatute Weftm. 2. 13 Edw. I. c. 5. §. 2. that if a poffeffion action be brought within fix months after the avoidance, the patron fhall (notwithftanding fuch ufurpation and inftitution) recover that very prefentation; which gives back to him the feifin of the advowfon. Yet ftill, if the true patron omitted to bring his action within fix months, the feifin was gained by the ufurper, and the patron to recover it was driven to the long and hazardous procefs of a writ of right. To remedy which it was farther enacted by ftatute 7 Ann. c. 18. that no ufurpation fhall difplace the eftate or intereft of the patron, or turn it to a mere right; but that the true patron had happened. So that the title of ufurpation is now much narrowed, and the law ftands upon this reafonable foundation: that if a ftranger ufurps my prefentation and I do not purfue my right within fix months, I fhall lofe that turn without remedy, for the peace of the church, and as a punifhment for my own negligence; but that turn is the only one I fhall lofe thereby. Ufurpation now gains no right to the ufurper, with regard to any future avoidance, but only to the prefent vacancy: it cannot indeed be remedied after fix months are paft; but, during thofe fix months, it is only a fpecies of difturbance.
DISTURBERS of a right of advowfon may therefore be thefe three perfons; the pfeudo-patron, his clerk, and the ordinary: the pretended patron, by prefenting to a church to which he has no right, and thereby making it litigious or difputable; the clerk, by demanding or obtaining inftitution, which tends to and
.{FS}
g 2 Inft. 357.
.{FE}
promotes
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promotes the fame inconvenience; and the ordinary, by refufing to admit the real patron's clerk, or admitting the clerk of the pretender. Thefe difturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himfelf, the law (befides the writ of right of advowfon, which is a final and conclufive remedy) hath given him two inferior poffeffory actions for his relief; an affife of darrein prefentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law fuppofes the injury to be offered to him only, by obftructing or refufing the admiffion of his nominee; and not to the clerk, who hath no right in him till inftitution, and of courfe can fuffer no injury.
1. AN affife of darrein prefentment, or laft prefentation, lies when a man, or his anceftors, under whom he claims, have prefented a clerk to a benefice, who is inftituted; and afterwards upon the next avoidance a ftranger prefents a clerk, and thereby difturbs him that is the real patron. In which cafe the patron fhall have this writ
h, directed to the fheriff to fummon an affife or jury, to enquire who was the laft patron that prefented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the affife determines that queftion, a writ fhall iffue to the bifhop; to inftitute the clerk of that patron, in whofe favour the determination is made, and alfo to give damages, in purfuance of ftatute Weftm. 2. 13 Edw. I. c. 5. This queftion, it is to be obferved, was, before the ftatute 7 Ann. before-mentioned, entirely conclufive, as between the patron or his heirs and a ftranger: for, till then, the full poffeffion of the advowfon was in him who prefented laft and his heirs; unlefs, fince that prefentation, the clerk had been evicted within fix months, or the rightful patron had recovered the advowfon in a writ of right, which is a title fuperior to all others. But that ftatute having given a right to any perfon to bring a quare impedit, and to recover (if his title be good) notwithftanding the laft prefentation, by whomfoever
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h F. N. B. 31.
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made;
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made; affifes of darrein prefentment, now not being in any wife conclufive, have been totally difufed, as indeed they began to be before; a quare impedit being a more general, and therefore a more ufual action. For the affife of darrein prefentment lies only where a man has an advowfon by defcent from his anceftors; but the writ of quare impedit is equally remedial whether a man claims title by defcent or by purchafe
i.
2. I PROCEED therefore, fecondly, to enquire into the nature
k of a writ of quare impedit, now the only action ufed in cafe of the difturbance of patronage: and fhall firft premife the ufual proceedings previous to the bringing of the writ.
UPON the vacancy of a living the patron, we known, is bound to prefent within fix calendar months
l, otherwife it will lapfe to the bifhop. But, if the prefentation be made within that time, the bifhop is bound to admit and inftitute the clerk, if found fufficient
m; unlefs the church be full, or there be notice of any litigation. For if any pofition be intended, it is ufual for each party to enter a caveat with the bifhop, to prevent his inftitution of his antagonift's clerk. An inftitution after a caveat entered is void by the ecclefiaftical law
n; but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity
o. But if two prefentations be offered to the bifhop upon the fame avoidance, the church is then faid to become litigious; and, if nothing farther be done, the bifhop may fufpend the admiffion of either, and fuffer a lapfe to incur. Yet if the patron or clerk on either fide requeft him to award a jus patronatus, he is bound to do it. A jus patronatus is a commiffion from the bifhop, directed ufually to his chancellor and others of competent learning; who are to fummon a jury of fix clergymen and fix laymen, to enquire into and examine who is the rightful
.{FS}
I 2 Inft. 355.
k See Bofwell's cafe. 6 Rep. 48.
l See book II. ch. 18.
m See book I. ch. 11.
n 1 Burn. 207.
o 1 Roll. Rep. 191.
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patron
p;
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patron
p; and if, upon fuch enquiry made and certificate thereof returned by the commiffioners, he admits and inftitutes the clerk of that patron whom they return as the true one, the bifhop fecures himfelf at all events from being a difturber, whatever proceedings may be had afterwards in the temporal courts.
THE clerk refufed by the bifhop may alfo have a remedy againft him in the fpiritual court, denominated a duplex querela
q: which is a complaint in the nature of an appeal from the ordinary to his next immediate fuperior; as from a bifhop to the arch-bifhop, or from an arch-bifhop to the delegates: and if the fuperior court adjudges the caufe of refufal to be infufficient, it will grant inftitution to the appellant.
THUS far matters may go on in the mere ecclefiaftical courfe; but in contefted prefentations they feldom go fo far: for, upon the firft delay or refufal of the bifhop to admit his clerk, the patron ufually brings his writ of quare impedit againft the bifhop, for the temporal injury done to his property, in difturbing him in his prefentation. And, if the delay arifes from the bifhop 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 againft the patron and clerk, leaving out the bifhop; or againft the patron only. But it is moft advifeable to bring it againft all three: for if the bifhop be left out, and the fuit be not determined till the fix months are paft, the bifhop is entitled to prefent by lapfe; for he is not party to the fuit
r: but, if he be named, no lapfe can poffibly accrue till the right is determined. If the patron be left out, and the writ be brought only againft the bifhop and the clerk, the fuit is of no effect, and the writ fhall abate
s; for the right of the patron is the principal queftion in the caufe
t. If the clerk be left out,
.{FS}
p 1 Burn. 16, 17.
q Ibid. 113.
r Cro. Jac. 93.
s Hob. 316.
t 7 Rep. 25.
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and
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And has received inftitution before the action brought (as is fometimes the cafe) the patron by this fuit may recover his right of patronage, but not the prefent turn; for he cannot have judgment to remove the clerk, unlefs he be made a defendant, and party to the fuit, to hear what he can allege againft it. For which reafons it is the fafer way always to infert them, all three, in the writ.
THE writ of quare impedit
u commands the difturbers, the bifhop, the pfeudo-patron, and his clerk, to permit the plaintiff to prefent a proper perfon (without fpecifying the particular clerk) to fuch a vacant church, which pertains to his patronage; and which the defendants, as he alleges, do obftruct: and unlefs they fo do, then that they appear in court to fhew the reafon why they hinder him.
IMMEDIATELY on the fuing our of the quare impedit, if the plaintiff fufpects that the bifhop will admit the defendant's or any other clerk, pending the fuit, he may have a prohibitory writ, called a ne admittas
w; which recites the contention begun in the king's courts, and forbids the bifhop to admit any clerk whatfoever till fuch contention be determined. And if the bifhop 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 obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a ftranger, by writ of fcire facias
x: and fhall have a fpecial action againft the bifhop, called a quare incumbravit; to recover the prefentation, and alfo fatisfaction in damages for the injury done him by incumbering the church with a clerk, pending the fuit, and after the ne admittas received
y. But if the bifhop has incumbered the church by inftituting the clerk, before the ne admittas iffued, no quare incumbravit lies; for the bifhop hath no legal notice, till the writ of ne admittas is ferved upon him. The
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u F. N. B. 32.
w Ibid. 37.
x 2 Sid. 94.
y F. N. B. 48.
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patron
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patron is therefore left to his quare impedit merely; which, as was before obferved, now lies (fince the ftatute of Weftm. 2.) as well upon a recent ufurpation within fix months paft, as upon a difturbance without any ufurpation had.
IN the proceedings upon a quare impedit, the plaintiff muft fet out his title at length, and prove at leaft one prefentation in himfelf, his anceftors, or thofe under whom he claims; furrender he muft recover by the ftrength of his own right, and not by the weaknefs of the defendant's: and he muft alfo fhew a difturbance before the action brought
a. Upon this the bifhop and the clerk ufually difclaim all title: fave only, the one as ordinary, to admit and inftitute; and the other as prefentee 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 himfelf, if needful. But if the right be found for the plaintiff, on the trial, three farther points are alfo to be enquired: 1. If the church be full; and, if full, then of whofe prefentation: for if it be of the defendant's prefentation, then the clerk is removable by writ brought in due time. 2. Of what value the living is: and this in order to affefs the damages which are directed to be given by the ftatute of Weftm. 2. and, 3. In cafe of plenarty upon a ufurpation, whether fix calendar
b months have paffed between the avoidance and the time of bringing the action: for then it would not be within the ftatute, which permits an ufurpation to be devefted by a quare impedit, brought infra tempus femeftre. So that plenarty is ftill a fufficient bar in an action of quare impedit, brought above fix months after the vacancy happens; as it was univerfally 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 fhall have judgment
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z Vaugh. 7, 8.
aHob. 199.
b 2 Inft. 361.
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to recover the prefentation; and, if the church be full by inftitution of any clerk, to remove him: unlefs it were filled pendente lite by lapfe to the ordinary, he not being party to the fuit; in which cafe the plaintiff lofes his prefentation pro hac vice, but fhall recover two years' full value of the church from the defendant the pretended patron, as a fatisfaction for the turn loft by his difturbance: or, in cafe of his infolvency, he fhall void at the end of the fuit, then whichever party the prefentation is found to belong to, whether plaintiff or defendant, fhall have a writ directed to the bifhop ad admittendum clericum
d, reciting the judgment of the court, and ordering him to admit and inftitute the clerk of the prevailing party; and, if upon this order he does not admit him, the patron may fue the bifhop in a writ of quare non admifit
e, and recover ample fatisfaction in damages.
BESIDES thefe poffeffory actions, there may be alfo had (as hath before been incidentally mentioned) a writ of right of advowfon, which refembles other writs of right: the only diftinguifhing advantage now attending it, being, that it is more conclufive than a quare impedit; fince 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 advowfons are to be brought; at leaft none later than the times of Richard I and Henry III: for by ftatute 1 Mar. ft. 2. c. 5. the ftatute of limitations, 32 Hen. VIII. c. 2. is declared not to extend to any writ of right of advowfon, quare impedit, or affife of darrein prefentment, or jus patronatus. And this upon very good reafon: becaufe it may very eafily happen that the title to an advowfon may not come in queftion, not the right have opportunity to be tried, within fixty years, which is the longeft period of limitation affigned by the ftatute of Henry VIII. For fir Edward Coke
f tells us, that there was a parfon of one of
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c Stat. Weftm. 2. 13 Edw. I. c. 5 §. 3.
d F. N. B. 38.
e Ibid. 47.
f 1 Inft. 115.
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his
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his churches, that had been incumbent there above fifty years; nor are inftances wanting wherein two fucceffive incumbents have continued for upwards of a hundred years
g. Had therefore the laft of thefe incumbents been the clerk of a ufurper, or had been prefented by lapfe, it would have been neceffary and unavoidable for the patron, in cafe of a difpute, to have recurred back above a century, in order to have fhewn a clear title and feifin by prefentation and admiffion of the prior incumbent. But though, for thefe reafons, a limitation is highly improper with refpect only to the length of time; yet, as the title of advowfons is, for want of fome limitation, rendered more precarious than that of any other hereditament, it might not perhaps be amifs if a limitation were eftablifhed with refpect to the number of avoidances; or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for inftance, if no feifin were admitted to be alleged in any of thefe writs of patronage, after fixty years and four avoidances were paft.
IN a writ of quare impedit, which is almoft the only real action that remains in common ufe, and alfo in the affife of darrein prefentment, and writ of right, the patron only, and not the clerk, is allowed to fue the difturber. But, by virtue of feveral acts of parliament
h, there is one fpecies of prefentations, in which a remedy, to be fued in the temporal courts, is put into the hands of the clerks prefented, as well as of the owners of the advowfon. I mean the prefentation to fuch benefices, as belong to roman catholic patrons; which, according to their feveral counties, are vefted in and fecured to the two univerfities of this kingdom. And particularly by the ftatute of 12 Ann. ft. 2. c. 14. §. 4. a new method of proceeding is provided; viz. that, befides the writs of quare impedit, which the univerfities as patrons are entitled to bring, they, or their clerks, may be at liberty to file a
.{FS}
g The two laft incumbents of the rectory of Chelsfield cum Farnborough in Kent, continued 101 years; of wlfom the former was admitted in 1650, the latter in 1700, and died in 1751.
h Stat. 3 Jac. I. c. 5. 1 W. & M. c. 26. 12 Ann. ft. 2. c. 14. 11 Geo. II. c. 17.
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H h 2
bill
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bill in equity againft any perfon prefenting to fuch livings, and difturbing their right of patronage, or his ceftui qui truft, or any other perfon whom they have caufe to fufpect; in order to compel a difcovery of any fecret trufts, for the benefit of papifts, in evafion of thofe laws whereby this right of advowfon is vefted in thofe learned bodies: and alfo (by the ftatute 11 Geo. II.) to compel a difcovery whether any grant or conveyance, faid to be made of fuch advowfon, were made bona fide to a proteftant purchafer, for the benefit of proteftants, and for a full confideration; without which requifites every fuch grant or conveyance of any advowfon or avoidance is abfolutely null and void. This is a particular law, and calculated for a particular purpofe: but in no inftance but this does the common law permit the clerk himfelf to interfere in recovering a prefentation, of which he is afterwards to have the advantage. For befides that he has (as was before obferved) no temporal right in him till after inftitution and induction; and, as he therefore can fuffer no wrong, is confequently entitled to no remedy; this exclufion of the clerk from being plaintiff feems alfo to arife from the very great honour and regard, which the law pays to his facred function. For it looks upon the cure of fouls as too arduous and important a tafk to be eagerly fought for by any ferious clergyman; and therefore will not permit him to contend openly at law for a charge and truft, which it perfumes he undertakes with diffidence.
BUT when the clerk is in full poffeffion of the benefice, the law gives him the fame poffeffory remedies to recover his glebe, his rents, his tithes, and other ecclefiaftical dues, by writ of entry, affife, ejectment, debt, or trefpafs, (as the cafe may happen) which it furnifhes to the owners of lay property. Yet he fhall not have a writ of right, nor fuch other fimilar writs as are grounded upon the mere right; becaufe he hath not I him the intire fee and right
I: but he is intitled to a fpecial remedy called a writ of juris utrum, which is fometimes ftiled the parfon's writ
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I F. N. B. 49.
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of
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of right
k, being the higheft writ which he can have
l. This lies for a parfon or a prebendary at common law, and for a vicar by ftatute 14 Edw. III. c. 17. and is in the nature of an affife, to enquire whether the teftaments in queftion are frankalmoign belonging to the church of the demandant, or elfe the lay fee of the tenant
m. And thereby the demandant may recover lands and teftaments belonging to the church, which were aliened by the predeceffor; or of which he was diffeifed; or which were recovered againft him by verdict, confeffion, or default, without praying in aid of the patron and ordinary; or on which any perfon has intruded fince the predeceffor's death
n. But fince the reftraining ftatute of 13 Eliz. c. 10. whereby the alienation of the predeceffor, or a recovery fuffered by him of the lands of the church, is declared to be abfolutely void, this remedy is of very little ufe, unlefs where the parfon himfelf has been deforced for more than twenty years
o; for the fucceffor, at any competent time after his acceffion to the benefice, may enter, or bring an ejectment.
.{FS}
k Booth. 221.
l F. N. B. 48.
m Regiftr. 32.
n F. N. B. 48, 49.
o Booth. 221.
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