right, presents a clerk, and he is thereupon admitted and instituted. In which case of usurpation the patron, being thus put out of the only kind of possession of which this kind of property is capable, lost by the common law not only his turn of presenting pro hâc 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 meantime he recovered his right by a real action, viz., a writ of right of advowson; which was a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right, and, like them, finally deciding the question of property. Thus stood the common law.

But bishops in ancient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of presentation, it was in substance enacted by statute Westm. 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 writ of right. To remedy which it was further enacted by statute 7 Ann. 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 disputable; 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 has the right: and therefore if he be not wanting to himself, the law has given him for his relief an action 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 the clerk, who has no right in him till institution, and of course can suffer no injury.

I proceed, therefore, to inquire into the nature of an action of quare impedit; and shall first premise the usual proceedings previous to the bringing of the action.

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; 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; but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity. 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 patronatús, 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; and if, upon such inquiry made and certificate 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; 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 sovereign in council: 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 will seldom go so far: for, upon the first delay or refusal of the bishop to admit his clerk, the patron may bring his action 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 the usual and safer way to insert all three in the writ.

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, which forbids the bishop to admit any clerk whatsoever till such contention be determined; and if the bishop does, 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 have an action against the bishop, to recover satisfaction in damages for the injury done him by incumbering the church with a clerk pending the suit.

In the proceedings in 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: and he must also show a disturbance before the action brought. Upon this the bishop and the clerk may 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 it be found that the plaintiff has the right, and has commenced his action 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. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum, reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party; and if upon this order he does not admit him, the patron may sue the bishop for damages.

There was formerly no limitation with regard to the time within which any actions touching advowsons were to be brought; at least none later than the times of Richard I. and Henry III. And this upon very good reason: because it may very easily happen that the title to an advowson may not come in question, nor the right have opportunity to be tried within sixty years; which is the longest period of limitation assigned by the statute of Henry VIII. A period of limitation has now, however, been established, compounded of the length of time and the number of avoidances together, by 3 & 4 Will. IV. c. 27; the limitation, which is to bar an action of quare

impedit being that, during which three clerks in succession shall have held the benefice, all of whom shall have obtained possession thereof adversely to the right of the plaintiff, or of some person through whom he claims, provided the times of such incumbencies taken together amount to the full period of sixty years. After an adverse possession of one hundred years, although three incumbencies have not taken place, the alleged right of the claimant is completely barred.

In an action of quare impedit, the patron only, and not the clerk is allowed to sue the disturber. But, by virtue of several acts of parliament, there is one species of presentation, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation of such benefices as belong to Roman Catholic patrons, which are vested in the two universities. Besides the quare impedit, which the universities as patrons are entitled to bring, they, or their clerks, are at liberty to file a bill in equity against any person presenting to such livings, and disturbing their right of patronage, or his cestui que trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts, for the benefit of Papists, in evasion of those laws whereby this right of advowson ig vested in those learned bodies. This is a particular law, and calculated for a particular purpose: for in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation, of which he is afterwards to have the advantage. But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, which it furnishes to the owners of lay property.

CHAPTER IX.

ON INJURIES PROCEEDING FROM, OR AFFECTING THE CROWN.

I. Injuries from the crown-to the person to property-remedy by petition of right or monstrans de droit. II. Injuries affecting the crown-remedy by action by inquest of office-by scire facias, to repeal letters patentby information in the Exchequer-by quo warranto—by mandamus. HAVING in the preceding chapters considered the private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the sovereign in his several courts of justice, I proceed now to inquire into the mode of redressing

those injuries to which the crown itself is a party; which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy; or else is he sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative.

I. That the king can do no wrong, is, as we have already seen, a necessary and fundamental principle of the English constitution. Whenever therefore it happens, that, by misinformation, or inadvertence, the crown has been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign, yet the law has furnished the subject with a decent and respectful mode of removing that invasion, by informing the crown of the true state of the matter in dispute: and, as it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the sovereign's own name, his orders to his judges to do justice to the party aggrieved.

The distance between the sovereign and his subjects is such, that it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man; and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all. But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the sovereign has been deceived, and induced to do a temporary injustice.

The common law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right: which is said to owe its origin to King Edward I. 2. By monstrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the Chancery or Exchequer. The former is of use, where the sovereign is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case, upon this answer being endorsed by the sovereign, soit droit fait al partie, let right be done to the party, a commission shall issue to inquire of the truth of this suggestion: after the return of which, the attorney-general is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of