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ceived inftitution before the aftion brought, (as is fometimea 

 the caic,) the patron by this fuit may recover his right of 

 patronage, but not the prcfent turn ; for lie cannot have 

 judgment to remove tlie clerk, unlefs he be made a de- 

 fendant, and party to the fe.it, to hear what he can allege 

 againft it. For which rcafon it is the fafer way to nifcrt all 

 three in t\w writ. 



The writ of gunre impedit commands tlie difturbcrs, the 

 bifhop, the pfeudo-patron, and his clerk, to permit the 

 plaintiff to prefeiit a proper perfon (without Ipecifying the 

 particular clerk) to fuch a vacant church, which pertains 

 to his patronage ; and which the defendants, as he alleges, 

 do oblliuft ; and unlefs they fo do, then that they appear 

 in conn to (hew the reafon why they hinder him. 



Immediately on the fuing out of the quare impedit, if the 

 plaintiff fufp^ els that the bifhop will admit the defendant's 

 or any other clerk, pending the fnit, he may have a pro- 

 hibitory writ, called a ne admittas ; which recites the con- 

 tention begun in the king's courts, and forbids the bifhop 

 to admit any clerk whatfoever till fuch contention be deter- 

 mined. And if the bifhop doth, after the receipt of this 

 writ, admit any perfon, even though the patron's right may 

 have been found in -a jure patrnnatus, then the plaintiff, after 

 he has obtained judgment in the quare impedit, may remove 

 the incumbent, if the clerk of a Itranger, by writ oi fcire 

 facias : and fhall have a fpecial aftion againll the bifhop, 

 called a quare incumiravit ; to recover tlie prelentation, and 

 alfo fatisfaftion in damages for the injury done him by in- 

 cumbering the church with a clerk, pending the fuit, and 

 after the ne admittas received. But if the bifhop has incum- 

 bered the church by inflituting the clerk, before the ne ad- 

 mittas iffued, no quare incumbravit lies ; for the bifhop hath 

 no legal notice, till the writ of ne admittas is ferved upon 

 him. The patron is, therefore, left to his quare impedit 

 merely; which now lies (fince the (tatute of Weftm. 2.) 

 as well upon a recent ufurpation within fix monthb pafl, as 

 upon a diilurbai:ce without any ufurpation had. 



In the proceedings upon a quare impedit, the plaintiff muft 

 fet out his title at length, and prove at leaft one prefenta- 

 tion in himfelf, his anceftors, or thofe under whom he 

 claims ; for he muft recover by the ftrength of his own 

 right, and not by the vveaknefs of the defendant's : and he 

 mult alfo fhew a dilfurbance before the aftion brought. 

 Upon this the billiop and the clerk ufually dilclaim all title : 

 fave only, the one as ordinary, to admit and inftiti-ite ; and 

 the other as prefentee of the patron, who is left to defend 

 his own right. And, upon failure of the plaintiff in making 

 out his own title, the defendant is put upon the proof of 

 his, in order to obtain judgment for himfelf, if needful. 

 But if the right be found for the plaintiff, on the trial, three 

 farther points are alfo to be inquired: i. If the church be 

 full ; and, if full, then of whole prefentation : for if it be 

 of the defendant's prefentation, then the clerk is removeable 

 by writ brought in due time. 2. Of what value the living 

 is : and this in order to affefs the damages which are directed 

 to be given by the ftatiiite of Weftm. 2. 3. In cafe of ple- 

 narty upon an ufurpation, whether fix calendar months have 

 paffed between the avoidance and the time of bringing the 

 aftion : for then it would not be within the ftatute, which 

 permits an ufurpation to be divefted by a quare impedit, 

 brought infra tempus femeflre. So that plenarty is itill a 

 fufficient bar in an aClion of quare impedit, brought above 

 fix months after the vacancy happens ; as it was univerfally 

 by the common law, however early the aftion vcas com- 

 menced. 



If it be found that the plaintiff hath the right, and hath 



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commenced his aftion in due time, then he fhall have judg- 

 ment to recover th prefentation ; and, if the cliurch be full 

 by inftitution of any clerk, to remove him : unlefs it were 

 filled pendente lite by lapfe to the ordinary, he not being 

 party to the fuit ; in which cafe the plaintiff lofps his pre- 

 fentation pro hac -vice, but ftiall rec-over two years' f 11 value 

 of the church from the defendant, the pretended patron, as 

 a fatisfaftioii for the turn loft by his difturbance : or, jn cafe 

 of infolvency, the defendant fhall be imprifoi 1 d for two 

 years. But if the church remains Itiil void at the end of the 

 fuit, then whichever party the prefentation is found to be- 

 long to, whether plaintiff or defendai t, fhall have a writ 

 direfted to the bifhop ad admlltendum ckricum, reciting the 

 judgment of the court, and ordering him to admit and in- 

 ftitute the clerk of the prevailing party ; and, if upon this 

 order he does not admit him, the patron may fue the bifhop 

 in a writ of quare non admift, and recover ample fatisfaftion 

 in damages. 



Befides thefe pofleffury aftions, there niay be alfo had 

 a writ of right of advoiufon, which refembles other writs 

 of right : the only dilUnguifliing advantage now attending 

 it being, that it is more conclufive than a quare impedit ; 

 fuice to an aftion of quare impedit a recovery had jn a writ 

 of right may be pleaded in bar. 



There is no limitation with regard to the time within 

 which any aftions touching advowfons are to be brought ; at 

 leaft none later than the times of Richard I. and Henry III. : 

 for by ftatute i Mar. ft. 2. c. 5. the ftatute of limitations, 

 32 Hen. VIII. c. 2. is declared not to extend to any writ 

 of riglit of advowfon, quare impedit, or alTife of darrein pre- 

 fentment, or jus palronatus. 



In a writ of quare impedit, which is almoft the only real 

 aftion that remains in common life, and alfo in the affife of 

 darrein prefeiitment, and writ of right, the patron only, and 

 not the clerk, is allowed to fue the difturber. But, by 

 virtue of feveral afts of parliament, there is one fpecies of 

 prefentations, in which a remedy, to be fued in the tem- 

 poral courts, is put into the hands of the clerks prefented, 

 as well as of the owners of the advowfon. We mean the 

 prefentation to fuch benefices, as belong to Roman Ca- 

 tholic patrons ; which, according to their feveral counties, 

 are vefted in and fecured to the two univerfities of this 

 kingdom. And particularly by the ftatute of 12 Ann. 

 ft. 2. c. 14. ^ 4. a new method of proceeding is provided; 

 •viz. that, befides the writs of quare impedit, which the uni- 

 verfities as patrons are entitled to bring, they, or their 

 clerks, may be at liberty to file a bill in equity againft any 

 perfon prefenting to fuch livings, and diflurbing their right 

 of patronage, or his cefluy que trufl, or any other perfon 

 whom they have caufe to fufpeft ; in order to compel a dif- 

 covery of any fecret trufts, for the benefit of Papitts, in 

 evafion of thofe laws whereby this right of advowfon is 

 vefted in thofe learned bodies: and alio (by the ftatute 

 II Geo. II. c. 17.) to compel a difcovery ivhether any 

 grant or conveyance, faid to be made of fuch advowfon, 

 were made bona fide to a Proteff ant purchafer, for the be- 

 nefit of Proteftants, and for a full confideration ; vrithout 

 which rcquifites, every fuch grant and conveyance of any ad- 

 vowfon or avoidance is abfolutely null and void. Blackft. 

 Com. b. iii. 



Quare incumbravit, a writ whicli lies againft the bifhop, 

 who, within fix months after the vacancy of a benefice, con- 

 fers it on the clerk of any one, while two perfons are con- 

 tending at law for the right of prefenting. This writ lies 

 always depending the plea. See the preceding article, 

 Prfsemtation, Assise of darrein prefentment, &c. 



Quare 



