CH. XXIV.

PART V. if the times of such incumbencies taken together shall amount to the full period of sixty years; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with the times of such incumbencies will make up the full period of sixty years."

3 & 4 Wm. IV.

Section 32.

Section 33.

"Provided always that when on the avoidance after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentation, or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty, or the ordinary, by reason of a lapse, such last-mentioned clerk shall be deemed to have obtained possession adversely to the right of presentation, or gift of such patron as aforesaid; but, when a clerk shall have been presented by his Majesty upon the avoidance of a benefice, in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this Act, be deemed a continuation of the incumbency of the clerk so made bishop."

"In the construction of this Act every person claiming a right to present to or bestow any ecclesiastical benefice as patron thereof by virtue of any estate, interest or right which the owner of an estate tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suit shall be limited accordingly."

"No person shall bring any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice, adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of pre

CH. XXIV.

sentation or gift, held or derived under the same title, PART V. unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share or right, held, or derived under the same title."

These sections did not at first apply to Ireland, their operation being excluded by sect. 44, but they were extended to Ireland by the 1st and 2nd sections of 6 & 7 Vict. c. 54; the part of sect. 44, which provided that those sections should not extend to Ireland, was repealed by 37 & 38 Vict. c. 35, and the 1st and 2nd sections of 6 & 7 Vict. c. 54 have been repealed by 54 & 55 Vict. c. 67.

The 3rd section of 6 & 7 Vict. c. 54 interprets the meaning of sects. 30-32 of 3 & 4 Wm. IV. c. 27, and is as follows:

c. 54, s. 3.

"And whereas doubts have been entertained whether Limitation of bishop's the several periods by the said Act (i.e. 3 & 4 Wm. IV. right. c. 27) limited for bringing any quare impedit, or other 6 & 7 Vict. action, or any suit, to enforce a right to present to or bestow any ecclesiastical benefice as the patron thereof, apply to the case of a bishop claiming to have right to collate to or bestow any ecclesiastical benefice in his diocese, and it is expedient that all such doubts should be removed; be it therefore enacted that the several periods limited by the said Act, or by this Act, for bringing any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, shall apply to the case of any bishop claiming a right as patron to collate to or bestow any ecclesiastical benefice, and that such right shall be extinguished in the same manner and at the same periods as the right of any other patron to present to or bestow any ecclesiastical benefice, provided always that nothing herein contained shall be deemed to affect the right of

PART V. any bishop to collate to any ecclesiastical benefice by reason of lapse."

CH. XXIV.

Extinction of title.

Possession

must be

adverse.

The effect of these sections is to determine the period after which no action can be brought to recover an advowson, and by the 34th section the right to the advowson is, at the end of the same period, finally extinguished.

Sect. 30 introduces the old doctrine of adverse possesof benefice sion, and time under that section will not run against a patron's right to present, from the mere fact of a benefice being in the hands of a clerk who did not obtain possession from such patron or his predecessor, but only if such possession was obtained adversely to the patron's title. This is necessary from the nature of the case, for if an advowson be vested in two or more co-parceners, joint tenants, or tenants in common, and a partition be made between them, each of them is separately seised of a right to present in turn independently of the rest (1), and such presentation is in no way inconsistent with the right of the other or others to present in turn subsequently. But, although a presentation by one coparcener, joint tenant or tenant in common, in turn, is never considered adverse to the right of the partner in title, and although under the 30th section a presentation adverse to one entitled to present on any vacancy is not adverse to the right of another person entitled to present, yet the 33rd section, providing the longer period of limitation, makes a presentation adverse to one of such parties have the same effect as if it had been adverse to all. The time from which the statute begins to run on the occasion of an adverse presentation is the time when the clerk obtains possession of the benefice, and this, it seems, is the time of induction, which is the act by which the clerk is made complete incumbent (2).

Time runs from induction.

PART V.

CH. XXIV.

If a patron neglect for six months to present to a benefice, the right to present for that turn lapses to the ordinary. If the ordinary neglect to fill the church within Lapse. another period of six months, the right lapses to the metropolitan; and if he be guilty of the same neglect for a like period, the right lapses to the Crown; at least these are the three stages through which a right of presentation is said to lapse, as the law is generally laid down (1).

Sect. 31 provides that a presentation by the Crown or the ordinary on the occasion of a lapse, after the incumbency of a clerk presented by a usurper, shall be considered adverse to the right of the patron, and though it does not mention presentation by the metropolitan eo nomine when the right has lapsed to him, yet such a case is, no doubt, within the section, for the metropolitan is the superior ordinary of the whole province as being the guardian of the spiritualities (2).

tation by the Crown

in room of a bishop.

Where an avoidance of a living is caused by the Presenremoval of an incumbent to a bishopric, the Crown has a prerogative right to present for that turn, even though the right be not exercised before the death of the incumbent so removed (3). Such a presentation is by sect. 31 not to be reckoned a presentation adverse to the right of the patron; but the incumbency of the clerk so presented is to be deemed a continuation of the last incumbency, whether the last incumbent obtained possession adversely to the title of the rightful patron or not.

There are other cases, however, in which the right of Presentation by presentation passes to the Crown, as by forfeiture for the Crown simony (4), or by reason of the outlawry of the patron (5), on for

(1) See Watson, The Clergyman's Law, c. 12, pp. 114, 115;

Comyns' Dig. Esglise, H. 11, 12; Dyer, 348a.

(2) See 2 Coke's Inst. 398; Watson, c. 12, p. 114.

(3) See Rex v. Archbishop of Armagh, 2 Str. 837.

(4) See 31 Eliz. c. 6, s. 4.

(5) Com. Dig. Esglise, H. 6; Watson, The Clergyman's Law, c. 11 p. 104. See post, Part VIII. Ch. II.

CH. XXIV.

PART V. which are not specially mentioned in the statute; and as to these it may be observed that, although the presentation by the Crown in those cases is according to law and not a usurpation of the patron's right, yet it is made against the patron's will, and in prejudice of his general right to present in respect of the advowson vested in him, and therefore the clerk presented by the Crown may be said, in some sense, to obtain possession adversely to the patron's right.

Right of presentation when patron is a Papist.

Remainders after estates tail.

It may be remarked that the statute which gives the right of presentation to the Crown in a case of simony expressly limits such right to that "one turn only."

Where the right to present goes to either of the universities for the reason that the patron is a Papist, the presentation does not seem adverse to the patron's right; for the universities have no title to such presentation except that conferred on them by statute, and that is only a right to present during such time as the patron shall be and remain a Papist (1), so that their right depends upon the fact that a particular person is the patron, and their presentation is an assertion of the title being vested in such person.

By the 32nd section a person claiming an estate in an advowson which the owner of an estate tail might have barred, is to be deemed to claim through the person entitled to such estate tail. The effect of this section is that a person entitled in remainder after an estate tail is barred by presentations adverse to a tenant in tail who had such power, or those claiming through him. But, as there is no provision that a remainderman is to be deemed to claim through a tenant in tail who could not have barred the estate in remainder, it seems that if such tenant in tail alien the estate, and create a base fee, the persons presenting in right of such base fee do not present

(1) 3 Jac. I. c. 5; 1 W. & M. Sess. 1, c. 26; 13 Anne, c. 13 (also called 12 Anne, Sess. 2, c. 14): 11 Geo. II. c. 17,