What a suffi to maintain tween parceners, joint-tenants, and tenants in common, by record, or by deed. (1) If a person grants that the grantee shall name a clerk, and that the grantor shall present him to the ordinary, the grantee may sue the patron. But if he grants that the grantee shall name two, and that he shall present one, then the grantee cannot sue the patron as he has his election. (2) A plaintiff must show an actual seisin to maincient seisin tain this writ, and allege a presentment by himself, his ancestor, or some person under whom he claims. this writ. A presentation is always necessary for the maintaining this action, except in some special cases; as if a man found a church, and before he presents he is disturbed, he may maintain a quare impedit without proving a presentation, by showing the special matter. So if a church has been appropriated time out of mind, so that none knows who was the last incumbent; if the appropriation be dissolved, so that the church reverts to the heir of the first founder, if he be disturbed he may show the (*) Bishop of Salisbury v. Phillips, 1 Salk R.43. (2) Bro. Qua. Imp. 133. Mal. Q. Imp. 152. special matter, and maintain a quare impedit, without showing a presentation. (1) A presentment by lapse by the ordinary is a sufficient seisin; and if a grantee of the next avoidance presents, and after the heir of the grantor grants the next subsequent avoidance, that presentment is sufficient for the second grantee, for the presentment of the grantee of the next avoidance is sufficient for the grantor and his heirs. (2) If a tenant for years presents during the term (3); or if a lessee for life, or a tenant at will, or guardian during the wardship presents, that is sufficient for the person in reversion. (4) A presentment by the bishop as patron is suf ficient for the king to maintain this action to the church, when the temporalties come into the hands of the king by the vacancy of the bishop. And a presentation by the father is sufficient for the wife of the son, tenant in dower thereof; and also for the second husband in right of the wife. (5) (1) Reynoldson v. Blake and the Bishop of London, Ld. Raym. R. 201. (2) Mal. Q. Imp. and the cases there cited, 154, 155. T 3 (3) Bradiman's case, 6 Rep. 57. Bro. Qua. Imp. pl. 129. (4) Bro. Qua. Imp. pl. 139. (5) Mall. Qua. Imp. 156. Of what things and for what things a quare impedit may be brought. A quare impedit lies for a church, an hospital, and a donative; the writ shall be quod permittat ipsum præsentare ad ecclesiam, and the plaintiff must set forth the special matter in his declaration. And by the equity of the statute of Westminster, it lies of prebends, chapels, vicarages (1); but in the case of a prebend, it must be brought in the county where the cathedral is, and it must be præsentare ad præbendam, or if of a vicarage, præsentare ad vicariam. (2) This suit lies also of a free chapel which a man has by the king's patent, if the sheriff does not put him in possession; or by any person who, by the king's licence, makes a parochial church which shall be presentable, if he be disturbed, to present to it without even alleging a presentation in any person whatever; and this by reason of the necessity of the case (3); and in the case of a prerogative turn, the writ is general, quæ ad nostram spectat donationem; and though the declaration be ad suam donationem spectat jure prærogativa, yet that is no variance. (4) (1) The King v. The Marquis of Stafford, 3 T. R. 650. Mal. on Q. Imp. and the cases there cited, 149. 1 Inst. 344.a. Bract. lib. 4. 246. Bro. Qua. Imp. 157. 2 Rol. Abr. 380. Willes's Rep. 608. (2) 2 Rol. Abr. 336. Mer rickes's case, Dyer's R. 194. a. Dyer's R. 338. (3) Mal. Q. Imp. 153. And the cases there cited. (4) The King and Queen v. The Bishop of London and Dr. Lancaster, 2 Salk. R. 559. It would seem that if the donee of a donative was disturbed after admission, a mandamus would lie to restore him, the right being merely temporal, and the remedy by trespass, ejectment, or money had and received, not being specific, assuming also that no quare impedit lies by the disturbed donor or donee after admission; as it is a general rule that the court never grant a mandamus where there is another specific remedy at law (')"; nevertheless a distinction may perhaps be taken between the case where the donee had been in possession prior to the institution of a stranger's clerk, and where a presentation had been made by a stranger before the donation; and it might be contended that, in the latter case a quare impedit is the proper and peculiar remedy. If the delay of presentation arises from the bishop alone, as upon a 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. (1) Rex v. The Bishop of Chester, 1 T. R. 396. Rex v. The Marquis of Stafford, Ꭲ Ꮞ 3 T. R. 650. Rex v. The But it is most advisable to bring it against all three; for, First, 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, as he is not a party to the suit ('); but if he be named, and there has been a disturbance before the action, no lapse can possibly accrue till the right is determined. (2) Secondly, 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 (3), for the right of the patron is the principal question in the cause. Thirdly, if the clerk be left out, and has received institution before the action brought (as is sometimes the case), the patron by this 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 reasons it is always safer to insert all three in the writ, Nevertheless where the patron is not disturbed, and has no prejudice by the suit, it may be against the incumbent alone; as in quare impedit by simony of the incumbent (4), so in quare impedit (1) Lancaster v. Lowe, Archbishop of York, Hob. R. Cro. Jac, 93, (2) Brickhead v. Archbishop of York, Hob. R. 201. (3) Sir W. Elvis v. The 315. of York, 3 Lev. 16. |