by him who had the nomination to a church in the presentation of an abbot, which came to the king, and he presented a clerk, without any nomination, the quare impedit was against the incumbent alone, as the king cannot be a disturber. (')

It was formerly doubted whether the patron who is the disturber ought to be named in the writ, as the naming him seems immaterial; besides that the incumbent, who is the disturber, is always in possession, and is easily known, but it may be difficult to find out who presented him; but the law now is, that if the patron is not named in the writ, the incumbent may plead it in abatement, though the ordinary cannot have that plea, because his acts do not depend on the patron's rights. (2)

The following advice, by a most learned judge, seems very necessary to be attended to on this subject:

"I advise a plaintiff in quare impedit to name no more defendants than needs must; and so if the church be once full of presentation, so that there is no danger of the lapse, it is in vain to name the ordinary, and so to arm him with a

(1) Dyer's R. 48. a.

(2) Sir W. Elvis v. The Archbishop of York, Hob. R. 316. Brickhead v. The Arch

bishop of York, Hob. R. 200. Sir George Savill v. Thornton, Cro. Jac. 651.

plea, who can now do no more hurt or good, but only to be answerable to the damages which the patron and incumbent (which two must needs be named) will be sufficient to answer.

"But if the church be not full, but stand only upon disturbance, then you must name the ordinary, or else he will collate (hanging the suit) by lapse; whereas if you name him, he must either disclaim, and then you may have judgment against him, or else he must plead and allow himself a disturber, and then he can have no lapse. But if he disclaim, and the plaintiff will not take his judgment, but maintain him a disturber, and that be found against the plaintiff,I hold (as I have heretofore holden), that the bishop's collatæ hanging the suit, shall not be removed; for he can have no judgment nor writ, non obstante reclamatione episcopi, because as against him he is barred.

"Next in this case I advise him to name no more disturbers than are likely to have reasonable titles; for every disturber will make a several title, and traverse, or confess and avoid the plaintiff's title, whether he himself have good title or not; so it were better not to name them: for they can but present, and get their clerks in hanging the suit, which will be removed by the writ to the bishop if their title be not good; but such as have reasonable titles are fit to be named,

that their titles may be discussed directly at the mise of the parties, and not left to an after-game, the title to be tried between the incumbent that comes in hanging the writ, and the clerk that is admitted upon the writ to the bishop. For I hold it clear that the bishop cannot refuse to admit the clerk of the party that recovers, and return a plenarty upon another's presentation and right; for that is the way to confound all: for if that return be false, it cannot be traversed, for there is neither party nor day in court to counter-plead. And if you say, the writ is only non obstante reclamatione of the parties, and this is a stranger, I answer, that it is clear that the clerk that came in hanging the suit, by the presentation of them that have no right, shall be removed. And shall the ordinary (that is not received to plead to the title of patronage, hanging the suit wherein he is made a defendant,) make himself a judge of titles after judgment (whereunto he is a stranger), to make it fruitless?

you say, that he that hath recovered may remove the clerk by scir. fac., I answer, that that prevents not the abuse of an ordinary, if the return be false, which it may be, because, either there is no plenarty, or not upon better title as he returns, whereupon there is no answer.

“And again, it is unjust to put one to a double suit, where the satisfying of the writ is but exe

Where a quare impedit does not lie.

But if his adhurts him not,

cutio juris, quæ non habet injuriam, to give him
possession according to his right.
versaries' right be the better, it
but enables this clerk to try his right, which
without this admittance he could not. As in
the case of Copyholders' admittance works." (')

The grantee of the next avoidance cannot have this writ for a disturbance by a bishop's collating without a title, for want of notice in the life of the grantor, where the collation was before the grant, for the grantor who had a right to a quare impedit had but a thing in action, which could not be granted over, as nemo potest alicui transferre aliquod remanente in actione, and this collation was good against every body but the true patron, and would be good against him but for the default of notice, for which the patron had a remedy, but not his grantee; (2) for although a collation is but a provision for the celebration of divine service, and no plenarty by collation can be pleaded against the true patron, yet a plenarty by collation did at common law put him who had a right to collate out of possession. (3)

(1) Per Sir H. Hobart. In Sir William Elvis v. The Archbishop of York, 320.

(2) 3 Mal. Q. I. 149. Windsor's case, 5 Rep. 102. a.

50.

(3) Boswel's case, 6 Rep.

Nevertheless, executors may have a quare impedit for a disturbance in the time of the testator by the equity of the statute of 4 Edw. III.

Again, if there be a presentment to an appropriation by a stranger, and the clerk is inducted, yet the patron of the appropriation cannot have a quare impedit, because he cannot be put out of possession. (1) Nor as it is said, does it lie of an archdeaconry, as it is not local, but only a matter of function, but on the other hand, an archdeacon has locum in choro. (2)

patronatus.

Where a person presents his clerk to the Writ of jure bishop within the six months, and another presents his clerk, so that the church becomes litigious; at the desire of the parties the bishop may issue a writ called de jure patronatus, to enquire to whom the right of patronage belongs. (3)

This writ may issue out of chancery to the ordinary, who is to make inquisition thereon, and who should admit that person in whom the right is found by the verdict, and certified to be by the commissioners, although it be even found and certified against the true patron, as the ordinary will be thus excused, and no disturber.

(1) Smalwood v. The Bi- | shop of Coventry, Cro. El.

207.

(*) Smalwood v. Marsh,

Cro. El. 141. and 207. 1 Leon.
R. 205.

(3) Vid. ch. 7. p. 168.