By the patron. the plaintiff, he confesses and avoids the plaintiff's title, as far as Inquare impedit. relates to the seisin in gross or appendancy, as the case may be, and therefore he cannot traverse that part of the title; but as something further is necessary to entitle the plaintiff to present, viz. a vacancy, either by death, resignation, or deprivation; and as such title is contrary to the title of the defendant, who asserts that the church is void by simony, and not by any of the other modes, in that case he should traverse the vacancy alleged by the plaintiff. (a) When the defendant has pleaded and set out a title in himself, and traversed the plaintiff's title, the latter cannot desert his own title and controvert the defendant's, by traversing the title alleged in the plea; for the consequence might be that he would recover on the weakness of his adversary's claim, and not on the strength of his own; and this rule holds, even where the king is plaintiff. (b) But where the king's title appears by office found, or other matter of record, there the king may relinquish his title, since it is established by record, and traverse the defendant's title. (c) Where it is necessary in a quare impedit, for the defendant, not only to deny the plaintiff's title, but likewise to set out a title in himself, which is the case whenever he wishes to have a writ to the bishop, he must plead with a special traverse absque hoc, fc. By this means he is enabled to state in the inducement to his traverse, the title upon which he relies; but whenever a writ to the bishop would be unnecessary, from the circumstance of his clerk being already admitted and instituted, it seems to be sufficient for the defendant, directly to deny such part of the plaintiff's title as he may think proper, without a formal special traverse. 3. Pleas by the Incumbent.-The clerk, like the other de- By the clerk, fendants, may plead the general issue ne disturba pas, upon which the plaintiff may either have judgment and a writ to the bishop, with a cesset executio, till the other issues are tried; or he may maintain the disturbance and proceed for his damages. (d) (a) Fenner v. Nicholson, Cro. Car. 61. Vangh. 16. (b) R. v. Bp. of Worcester, Vaugh. 60, 61, (c) Ibid. 62. Com. Dig. Pleader, (G. 19). (d) R. v. Bp. of Worcester, Vaugh. 58. Hob. 162.. In quare impedit. By the clerk. The clerk may plead in abatement the non joinder of the patron. (a) At common law, the incumbent could not have pleaded any plea which concerned the right of patronage, in which he had nothing; but the statute 25 Ed. 3, c. 7, enacts, that the possessor, that is, the incumbent, shall be allowed to counterplead the king's title, and to have his answer, and to shew and defend his right upon the matter, although he claim nothing in the patronage; and by equity, he may have this plea against common persons. (b) The statute uses the word possessor, and a question therefore arises, as to what makes the clerk a possessor. The church is full as against a common person when the clerk is admitted and instituted, while induction is required to make a plenarty against the king. In Hall's case, it is said to be sufficient to bring the incumbent within the statute, if when the action is by a common person, he has been admitted and instituted; while it is necessary, in a quare impedit by the king, that the clerk should be admitted, instituted, and inducted. In the case of Battaile v. Cook (c), however, it was held, that even in the case of a common person, the clerk cannot be said to be the possessor until he has been inducted; and with this opinion that of Lord Hobart coincides. (d) It may, however, be contended, that as the clerk is allowed to counterplead the title of a common person, by the equity of the statute, he shall by the same equity, be allowed to plead when he has such a possession as renders the church full as against the plaintiff. If the clerk resigns, or is made a bishop, pending the writ, he is not entitled to plead under this statute. (e) If the incumbent pleads to the title, it is said by Hobart, C. J. that he must as well shew and defend his own right, as counterplead his adversary's. (f) This is requiring from the incumbent something more than the patron himself could be called upon to do; for where his clerk has already In quare impedit. been admitted, and instituted, we have seen, that it is sufficient for the patron to deny the plaintiff's title without shewing any in himself. (a) The incumbent may plead, that he is parson imparsonee of the presentation of such a one, and in this plea he ought to maintain his own title, and that of the patron by whom he alleges the presentation. (b) And it is not sufficient for the incumbent to state, that the church has been full of him for six months by the presentation of a stranger, without shewing a title in such stranger (c); but he may say, that he is in of the plaintiff's own presentation, or by collation by lapse to the ordinary, without setting out any title (d); and the clerk may say, that he is in of the presentation of another person than of him who is sued as patron with him, for the plea of the one does not estop the other. (e) The incumbent cannot plead plenarty generally, for it is not properly a plea to the action; nor is it such a counterplea to the plaintiff's title, as is within the statute 25 Ed. 3, c. 7. (f) If the incumbent resigns pending the writ, he can no longer plead to the title under this statute; though he may still plead as he might have pleaded at common law. (g) When the incumbent pleads, that he is parson imparsonee of the presentation of such a one, the plaintiff may reply, that he is not parson imparsonee, or may allege, that he is in of the presentation of another person, and traverse the presentation alleged by the clerk. (h) It is said, that if the incumbent's plea be found for him, he shall not be removed, although other pleas be found for the plaintiff. (i) In waste. Nul waste fuit. Pleas to the title. The general issue in an action of waste is no waste done. (a) This plea admits nothing, but puts the whole declaration in issue, and therefore the plaintiff must prove his title as laid in the declaration, and also the kind of waste stated in it; so that if the waste, alleged in the declaration, be in cutting trees, and the jury find that the defendant stubbed them, it will be a variance. (b) Upon nul waste, the defendant may give in evidence any thing that proves no waste to have been committed; as that it happened by tempest, lightning, enemies, or the like (c); or that the lessor himself committed the waste. (d) But matter of justification or excuse cannot be given in evidence under this plea (e); and, therefore, where the defendant has cut timber for repairs, or for necessary botes, and used it accordingly, this must be specially pleaded. (f) The plaintiff may plead as to part, nul waste fait, and as to the residue, a special justification. (g) If a stranger bring an action of waste against tenant for life, and he plead nul waste, it is a forfeiture. (h) The pleas in waste to the plaintiff's title, are either in abatement or in bar; in abatement, where the title is wrongly stated; and in bar, where it is denied. Thus it is a good plea in abatement where the plaintiff entitles himself to a reversion in fee by descent, to say that the ancestor devised to him in tail; and in this case the descent ought not to be traversed. (i) It is a good plea in bar, to shew, that the reversion has been devested out of the plaintiff; but where the action is brought by the lessor against the lessee, the latter cannot plead generally, that the plaintiff has nothing in the reversion; but must shew how it has been devested (k), on account of the privity subsisting between them; but "nothing in the reversion," is a good plea when the action is brought by the assignee of the reversion. (1) If the plaintiff's title fails pending the suit, it may be pleaded puis darrein continuance, (m) as where the plaintiff becomes tenant in tail after pos (a) Co. Ent. 700, a. 708, a. 2 Latw. 1545. Godb. 209. (b) Leigh v. Leigh, 2 Lutw. 1547. (c) Co. Litt. 283, a. Ante, p. 121. (g) Co. Ent. 702, S. (h) Co. Litt. 252, a. (i) 2 Lutw. 1557. Com. Dig. Pleader, (3 O. 10). (k) Co. Litt. 356, a. (m) Ewer v. Moile, Yelv. 141. Spink v. Tenant, 1 Roll. Rep. 106. sibility of issue extinct. To destroy the plaintiff's title, the In waste. The defendant may plead in justification, that he took the trees, Repairs, &c. &c., for repairs (g); but it is not sufficient to say, that the defendant took them for repairs, unless it be added, that he used, or at least keeps them for repairs; for though he might, at first, have taken them for repairs, yet, perhaps, he afterwards sold them. (h) So the defendant may plead, that he took them for necessary botes, as for fire bote (i), wain bote, cart bote, or plough bote (k); or for gates, stiles, &c. (); or for making utensils of husbandry (m), or for hedge bote. (n) It is a good plea in excuse, that the defendant repaired before action brought, for the jury must view the waste, which of course they cannot do if it has been repaired; but if the repairs were after the commencement of the action, this plea cannot be pleaded. (0) The defendant may also plead, that the building was so ruinous at the time of the demise, that he could not maintain or repair it, and therefore he took it down and rebuilt (a) Winch. Ent. 1019, (1132). (b) Co. Ent. 697, b. Com. Dig. Pleader, (3 0. 18). (c) Winch. Ent. 1062, (1176). Goodright, dem. Peters v. Vivian, 8 East, 190. (d) Winch. Ent. 1062, (1176). (e) Co. Ent. 697, b. See ante, p. 111. (f) Stat. 11 Hen. 6, c. 5. Booth's case, 5 Rep. 77, a. Co. Ent. 698, a. F. N. B. 59 C. Ante, p. 112. (g) Co. Ent. 703, a. Winch. Ent. 1029, 1067, (1142, 1182, edit. 1680). (h) Danby v. Hodgson, 3 Lev. 323. |