Advowson 12. M. 4 G. 2. Robinson and Tonge. In the Chancery: Payment of Upon debate it was held that an advowson in fee was real assets in the hands of the heir for payment of debts. And the decree was affirmed in the House of Lords (r). Debts. Trial of the Right of Advowson in Court, by Jus 13. If two patrons present to one and the same church by several titles, the church is become litigious; because the the Spiritual bishop knows not which clerk to admit; and it seemeth that Patronatus. the church is not less litigious, though they both present the same person (s); because when the bishop admits him as the clerk of the one, he puts the other out of possession, and consequently to his action; and the bishop becomes a disturber, if he who is put out of possession prove to have the better title (t). But if two joint tenants or tenants in common present several clerks, this doth not make the church litigious; for the bishop may admit the clerk of which he pleases; or if they do not agree and join in presenting a clerk within the six months, the bishop may collate (u). Also where one patron doth present his clerk before any other hath presented, the church is not yet litigious; therefore if the bishop doth refuse him, he is a disturber: and though another should after present, whereby the church then doth become litigious, yet that will not excuse the bishop from being a disturber, if the first patron be upon trial found to have the better title; nor can he have the benefit of lapse, though no action be brought against him, which makes it safe for the bishop to receive him that comes first. But then a question may be made, how can a church (the bishop acting thus safely for himself) ever become litigious? and how can it be truly said, that the bishop may justly refuse both clerks upon account of two several patrons making their several presentments to him, unless the presentees should happen to tender their presentments at one and the same time, which is not to be supposed? In answer to which,-It is true that if the bishop doth unjustly refuse the clerk of the true patron before any other presentment is made, although the church by another person's presenting after doth become litigious, he will not be excused (the [23] true patron prevailing at law) from being a disturber; but there is a great difference betwixt the bishop's suspending the admission and institution of a clerk, and his absolute refusal of him. A bishop is not bound instantly upon the presentment tendered to admit, if he hath other business in hand, but may appoint the clerk to repair to him at another time to receive admission and institution. And when a person is presented to him, he (r) Str. 879; Viner, Assets, (A 28); [3 Br. P. C. 556.] (s) But in Ch. Prec. 214, mortgagee and mortgagor joined in presentation, and no objection was taken on that account.-Serjt. Hill's MSS. (t) Deg. p. 1, c. 3; [1 Roll, 177.] (u) Deg. p. 1, c. 3; Co. Lit. 186 b; [Hob. 318, Sir W. Elwis v. Archbishop of York.] may take competent time to examine his sufficiency, and inquire and inform himself of his conversation. Twenty-eight days by the 95th canon, in 1603 (r). And by a hasty admission of the clerk of a disturber, the bishop might do great wrong in surprising other patrons that have right: and the law doth not so hasten the bishop's proceeding, but that he may take convenient time to examine the clerk, that other pretenders may take notice of the vacancy (y). In Hob. 317, excellent rules are given "to show how the common law hath provided for the safety of the ordinary against disturbance, if he will not exceed his office, nor maintain parts, but carry himself indifferently amongst them that pretend to the patronage of the church as he ought to do, being in a sort a judge amongst them (z)." But in case the patron feareth that the bishop will admit another clerk, or be not yet resolved of his clerk, he may enter a caveat with the bishop not to admit the clerk of any other; and though this do not so bind up the bishop that he cannot admit the clerk of another person, yet if the bishop will presume to do it without a jus patronatus, he may bring himself under several inconveniences (a). But a caveat entered during the life of the incumbent, is of no force. This was resolved in the case of Hutchins and Glover, H. 15 Ja., where the caveat was entered when the incumbent lay in extremis; and it had been declared in the spiritual court, that the institution afterwards given was void; for so is the rule of the canon and civil law, that a caveat may be entered where a person feareth a future damage: but in this particular it is of no force, because contradicted by the common law. However, where such suspicion is, that a title may probably be usurped upon an avoidance, it is a safe and advisable course to enter a caveat before the incumbent dies; which will be a restraint upon the ordinary from admitting any clerk hastily, [ 24 ] though not in law, yet in equity and prudence (b). But nevertheless an admission contrary to the caveat entered, is good in law; that is to say, the admission, institution, and induction thereupon shall stand to all intents and purposes by the rules of the common law: in the eye of which the caveat is said to be only a caution for the information of the court (like a caveat entered in Chancery against the passing of a patent, or in the Common Pleas against the levying of a fine); but that it doth not preserve the right untouched, so as to null all subsequent proceedings; nor hath it ever been determined, that a bishop became a disturber by giving institution without regard to a caveat; on the contrary, it was said by Coke and (r) Serjt. Hill's MSS. (y) Wats. c. 20; Deg. p. 1, c. 3. (z) See also Lind. 138 b, and Sir W. Jones, 4. (a) Deg. p. 1, c. 3. Dodderidge, that they have nothing to do with a caveat in the common law (c). Now the church being become litigious, the bishop in such case, in order to secure himself, ought to award a jus patronatus to inquire of the right; which is merely an inquest of office, in nature of a writ de proprietate probanda (d). And this process is part of the ancient inquisition, that we read of in our elder constitutions and records; which includes, not only an inquiry into the points immediately relating to the right of patronage, but also into the qualifications of the persons presented, and such other heads as the bishop thought it proper for him to be informed of. And this inquisition (however now grown to be occasional only, when churches happen to be litigious) seems anciently to have been issued of course, upon every presentation made, and antecedent to the admission and institution thereupon (e). It hath been a question, whether the bishop is bound to sue the jus patronatus at his own cost and peril, or only at the prayer, and at the cost of the party that prays it, or of both parties: but the better opinion seems to be, and so is the practice, that the same is to be sued at the prayer and at the cost of one of the parties that prays it, or of both the parties if they join (f). And if the bishop refuseth to award it accordingly, though he may not be sued in the spiritual court, yet he thereby brings [25] upon himself divers inconveniences: he becomes a disturber; and he hinders the lapse, if the clerk is not admitted in six months; and (as Hobart held) if such patron makes good his title by due form of law, and did not name the bishop in the quare impedit, he may have an action upon the case against the bishop, and recover the costs and damages he hath sustained by reason of a wrongful admission of the bishop, without the awarding of a jus patronatus as aforesaid (g). But if the bishop happens to admit him who upon trial appears to have the better title, then the other is without all remedy against the bishop (h). For it is necessary to show a title in the plaintiff in order to prove a tort in the bishop. But this is at the peril of the bishop (i). Also either of the contending parties may demand a jus patronatus singly (k). But in case the bishop delay to admit the true patron's clerk, he may sue a duplex querela out of the arches, to command the bishop to admit his clerk; and then, if the bishop do not admit the clerk within nine days, or the space assigned by the duplex querela, or return a legal cause why he doth it not, the metropolitan may admit the clerk in the ordinary's default (1). But the bishop may return, if the truth be so, that the church is litigious, and that he cannot admit the clerk till the right be determined in a jus patronatus; which will excuse him (m). But the surest and safest way in this case is, if the bishop delay the true patron, immediately to sue a quare impedit, and thereupon a ne admittas to the bishop; and then if the bishop, after the receipt of such writ, admit the clerk of any other person, without a verdict in a jus patronatus, the true patron may have a writ called a quare incumbravit, against the bishop, and may therein recover the presentation with damages (n). The ne admittas must be sued within six months after the avoidance; for afterwards the bishop may present for lapse (o). The jus patronatus being awarded, is to be executed according to the form of proceeding in the ecclesiastical courts, which is thus: The bishop, if he pleaseth, may sit himself as judge; but the usual way is by commission issued to his chancellor, or to [ 26 ] such other person or persons as he shall judge proper, skilled in the canon and ecclesiastical laws (p). These commissioners the bishop doth appoint to sit in the void church on a certain day; and doth decree a monition against the patrons presenting and the clerk presented, to be present there at the day appointed, to see the proceedings (q). Also the bishop is to decree, and send forth a public edict, against all having or pretending to have any interest or right of presenting to the vacant church, to appear at the day and place appointed, to show their right. And this public edict is to be affixed to the door of the void church, in time of divine service (r). And at the day appointed for this inquiry, the person or persons executing the aforesaid mandates or citations, are to make oath of the due execution thereof; or the execution of them may be certified under some authentic seal, as of the archdeacon, or commissary (s). Against which day the bishop is also to summon a jury for this purpose by way of citation; which jury is to consist of six clerks and six laymen, that live near to the void church; or of as many more as the bishop pleases, the proportion being observed of clergy and laity, that there be as many of the one sort as of the other (t). [ 27 ] When the commissioners are set, they are to give directions to open the court, and the commission is presented, and read. After which, the parties cited, and those of the jury are to be publicly called; and if any of the jury appear not, being duly summoned, they may be punished, that is to say, the clergymen by sequestration, and the laymen by excommunication, and so be compelled to appear (u). But if twelve of the jury appear, that is, six of each sort, it is sufficient (r). And if others cited appear not, they are to be pronounced contumacious; and the proceedings are to go on notwithstanding, and in pœnam contumacia of them that do not appear (y). If six clergy and six laymen appear to be of the jury, which is the competent number, they are to be sworn faithfully to inquire of the articles; and in swearing them, first a clerk, then a layman is to be sworn, till a jury of twelve or more is made up (z). Which articles are to contain the particulars about which the jury are to inquire; namely: 1. Whether the church be void, and how it became void. 2. Who presented at the last preceding avoidance, and at the two foregoing avoidances. 3. Whether the persons presenting presented in their own right. 4. In whom the inheritance of the advowson is, and who ought to present to the void turn. 5. Whether any of the clerks presented be known or suspected to be guilty of any crime, rendering him incapable of admission to the said benefice, as heresy, simony, perjury, adultery, drunkenness, or such like (a). Then the counsel and advocates of both parties are to show their respective clients' titles, and to produce their evidences, and prove the same (b). And after the evidence is given on both sides, and counsel fully heard, the jury may give their verdict at any time the same day; or if the cause be doubtful, the judge may assign them a longer time for to consider of the matter, and assign also a place where they shall give their verdict (c). And according to the verdict given, the bishops admits and institutes the person in whom the right is found. Not that he is absolutely bound to do this, or that the admission and institution of another is void in law; but this, generally speaking, is the fairest and most impartial way; and the bishop by doing otherwise, brings upon himself the inconveniences which accrue upon the refusal to award a jus patronatus (d). But suppose the jury will not agree of their verdict, and the one half be for the one patron, and the other half for the other patron; or that they refuse to give any verdict at all; or |