CHAPTER VIII.

OF QUARE IMPEDIT.

A QUARE IMPEDIT is a possessory action, for which reason the plaintiff must shew an actual seisin, which in general must be by alledging a presentation in himself, or in some person under whom he claims; (R. v. Landaff Bp. H. 8 Geo. II. Stra. 1006.) though there may be cases in which that is not necessary, as where a man recovers in a writ of right of advowson, and has execution. (2 Rol. Abr. 378, U. F. N. B. 33, H.) So where it is a new created advowson to which there is no presentment. And where a presentation is necessary to be shewn, that of a grantee of the next avoidance, or of a tenant at will, is a sufficient title for the patron in fee to have this writ. (2 Rol. Abr. 377. pl. 13. Northumberland's Ca. M. 39 & 40 Eliz. 5 Co. 98.) (a) However, this defect of not setting out a presentment will be aided by a verdict, where it was necessary for the plaintiff to prove it in order to prove the issue; for it is not a defect of title, but a title defectively set out.-R. v. Landaff Bp. sup. (b)

(a) The crown, as well as the subject, must alledge a presentation, and a commendam retinere does not amount to one; but where the verdict finds that the crown was seised in fee ut de uno grosso, it cures the want of allegation. R. v. Landaff Bp. sup.

(b) In quare impedit the patron only, and not the clerk, may sue the disturber, but where there is no disturbance this writ will not lie; therefore, where the patron declared that he was disturbed on the 1st November, and defendant pleaded that on 1st May next there was a lapse to the queen, who presented him, the plea was held ill on demurrer, because defendant had not confessed, avoided, or traversed the declaration, and though the queen's title was confessed by the demurrer, yet defendant having lost his incumbency by his ill plea, the patron, and not the queen, shall present again. Arundell v. Gloucester Bp. 1 Leon. 149. Ow. 49.

By

After plaintiff has fully set out his title, as in Birch v. Litchfield, 3 Bos. & Pull. 444, he must shew at least one presentation in himself or his ancestors, for he must recover on the strength of his own right. Tufton v. Temple, Vaugh. 7, 8; and he must shew a disturbance before action brought. Brickhead v. York Archbp. Hob. 199. On this the bishop and clerk usually disclaim all title, save the first, to admit and institute, and the latter, as presentee, to defend his right, and, on failure of the plaintiff to make out his own title, defendant is put to prove his, that he may obtain judgment. Thrale et al', Executors, v. London Bp. et al', 1 H. Bl. 376. 550; but if, on the trial, the right be found for plaintiff, three other things must be enquired. 1st, Whether the church be full, and if so, of whose presentation? for if it be of defendant's, the clerk is removeable by writ brought in due time. 2dly, Of what value the liv ing is in order that the damages

may

By Westminster 2. c. 5. If a stranger usurp upon an infant claiming by descent, or upon tenant for life, by the curtesy, in dower, in tail, or upon tenant for years by demise of the ancestor, the heir shall not be put to his writ of right, but on the next avoidance may present, or if he be disturbed bring his quare impedit, in which he must lay the last presentation in his * ancestor, and skip over the usurpation, for by the statute that [* 123 ] is to be counted as none to this purpose: (Boswell's Ca. 3 Jac. I. 6 Co. 148.) but if one usurp on an infant heir who comes of age within six months, if the heir remove not the incumbent by suit, he is out of the statute. (Stanhope v. Lincoln Bp. E. 14 Jac. I. Hob. 240.) The infant in such case cannot grant the advowson, because he has but a right; for in this point the statute has made no change, but has left the possession with the usurper, only has given the usurpee a readier action.-Fitz. Qu. Imp. 67. (a)

By the 7 Ann. c. 18, it is enacted, That no usurpation upon any avoidance in any church, &c. shall displace the estate or interest of any person, but he may present, or maintain his quare impedit upon the next or any other avoidance (if disturbed) notwithstanding such usurpation. And if coparceners, joint-tenants or tenants in common, make partition to present by turns, each shall be adjudged to be seised of his separate part to present in his turn. (b)

If the issue be found for the plaintiff, the jury are to enquire, first, whether the church be full; secondly, upon whose presentment; thirdly,

may be assessed under statute Westminster 2. c. 5. And 3dly, In case of plenarty upon an usurpation, whether six calendar months have elapsed between the avoidance and the writ, for then it would 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 to a quare impedit brought above six months after the vacancy; but if it be found that plaintiff has the right, and has sued in good time, he shall have judgment for the presentation. Lancaster v. Lowe, Cro. Jac. 93. Vide 2 Inst. 36.

(a) A. B. and C. three sisters, were coparceners of an advowson. 4. married D. on whom her third was settled. B. married E. and C. died, having devised her third to F. the son of B. and E. D. E. and F. bcing thus entitled, under or in right

of the several original coparceners, a
quare impedit was brought by G. a
stranger, against D. and E. E. died
pending the writ, and the share of
B. (who was also dead) thereupon
descended to F. in addition to the
share which he derived from C. D.
suffered judgment by default. Held,
that this judgment against D. was a
bar to a quare impedit brought by D.
and F. (in which D. was summoned
and severed) to recover the same pre-
sentation, but it is no bar to F.'s
right to recover on the next avoid-
ance in his turn. Barker v. London
Bp. H. Bla. 412. Willes, 659.

(b) If two coparceners cannot
agree in presenting to the church,
assize of darrein presentment will not
lie for one against the other, and the
ordinary ought to admit the presentee
of the eldest. Sed secus of joint-te-
nants, M. 15 Edw. III.

how

how long since it was void; fourthly, the yearly value; which being found, damages are to be given according to Westminster 2. c. 5. before which no damages were allowed; but by that statute, if six months pass by the disturbance of any, so that the bishop do confer to the church, and the very patron loseth his presentation for that time, damages shall be awarded to two years value of the church, and if six months be not passed, but the presentment be deraigned within the said time, then damages shall be awarded to the half year's value of the church. (a)

Note; The plaintiff shall recover no damages where the church remains void, and if the jury tax damages, a remittitur de damnis must be entered. (Holt v. Holland, T. 34 Car. II. 3 Lev. 59.) The damages are to be recovered against the disturber, and therefore if the incumbent counterplead the title of the plaintiff as well as the patron, the plaintiff shall recover the value as well against him as against the patron. (2 Inst. 362.) But no damages shall be recovered against the bishop, where he

(a) If the church be full when plaintiff recovers judgment, he may remove the incumbent unless filled on a lapse pendente lite, the bishop not a party, in which case, though the plaintiff loses that presentation, he shall recover from the defendant (patron) two years value of the church in lieu, or defendant shall be imprisoned two years if insolvent, and in other cases half a year's value and half a year's imprisonment. Stat. Westm. 2. 13 Edw. I. c. 5. s. 3. But if the church remain vacant till the suit is ended, the prevailing party shall have a writ to the bishop ad admittendum clericum, which, if the bishop refuses, a writ of quare non admisit lies against him to recover damages. R. v. Thornborough, 1 Mod. 254. F. N. B. 38. 47. So where the church was found filled by a stranger to the writ, and he did not appear to have come in on a better title than

the plaintiff's, the plaintiff may have a general writ to the bishop, which he must execute, and cannot return that the church is full. Boswell's Ca. 6 Co. 51. But where plaintiff recovered an advowson in ejectment, and had a writ to the bishop, and the incumbent was no party to the suit, quare impedit lies not without a sci. fa. to the incumbent. Hall v. Broad, 1 Sid. 93.

Where the issue is joined on the avoidance, the manner in which it is stated is not material. An avoidance by death will support an allegation of an avoidance by privation. Co. Lit. 282 (a), and on avoidance by death, it may be shewn that the incumbent has taken another living without a dispensation, for the manner is not the plaintiff's title but the avoidance. Anon. Dy. 377 (b).

The bishop had only one plea at common law, viz. that he claims nothing but as ordinary, nor could the incumbent counterplead the patron's title till 25 Edw. III. st. 3. c. 7. by which both may counterplead such title, the one when he collates by lapse, or makes title to himself as patron, and the other being persona impersonata, may plead his patron's title, and counterplead that of the plaintiff. Palme v. Hudde, Mar. 158. Hellwayes v. York Archbp. W. Jo. 4. If it appear either by pleading or confession that neither party has a title, but that it is in the king, the court may award a writ to the bishop to remove the incumbent, and admit idoneam personam ad præsent. regis, but only when his title is very plain. Camb. Canc. v. Walgrave, Hob. 126. Colt v. Coventry, ibid. 163. Norwood v. Dennis, 1 Leon. 323.

claims only as ordinary. The king is not within the statute, because by his prerogative he cannot lose his presentation.-Chandos's Ca. 6 Co.

55.

By Westminster 2. c. 30. The judge of Nisi Prius has power to give judgment immediately; yet if he do not, upon the return of the postea [ * 124 ] judgment may be given by the court to which the return is made.

If a retainer as chaplain to a person of quality be necessary to be proved, evidence of a copy of the retainer entered in the court of faculties is not good, but the oath of any person who has seen the retainer under the hand and seal of the person of quality, is good.-Roy v. Tranckwell, 2 Car. I. Litt. 1.

If the ordinary be not named, he may present by lapse, if the six months incur pendente brevi; but being named he cannot take advantage of any lapse; and as he is bound, so the metropolitan and the king are bound.-Lancaster v. Lowe, M. 3 Jac. I. Cro. Jac, 93.

The rule, that when the bishop is named in the quare impedit, he shall not present by lapse, is to be understood with some restriction, i. e. that there has been an actual disturbance before the action brought, for else the bishop shall not be ousted of his right of presentation by lapse.Brickhead v. York Archbp. M. 6 Jac. I. Hob. 201.

The course to stop strangers from presenting pendente brevi, is to sue a ne admittas to the bishop, and if the bishop then admit the clerk of any other hanging the suit, and the plaintiff recover, he shall have a quare incumbravit, and thereby remove such person so admitted, and put him to his quare impedit. But if he sue not a ne admittas, if the incumbent of a stranger come in by good title pendente brevi, he shall bar him in a sci. fa. and shall hold it, and therefore, if the jury find the church full by the presentment of a stranger, a writ shall not be awarded to remove the incumbent without a sci. fu. first sued out.-Lancaster v. Lowe, sup.

By the 21 Hen. VIII. c. 13. s. 9. If any person having one benefice with cure of souls, of the yearly value of £8, accept and take any other with cure of souls, and be instituted and inducted in possession of the same, the first benefice shall be adjudged to be void.-Digby's Ca. 8 Jac. I. 4 Co. 65. (a)

By the institution to the second benefice, the first is void by the ecclesiastical law, and therefore the patron may take notice and present, yet no lapse will incur without notice until six months after induction, and

(a) And if a clerk is instituted to a benefice of the yearly value of £8, and before induction he accepts another, with cure, and is instituted,

the first is void, for institution only is
within the words of the act. Digby's
Ca. 4 Co. 78.

that

[125]

that only in cases within the statute.-Winchcombe v. Winchester Bp. M. 6 Jac. I. Hob. 166.

By 13 Eliz. c. 12. No title to present by lapse shall accrue upon any deprivation, but after six months notice of such deprivation given by the ordinary to the patron. (a) The law is the same upon a resignation: but in case of death no notice is necessary.-2 Codex, 869. Anon. 18 Hen. VII. Kielw. 49. (b)

Note; The computation is to be according to the calendar and not the lunar mouths, and the day the church became void is to be taken into account.-2 Inst. 361.

Where the institution takes no notice of whose presentation, it has been said that the party may give evidence of general reputation; for a presentation may be by parol, and what commences by parol may be transmitted to posterity by parol, and that creates a reputation; yet as it is a single fact which is not the subject of notoriety, such evidence seems to be mere hearsay; and it differs from the case of proving a marriage, for there the reputation arises from the cohabitation; so of the retainer of a chaplain, from his acting as such; so of filiation, &c.-Bp. of Meath v. Ld. Belfield, T. 21 Geo. II. 1 Wils. 252.

By 12 Ann. c. 14. Papists are disabled to present to any benefice, and the right of presentation is given to the universities; and the statute enacts, that where any quare impedit is brought either by or against the university, the court may upon motion make a rule, requiring satisfaction upon the oath of such patron and his clerk (who shall contest the right of the university) by examination in open court, or by commission, or by affidavit, in order to discover any secret trust or fraud relating to the

(a) The six months, however, shall be accounted from the death of the one and the creation of the other. York Archbp. v. Willock, Dy. 327.

(b) Every patron must present within six months after vacancy, or the right will lapse to the bishop; but if presentation be made within six months, the bishop is bound to admit and institute the clerk, if worthy, unless the church be full, or there be notice of litigation. Boswell's Ca. 6Co. 49. Wood's Inst. 566. Co. Lit. 344. 2 Inst. 356. 5 Com. Dig. 376. If the bishop delay or refuse, the patron must bring his writ against the bishop alone, but if another presentation be set up, the

writ may be against the pretended patron and his clerk, either with or without the bishop, or against the patron alone. It is most advisable, however, to include all three, for then no lapse can accrue till the right is determined. 2 Crompt. Pra. 285. Lancaster v. Lowe, Cro. Jac. 93. Elvis v. York Archbp. Hob. 316. Hall's Ca. 7 Co. 25. Besides, if the clerk be left out, and has been instituted before the suit, the patron may recover the right of patronage, though not the present turn, for he cannot remove him unless he be made a party defendant to hear the allegations against him. Barker v. London Bp. 1 H. Bla. 412.

presentation