CHAP. IX.

On the several Remedies relative to Advowsons.

obstructions

W HEN any patron is obstructed in presenting Remedies his clerk to a benefice, or disturbed in relative to his right of presentation, the law has given him in the prethree writs; namely, the writ of right of advow- sentation of son, which is a final and conclusive remedy, and two inferior possessory actions, called an assize of darrein presentment, and a writ of quare impedit.

As the latter is the only action now commonly used in case of the disturbance of patronage, it will be merely necessary to treat shortly of the two former.

advowsons.

I. When a clerk was once instituted, and in the of the writ case of the king inducted, the church was abso- of right. lutely full, so that 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 of the church; and when it became again void, he could not then present, since another had the right of possession. The only remedy, therefore, which the patron had, was to

Writ of right must allege a presentation.

Induction necessary to main in it.

try the mere right in a writ of right of advowson, which is a peculiar writ framed for this special purpose, by recovering in which he regained the possession of his advowson, and was entitled to present at the next avoidance.

By this writ of right, the inheritance of the advowson might be recovered, but the incumbent could not be removed, for the writ is quod permittat ipsum presentare ad ecclesiam. The last presentation is the very foundation of the writ, and a purchaser could not have this writ of right without alleging a presentation in his own time, or that of his ancestor, as every one must count of some seisin, and show a possession in himself or his ancestors, as a seisin before time of memory is insufficient, and he must claim to have the advowson to him and his heirs in fee simple. (1)

The admission and institution of a clerk was not sufficient to maintain this writ, because in it he ought to allege the esplees in his clerk, as in the perception of the great tithes, and that he could not do without induction; and until induction, which gives the temporal possession, a parson has no estate in the glebe. (2)

(*) 2 Inst. 356. Fitz. N. B. 30. Read and Redman's case, 10 Rep. 134.

(2) Harev. Brickley, Plowd. R 528.

If a purchaser in tail suffered any usurpation before presentment, he was without remedy during his life, and if the advowson was in gross, then the presentments were but usurpations, and did not prejudice the heir in tail, ratione statuti, but if it was appendant, the alienation of an acre with the advowson was a discontinuance. (1)

writ.

If there are two joint tenants of land to them, Who may and the heirs of one of them, they cannot join join in this in a writ of right; but yet two joint tenants to them and the heirs of one of them, of an advowson, shall join in a writ of right of advowson; and the reason of the difference is, that in the first case they have several means and remedies; but in the other, if tenant for life shall not join with him who hath the fee, neither one or other hath any remedy, and therefore necessitas vincit legem. (2)

II. The assize of darrein presentment, or Darrein preassisa ultimæ presentationis, is a writ which lies sentment. for the right of presentation to a church, or where a man or his ancestor hath presented a clerk to a church, and afterwards (the church becoming void by his death or otherwise) a stranger presents his clerk to the same church, in disturbance of him who had last presented.

(*) 3 Mal. Q. Imp. 165. 40. Sir W. Pelham's case, (*) Dormer's case, 5 Rep. 1 Rep. 15. a.

Nature of

the writ.

Not conclusive.

The patron may have this writ directed to the sheriff to summon a jury, to enquire 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 assise determine that question, a writ issues 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 the statute of Westm. 2. 13. Edw. I. c. 5.

This question, it is to be observed, was before the statute 7 Anne 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. But that statute has 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 anywise conclusive, have been totally disused, as indeed they began to be before, a quare impedit being a more general, and, therefore, a more usual action; for the assize of darrein presentment lies only where a man has an advowson by descent from his ancestors, but the writ of

quare

impedit is equally remediable whether a person claims by descent or by purchase. (')

Where the ordinary, metropolitan, or king presents for lapse, any of these collatives will serve the patron for a possession in his assize of darrein presentment; which assize of darrein presentment cannot be purchased pending a quare impedit for the same avoidance. (2)

An assize of darrein presentment does not lie by one coparcener against another; nor if tenant for life or for years claims by lease from the plaintiff himself; nor if an infant purchases an advowson, and an usurpation be made upon him; nor if an usurpation be made upon a feme covert who purchased the advowson. (3)

Hence it becomes necessary to enquire into the nature of a writ of quare impedit, the only action now used in case of the disturbance of patronage.

Of quare impedit.

III. If two patrons present to one and the Writ of same church by several titles, the church is be- quare impecome litigious, because the bishop knows not

which has the true and rightful title; as, when

(*) 3 Black. Com. 246.

(2) William S. Andrews v. The Bishop of York, Hob. R.

(3) 2 Inst. 360. Com. Dig. tit. Quare Imp. C. 1. C. 2.

dit.