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piration of two years from the date at which it became PART V. payable.

The 29th section of 3 & 4 Wm. IV. c. 27 operates, like the 1st section of 37 & 38 Vict. c. 57 (formerly the 2nd section of 3 & 4 Wm. IV. c. 27), by barring the right to bring an action or make a distress at the end of a certain period after the time when that right accrues; and the time when the right is to be deemed to accrue in each particular case must be determined by reference to the earlier sections of the Act 3 & 4 Wm. IV. c. 27, and to sect. 2 of 37 & 38 Vict. c. 57 (1). And it seems that the provisions as to acknowledgments contained in the 14th section of 3 & 4 Wm. IV. c. 27, will also be applicable to actions governed by the 29th section. When, by virtue of the 29th section, the remedy by action or distress is once taken away, the whole right to the inheritance in the land or rent is extinguished by the 34th section.

CH. XXIII.

property

By the Ecclesiastical Commissioners Act, 1840 (2), all Church the estates of deaneries and canonries which were not in lay suspended by the Act were, subject to the rights of hands. existing holders, vested in a lay body, viz. in the Ecclesiastical Commissioners. Sect. 57 of the Act provided that the Ecclesiastical Commissioners, "for the purpose of obtaining possession" of the property vested in them by the Act, should "have and enjoy all rights, powers and remedies, at law and in equity, which belonged or belong or would belong or have belonged to the holder of the deanery," &c., in respect of which the property in question vested in the Commissioners. In the case of Ecclesiastical Commissioners v. Rowe (3), a question arose as to the effect of sect. 57. In that case an allotment under an Inclosure Act was made in 1818 in respect of premises held under a lease from a dean. The lease was renewed from time to time, but the allot

(1) Archbishop of Dublin v. Lord Trimleston, 12 Ir. Eq. R. 251.
(2) 3 & 4 Vict. c. 113.
(3) 5 App. Cas. 736.

CH. XXIII.

PART V. ment was not included in the renewals, and after 1821 the allotment was possessed adversely to the right of the dean. The dean died in 1854, never having claimed the allotment, and the estates of the deanery then became vested in the Ecclesiastical Commissioners. In 1877 the Commissioners brought an action to recover possession of the allotment. It was held by the House of Lords that, the right of action having accrued to the dean during his lifetime, sect. 57 preserved to the Commissioners the rights which the dean had during his lifetime, and therefore that the limitation in respect of the property in question was that provided by sect. 29, and that the Commissioners were not barred. Lord Selborne expressed an opinion that, when once the Commissioners had gained possession of any land vested in them by the Act, sect. 29 no longer applied to them.

In the case of the Irish Land Commission v. Grant (1), where property belonging to an ecclesiastical corporation sole had been vested in a lay body by an Act (2) which contained no such provision as sect. 57 of the Ecclesiastical Commissioners Act, 1840, the House of Lords held that the period of limitation applicable to the lay body for the recovery of tithe rent-charge formerly belonging to an ecclesiastical corporation sole was twenty years, and that sect. 29 of 3 & 4 Wm. IV. c. 27 had no application.

(1) 10 App. Cas. 14.

(2) 32 & 33 Vict. c. 42.

CHAPTER XXIV.

LIMITATION OF RIGHT TO RECOVER PRESENTATIONS AND

ADVOWSONS (3 & 4 WM. IV. c. 27, ss. 30, 31, 32, 33).

CH. XXIV.

By the old common law, if a stranger usurped a patron's PART V. right of presenting to a living, and the clerk presented by the stranger was instituted, the patron's right to the presentation for that turn was lost, and could not be recovered by an action of quare impedit, as the church was full by the act of the usurper (1). Moreover, if the stranger's presentee was inducted, the patron's possession of the advowson was displaced, and could only be recovered by a real action called a writ of right of advowson (2).

To remedy this it was enacted by the statute West. 2, 13 Ed. I. 13 Edwd. I. c. 5, as follows:

...

"In writs of darrein presentment and quare impedit . if the defendant allegeth plenarty of the church of his own presentation, the plea shall not fail by reason of the plenarty, so that the writ be purchased within six months, though he cannot recover his presentation within the six months."

If the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron had no other means of recovering the inheritance of the advowson but by the hazardous process of a writ of right. To remedy this the statute 7 Anne c. 18 was passed, which enacted that no usurpation upon (1) Rogers' Eccl. Law, 21; Keilwey, 88.

(2) Rogers' Eccl. Law, 22.

c. 5.

CH. XXIV.

PART V. any avoidance should displace the estate or interest of any patron, or turn it to a right, but that such a patron might present or maintain a quare impedit upon the next avoidance, notwithstanding such usurpation.

Right to presenta

in six months.

The old action of quare impedit is now abolished (1), but an analogous action may still be brought which would seem to bear the same relation to the old action of quare impedit, that the present action to recover possession of land bears to the old action of ejectment (2). The effect of these enactments is, that, if a stranger tion barred usurps a presentation, the rightful patron can recover the benefice by an action analogous to the old action of quare impedit, provided he pursue his remedy within six months, which period is calculated from the institution of the usurper's presentee (3); but, if the patron allows six months to pass without bringing his action, his right of presentation is lost for that turn without remedy. But the usurper gains no right to the advowson, nor anything more than the benefit of a single presentation (4).

Title to advowsons.

Where the mortgagor of an advowson, who was equitably entitled to present to the benefice, filed a bill to compel the presentee to resign, it was held that the bill was as much within the limitation of the statute Westm. 2nd, as a quare impedit, and the bill, having been brought seven months after the institution of the presentee, was dismissed (5).

Before the Act 3 & 4 Wm. IV. c. 27, in the words of Sir William Blackstone (6), there was "no limitation with regard to the time within which any actions touching

(1) See ante, p. 412.

(2) See R. S. C. 1883, App. A. Part III. Sec. IV.; Whitehead's Church Law, p. 229.

(3) Keilwey, 88.

(4) Blackst. lib. 3, c. 16, 1st ed. Vol. III. p. 244.

(5) Gardiner v. Griffith, 2 P. Wms. 404. And see Boteler v. Allington, 3 Atk. 453.

(6) Lib. 3, c. 16, 1st ed. Vol. III. p. 250.

CH. XXIV.

advowsons" were "to be brought, at least none later than PART V. the times of Richard I. and Henry III.; for by statute 1 Mary, sess. 2, c. 5, the Statute of Limitations 32 Henry VIII. c. 2, is declared not to extend to any writ of right of advowson, quare impedit, or assize of darrein presentment, or jus patronatus. 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.” Sir William Blackstone suggested that, although a limitation would be improper with respect only to the length of time, yet a limitation might be established with respect to the number of avoidances, or rather a limitation compounded of the length of time and the number of avoidances together; as, " for instance, if no seisin were admitted to be alleged in any of these writs of patronage, after sixty years and four (1) avoidances were past" (2). The law, as above stated, seems to have been substantially the same in Ireland (3).

This suggestion of Sir William Blackstone's was adopted by the Legislature and embodied in the Act 3 & 4 Wm. IV. c. 27, sects. 30, 31, 32 and 33 of which are as follows:

"No person shall bring any quare impedit, or other action, or any suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice as the patron thereof, after the expiration of such period as hereinafter is mentioned (that is to say), the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims,

(1) "Three" in later editions.

(2) Blackst. Com. lib. 3, c. 16, 1st ed. Vol. III. p. 251.
(3) See 10 Car. 1 Sess. 2 Ir. c. 6.

3 & 4

Wm. IV,

c. 27, s. 30

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