that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement,) any waste grounds, woods, or pastures, in which his tenants have common appendant to their estates, provided he leaves *sufficient common to his tenants, according to the proportion *241] of their land. And this is extremely reasonable; for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be precluded from making what advantage he can of the rest of his manor, provided such advantage and improvement be noway derogatory from the former grants. The statute Westm. 2, 13 Edw. I. c. 46 extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord who have their common appendant; and further enacts that no assize of novel disseisin for common shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which, Sir Edward Coke says,(w) are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common and make it less sufficient for the commoners. And lastly, by statute 29 Geo. II. c. 36, and 31 Geo. II. c. 41, it is particularly enacted that any lords of wastes and commons, with the consent of the major part in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood. III. The third species of disturbance, that of ways, is very similar in its nature to the last; it principally happening when a person who hath a right to a way over another's grounds, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least not in so commodious a manner as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an assize will lie, as mentioned in a former chapter.(x) But if the right of way thus obstructed by the tenant be only in gross, (that is, annexed to a man's person and unconnected with any lands or *242] *tenements,) or if the obstruction of a way belonging to a house or land is made by a stranger, it is then in either case merely a disturbance; for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance, which must be laid ad nocumentum liberi tenementi; (y) and the obstruction of it by a stranger can never tend to put the right of way in dispute; the remedy, therefore, for As the lord may approve, leaving a sufficiency of common, the commoner abates an erection at the peril of an action. A person seised in fee of the waste may approve, although he be not lord. 3 T. R. 445. But there can be no approvement against the tenants of a manor, who have a right to dig gravel in the wastes and take estovers, (2 T. R. 391,) nor against common of turbary, (1 Taunt. 435;) and although the lord may approve against common of pastures, by 20 Hen. III. c. 4, 5 T. R. 411, yet there may be other rights of common against which he cannot approve. 6 T. R. 741. A custom for tenants to approve by the lord's consent and by presentment of the homage does not restrain the lord's right to approve. 2 T. R. 392, n. The lord may, with consent of the homage, grant part of the soil for building, if the exercise of the right be immemorial, (5 T. R. 417, n. ;) but a custom for the lord to grant leases of the waste without restriction is bad in point of law. 3 B. & A. 153. The cultivation of common lands, and the enclosure and management of them, are now carried on under private acts of parliament, subject to and adopting the regulations laid down in the 13 Geo. III. c. 81 and 41 Geo. III. c. 109, which are incorporated into all special enclosure acts.-CHITTY. By the general enclosure acts, (41 Geo. III. c. 109, amended by 1 & 2 Geo. IV. c. 23, 6 & 7 W. IV. c. 115, and 3 & 4 Vict. c. 31,) it is particularly enacted that any lords of wastes and commons, with the consent of two-third parts in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood.5ᎢᎬᎳᎪᎡᎢ . these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages.(z) IV. The fourth species of disturbance is that of disturbance of tenure, or breaking that connection which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger, either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord,(a) and gives him a reparation in damages against the offender by a special action on the case. V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is a hinderance or obstruction of a patron to present his clerk to a benefice. This injury was distinguished at common law from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon admitted and instituted.(b) In which case of usurpation, the patron lost by the common law not only his turn of presenting pro [*243 hac vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz., a writ of right of advowson.(c) The reason given for his losing the present turn, and not ejecting the usurper's clerk, was that, the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever. And the patron also lost the inheritance of his advow son, 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 absolutely 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 to 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 pre (*) Hale on F. N. B. 185. Lutw. 111, 119. (a) Hal. Anal. c. 40. 1 Roll. Abr. 108. (4) Co. Litt. 227. (e) 6 Rep. 49. (d) Ibid. And this preference of the peace of the church to the litigated rights of patrons was held to prevail in all cases, without any regard to infancy, coverture, or any such like disability of the patron; for it was a maxim of the common law "that he who came in by admission and institution came in by a judicial act; and the law presumes that the bishop who has the care of the souls of all within his diocese, for which he shall answer at his fearful and final account, (in respect of which he ought to keep and defend them against all heretics and schismatics and other ministers of the devil,) will not do or assent to any wrong to be done to their patronages, which is of their earthly possession, but, if the church be litigious, that he will inform himself of the truth by a de jure patronatus, and so do right." 6 Coke, 49.-CHITTY. sentation in himself 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 ful*244] ness 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 common law. But, bishops in antient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted 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 advowson. 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 further enacted, by statute 7 Anne, c. 18, that no usurpation 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; but that 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: the pseudo-patron, his clerk, and the ordinary; the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or dis*245] putable; the clerk, by demanding or obtaining institution, *which tends to and promotes the same inconvenience; and 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 assize 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 assize 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 assize 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 assize 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 Anne 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; assizes of darrein presentment, now not being in any wise conclusive, have been *246] totally disused, as indeed they began to be before;10 a quare impedit being more general, and therefore a more usual action. For the assize of darrein presentment hes 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,() 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 void by the ecclesiastical law;(n) but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity.(0) But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and, if nothing further 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 and examine who is the *rightful patron ;(p) and if, upon such inquiry made and certificate [*247 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 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 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 (1) 2 Inst. 355. (*) See Boswell's case, 6 Rep. 48. (1) See book ii. ch. 18. (m) See book i. ch. 11. (*) 1 Burn, 207. (°) 1 Roll. Rep. 191. (P) 1 Burn, 16, 17. 10 Now abolished, 3 & 4 W. IV. c. 27, s. 36.-STEWART. "One of the few real actions which still remain in England.-STEWART. [*248 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 pseudopatron, 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 show the reason why they hinder him. 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 patronatús, 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,is to recover the presentation, and also satisfaction in damages for the injury done him by encumbering the church with a clerk pending the suit and after the ne admittas received.(y) But if the bishop has encumbered 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.14 *249] The patron is therefore 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; (2) and he must also show 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 further 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 a 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 a 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 *250] in due time, then he shall have *judgment to recover the presentation, and if the church be full by institution of any clerk, to remove him; 13 This writ is now abolished, by 3 & 4 W. IV. c. 27, s. 36.-STEWART. "Yet it is said that if the bishop encumbers when no quare impedit is pending, and no debate for the church, quare incumbravit lies. N. N. 111, a., cited Com. Dig. Quare Incum bravit.-CHITTY. |