or in fee-tail, as before is said: The same shall be observed in presentments made unto churches, being of the inheritance of wives, what time they shall be under the power of their husbands, which must be aided by this statute by the remedy aforesaid. Also religious men, as bishops, archdeacons, parsons of churches, and other spiritual men shall be aided by this statute, in case any having no right to present do present unto churches belonging to prelacies, spiritual dignities, parsonages, or to houses of religion, what time such houses, prelacies, spiritual dignities, or parsonages be vacant. "Neither shall this act be so largely understood that such persons, for whose remedy this statute was ordained shall have the recovery aforesaid surmising that guardians of heirs, tenants in tail, by the curtesy, tenants in dower, for term of life, or for years, or husbands, which faintly have defended pleas moved by them, or against them; because the judgments given in the king's courts shall not be adnulled by this statute, the judgment shall stand in his force until it be reversed in the court of the king as erroneous, if error be found; or by assise of darrein presentment, or by inquest by a writ of quare impedit, if it be passed, or be adnulled by attaint or certification, which shall be freely granted. And from henceforth one form of pleading shall be observed among justices in writs of darrein presentment and quare impedit, in this respect, 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. (d). "And where it chanceth that after the death of the ancestor of him that presented his clerk unto a church, the same advowson is assigned in dower to any woman, or to tenant by the curtesy, which do present, and after the death of such tenants the very heir is disturbed to present when the church is void; it is provided that from henceforth it shall be in the election of the party disturbed, whether he will sue a writ of quare impedit or of darrein presentment. The same shall be observed in advowsons demised for term of life, or years, or in fee-tail. "And from henceforth in writs of quare impedit and darrein presentment, damages shall be awarded, that is to wit, if the time. of six months pass by the disturbance of any, so that the bishop do confer to the church, and the very patron loseth his presentation for that time, damages shall be awarded for two years' value of the church. And if the six months be not passed, but the presentment be deraigned within the said time, then damages shall be awarded to the half year's value of the church. And if the disturber have not whereof he may recompense damages, in case where the bishop conferreth by lapse of time, he shall be punished by two years' imprisonment. And if the advowson be (d) The part omitted here comes in at p. 290, supra. When the deraigned within the half year, yet the disturber shall be punished by the imprisonment of half a year. "And from henceforth writs shall be granted for chapels, prebends, vicarages, hospitals, abbies, priories, and other houses which be of the advowsons of other men that have not been used to be granted before. And when the parson of any church is disturbed to demand tithes in the next parish by a writ of indicavit, the patron of the parson so disturbed shall have a writ to demand the advowson of the tithes being in demand; and when it is deraigned, then shall the plea pass in the court christian, as far forth as it is deraigned in the king's court." That where any having no Right to present, had presented.]— church is full. By this it appears that no plenarty does put the patron that has title to present out of possession, but only plenarty by presentation: but plenarty by collation does put him that had right to collate out of possession (e). Had presented to any Church.]-This is intended of a church presentative (f). Whose Clerk was admitted.]-Albeit that admitted in its proper sense is, when the bishop upon examination finds him able, yet here it is taken for institution; because that before institution, the rightful patron is not put out of possession. And it is to be observed, that by the institution, the church, as to all common persons, is full as to the spiritualty, that is, the cure of souls, which the bishop by the act of institution has committed to him; but before induction the parson has not the temporalities belonging to his rectory (g)." But the church is not full against the king before induction : because in the king's case plenarty is to be intended of a full and complete plenarty, as well to the temporalities as to the spiritualty (g). And if there be an usurpation upon the king, by a complete plenarty, the king cannot present to the church before he has removed the incumbent by quare impedit, lest contentions might grow in the church between the several claimers of the benefice, to the disturbance or hindrance of divine service; and this was by the common law (g). But in that case, the king is only put out of possession as to the bringing of an action; but the inheritance of the advowson is not devested out of him (g). He that was very Patron could not recover his Advowson.]—At the common law, if a stranger had presented his clerk, and he had been admitted and instituted to a church, whereof any subject had been lawful patron: the patron had no other remedy to recover his advowson, but a writ of right of advowson, wherein the incumbent was not to be removed. And so it was at the common law, if an usurpation had been had upon an infant or feme covert, having an advowson by descent, or upon (e) 1 Inst. p. 344; 2 Inst. p. 357. (ƒ) 2 Inst. p. 357. (g) Ibid. tenant for life, or the like; the infant, feme covert, and he in the reversion, were driven to their writ of right of advowson; for at the common law, if the church were once full, the incumbent could not be removed, and plenarty generally was a good plea in a quare impedit or assize of darrein presentment, and the reason of this was, to the intent that the incumbent might quietly intend and apply himself to his spiritual charge; and the law did intend, that the bishop that had cure of souls within his diocese, would admit and institute an able man for the discharge of the spiritual function, and that the bishop would do right to every patron within his diocese. But at the common law, if any had usurped upon the king, and the presentee had been admitted, instituted, and inducted (for without induction the church had not been full against the king), the king might have removed him by quare impedit, and have been restored to his presentation; for therein the king has a prerogative, that nullum tempus occurrit regi; but the king could not present, for the plenarty barred him of that, neither could the king remove him any way but by action, to the end the church might be the more quiet in the meantime; neither did the king recover damages in his quare impedit at the common law. But this statute has altered the common law in all these cases (h). It is provided, that such Presentments.]-The words before- Cases to going, to which these have reference, extend only to heirs in which statute applies. ward; but these words are to be expounded of such presentments as are within the same mischief: and therefore this act extends to heirs of advowsons, though they may be out of ward (i). Shall not be so prejudicial to the right Heirs.]-This act relieves only infants that have advowsons by descent; for if an infant has an advowson by purchase he remains at the common law, and is not remedied by this act (k). And this being a law that suppresses wrong, and advances right, does bind the king, though he be not named in the act (k). Or to them unto whom such Advowsons ought to revert after the Death of any Persons.]-That is, to those heirs that have the reversion of the advowson by descent; but the heir of him in the remainder is not within the purview of this act (k). After the Death of any Persons.]-That is, of tenant by the curtesy, tenant in dower, or otherwise for life, or for years, or in fee-tail (k). The same shall be observed in Presentments made unto Churches being of the Inheritance of Wives.]-But if a feme covert has an advowson by purchase, and not by inheritance, she is not within the remedy of this act (7). Also Religious Men, as Bishops, Archdeacons, Parsons of (h) 1 Inst. p. 344; 2 Inst. p. 356; 3 Black. Com. p. 244. (i) 2 Inst. p. 358. (k) Ibid. (7) 2 Inst. p. 359. Plenarty what. Damages. Churches, and other Spiritual Men shall be aided by this Statute.]— By this presentation and usurpation in time of vacation, albeit the freehold and inheritance is in abeyance; yet the usurper gains a fee-simple in the advowson; like as if one enters into lands during the vacation, and claims the same as his inheritance, he gains an inheritance by wrong. But yet as the dying seised of lands in that case during the vacation shall not take away the entry of the successor, no more shall the usurpation during the vacation take away the right of presentation when the church becomes void; and if he be disturbed, he shall have his quare impedit (m). The Plea shall not fail by reason of the Plenarty.]-By the common law, as hath been said, plenarty before the writ of quare impedit brought was a good plea, but plenarty hanging the writ was no bar at the common law; but now by this statute plenarty is no plea in a quare impedit or darrein presentment, unless it be by the space of six months before the quare impedit brought; for if the rightful patron bring his action within the six months, it is maintainable by this statute; which short purview does remedy many mischiefs at the common law (n). But this act does not bind the king; for plenarty by the space of six months is no bar against him, for he may have his quare impedit when he will; and that, whether he claims in the right of his crown, or in the right of a subject (o) as in right of a ward (o). So that the Writ be purchased within Six Months.]—And because this computation does concern the church, it is great reason that it shall be made according to the computation of the church, which churchmen do best know; and therefore the computation shall be made according to the calendar for one half year, and not accounting twenty-eight days to the month (0). The very Heir is disturbed to present.-Hereby the heir in reversion is provided for, and not the lessor himself. And albeit tenant by curtesy, tenant in dower, tenant for life, or tenant in tail presented last; yet the heir to whom the reversion falls in possession, shall have by this branch an assise of darrein presentment, albeit the heir or his ancestor did not immediately present before (p). Damages shall be awarded.]-Before the making of this act, the plaintiff in a quare impedit recovered no damages, lest any profit the patron should take should savour of simony, which the common law did detest. And this is the cause that the king in a quare impedit recovers no damages; because he could recover none by the common law, and the king is not within the purview of this clause (g). So that the Bishop do confer to the Church.]-Albeit the bishop (m) 2 Inst. p. 359. (n) 2 Inst. p. 360. (0) Ibid. (p) 2 Inst. p. 361. 2 Inst. has not collated, yet if he has the right of collation, the plaintiff shall, if he will, recover double damages within the meaning of this act. But if, notwithstanding the bishop's title to collate, the church remaineth void, the plaintiff may recover his presentation; and if he does, the damages shall be only for half a year; in which case he hath his election, either to lose his presentation and have double damages, or to have his presentation with single damages ("). For Two Years' Value of the Church.]-And this shall be accounted according to the very true value, as the same may be letten (s). Shall have a Writ to demand the Advowson of the Tithes.]-By Consequential the common law, if the incumbent of one patron demanded remedies. tithes against the incumbent of another patron, the writ of indicavit did lie; for that the right of the patronage should come in question; for by the presentation of the patron, his incumbent is to have the tithes, which are the profits of the church. And in a writ of right of advowson, the patron used to allege the esplees (or profits) in his incumbent in taking of the great and small tithes; and therefore if the right of tithes came in question, that concerned the right of advowson, the writ of indicavit did lie (t). The mischief before this statute was, that seeing the right of tithes could not be tried between the two persons after the indicavit granted, the person prohibited was without remedy for trial of the right of tithes; and therefore this act does give the patron, whose clerk is prohibited, a writ of right of advowson of tithes; and if the right be tried for the demandant, the cause shall be removed into the court christian (u). But what if the patron hath but an estate for life, so as he cannot have this writ of right of advowson; what remedy shall be had for trial of the right of tithes in this case? It seems that by construction of this statute, the defendant in the indicavit appearing upon the attachment, shall plead to the right of the tithes in the king's court, or otherwise he shall be without remedy (u). When a stranger that has no right presents to a church and Usurpation. his clerk is admitted and instituted, he is said to be an usurper, and the wrongful act that he has done is called an usurpation. This is the definition given by Lord Coke; and with regard to the first step towards an usurpation which he there mentions, viz., presenting, it is to be observed, that a presentation made by a stranger, if it be void in law (as in the case of simony, or of a presentation to a donative, or to a church that is full), (r) 2 Inst. p. 362. In such case no damages were given. See Holt v. Holland, 3 Lev. p. 59; and Serjt. Hill's MSS. (s) 2 Inst. p. 363. |