plaintiff to present a fit person (without specifying whom) to such a vacant church which he claimed to be in his gift, and his presentation to which the defendants unjustly hindered; and unless they so did, then to appear in court on such a day, to show why they hindered him ( p). But by the Common Law Procedure Act, 1860, it was enacted, that no quare impedit should be brought, after the commencement of that Act, in any court whatsoever; but that, where a quare impedit would lie at the date of that statute, either in a superior or in any other court, an action might be commenced by writ of summons, issuing out of the Common Pleas, in the same manner and form as the writ of summons in an ordinary action; and upon such writ should be endorsed a notice that the plaintiff intends to declare in quare impedit (q). And by the same Act, the service of such writ, the appearance of the defendant, the proceedings in default of appearance, the pleadings, judgment, execution, and all other proceedings and costs upon such writ, were made subject to the same (p) "Immediately on the suing "out of the quare impedit," says Blackstone (vol. iii. p. 248), "if the plaintiff suspects that the bishop "will admit the defendant or any "other clerk pending the suit, he may have a prohibitory writ, "called a ne admittas," and "if the "bishop doth, after the receipt of "this writ, admit any person, even "though the patron's right may "have been found in a jus patro"natûs, then the plaintiff, after he "has obtained judgment in the quare impedit, may remove the "incumbent, if the clerk of a "stranger, by scire facias, and "shall have a special action against "the bishop, called a quare incum"bravit, to recover the presenta"tation, and also satisfaction in VOL. III. "damages for the injury done him "by incumbering the church with a clerk pending the suit, and after "the ne admittas received." The quare incumbravit, however, was a real action, and was abolished by 3 & 4 Will. 4, c. 27; and it would seem that there is no necessity for a ne admittas, where all proper parties have been made defendants in the quare impedit; for if the bishop be a defendant, no lapse can occur pendente brevi, (Wats. C. L. 112;) and if the clerk be defendant, then, though he was admitted prior or pending the quare impedit, he is removed by the mere effect of the judgment in that action. (Ibid. 289, 290.) (4) 23 & 24 Vict. c. 126, s. 26. Ꭱ Ꭱ rules and practice, as nearly as might be, as the proceedings in an ordinary action (r). The plaintiff in this action must, in his statement of complaint, show a title in himself or his ancestors, or those under whom he claims, an actual presentation under that title, and a disturbance before the action brought (s). Upon this, the bishop and the clerk usually disclaim all title, save only, the one as ordinary to admit and institute, and the other, as presentee of the patron; who is left to defend his own right (t). Indeed it was a rule at the common law, that neither the ordinary nor clerk were at liberty to plead to the right of patronage, as neither of them had anything therein; but by 25 Edw. III. st. 3, c. 7, the ordinary may now do so, provided he has himself collated by lapse, and the clerk, if he has been collated, or presented and instituted (u); that is, they may respectively defend their own right so to collate, or be instituted. Or if they mean to deny that they have obstructed the presentation, they may each state by way of defence the general issue ne disturba pas (x); and as this does not deny the right of the plaintiff, it entitles him, so far as these defendants are concerned, to immediate judgment to recover his presentation; though he has also the option of maintaining, if he thinks fit, that a disturbance has in fact been committed, which, if proved, will give him a right to recover damages. The bishop may also defend himself on the ground that the clerk presented by the (r) 23 & 24 Vict. c. 126, s. 27. The provisions of the Common Law Procedure Acts of 1852 and 1854, in particular, were made applicable to such writ, pleadings and proceedings. The rules of procedure annexed to the Judicature Act, 1873, contain no special reference to a quare impedit. (8) Brickhead v. Archbishop of York, Hob. 250. (t) See 3 Bl. Com. 249, (u) 7 Rep. 26 a; Elvis v. Archbishop of York, Hob. 392; Queen and Middleton's case, 1 Leon. 45; Apperley v. Bishop of Hereford, 9 Bing. 681; Storie v. Bishop of Winchester, 9 C. B. 62; 17 C. B. 653; Roscoe on Real Actions, 231, 239, 241. (2) Celt v. Bishop of Coventry, Hob. 193; R. v. Bishop of Worcester, Vaughan, 58. plaintiff was unfit, for want of learning or otherwise, to be instituted (y). The patron, also, may rely on the defence of plenarty, viz. that the church has been full for six calendar months before the issue of the writ, by virtue of his own presentation (z); or may state, by way of defence, like the ordinary and clerk, and with the same effect, the general issue of ne disturba pas (a); or may traverse the title alleged by the plaintiff in his declaration. Here, however, this difference is to be observed, that though, as a mere answer to the action, such traverse is a sufficient defence, yet it may be often necessary to go further; for in a quare impedit both parties are in a manner plaintiffs, and either of them entitled to a judgment that he recover the presentation, and have a writ to the bishop for the admission of his clerk: if, therefore, the patron wishes to obtain a judgment of this description, and not merely a judgment discharging him from the action, (which will naturally be the case, unless he has presented, and his clerk has been actually admitted,) he must, in addition to the traverse, set forth some matter showing title in himself (6). The trial in quare impedit is in some instances by certificate, but in general by jury (c). And upon the failure of the plaintiff at the trial to make out his title, (y) Vide sup. vol. II. p. 685. See Bishop of Exeter v. Marshall, Law Rep., 3 App. Cas. 17. (z) Stat. Westm. 2, c. 5, vide sup. p. 415. A question is made in Roscoe on Real Actions, (p. 234,) as to the effect that the statute of 7 Anne, c. 18, has had as to a defence of plenarty. It is laid down that the clerk also may rely on the defence of plenarty, but then he must show that the presentation was a lawful title. (Lister v. Crameel, Noy, 30; S. C. 1 Brownl. 162; Roscoe on Real Actions, 240.) (a) Colt v. Bishop of Coventry, Hob. 193; R. v. Bishop of Worcester, Vaughan, 58. (b) Tufton v. Temple, Vaugh. 78. See Carlisle v. Whaley, Law Rep., 2 App. Cas. 391, 409. (c) Vide sup. p. 513. In Roscoe on Real Actions, 503, it is said that not only the issue on the ability of the plaintiff's clerk, if the clerk be alive, must be tried by certificate; but also the several issues arising upon institution, deprivation, resignation, or plenarty. (As to trial by certificate, see 3 Bl. Com. p. 333.) the defendant is put upon the proof of his,—that is, if he has asserted title in his statement of defence. If the right be found for the plaintiff, three further points are also to be inquired into,-1. Whether the church be full or not; and if it be, upon whose presentation it is full;-2. The yearly value of the church ;-3. Whether six calendar months have passed since the avoidance ;-all which matters are material to be ascertained, in order to determine the nature of the damages to which the plaintiff may be entitled (d). For at common law no damages were recoverable in a quare impedit; but by the statute of Westminster the second, (13 Edw. I. c. 5,) if more than six calendar months have passed by reason of the disturbance of any person, so that the bishop has presented by lapse, and the true patron has lost his presentation, damages shall be adjudged against the disturber, to the amount of the value of the church for two years; or if the six calendar months have not passed, then damages to the value of the moiety of the church for one year (e). The judgment for the plaintiff in a quare impedit is that he recover his presentation, and have a writ to the bishop, commanding him to admit his clerk (f); and also that he recover his damages and costs; and such also (with the exception of the damages) is the judgment for (d) 2 Inst. 362; 6 Rep. 49 a; Poyner v. Chorleton, Dy. 134 b; 3 Bl. Com. 249. (e) 6 Rep. 51 a; Inst. ubi sup.; Henslow v. Bishop of Sarum, Dy. 76 b. An additional reason is given in the books (see Wats. C. L. 291), as far as regards the first point, viz. that, unless this is ascertained, it will not appear whether the plaintiff is entitled to recover his presentation; because the church may be full upon the presentation of some stranger, not party to the quare impedit; and whose title may be better than the plaintiff's. the defendant, where he has made out his own title to present (g).. No costs, indeed, were recoverable by either party, in quare impedit, until a recent period (h). But by 4 & 5 Will. IV. c. 39, it was enacted, that where a verdict is given for the plaintiff, he shall have his costs in addition to his damages; and where a verdict is given against him, or he shall discontinue, or be nonsuited, he shall pay costs to the adverse party; though this is subject to a proviso, that no judgment for costs shall be had against any archbishop, bishop, or other ecclesiastical patron or incumbent, if the court or judge shall certify that he had probable cause for defending the action; it being however declared, that in no case, where the defence shall be grounded on a presentation or collation previously made, shall such presentation or collation be deemed a probable cause of defence within the meaning of the proviso. In addition to which there is now the provision of 23 & 24 Vict. c. 126, s. 27 (already noticed in reference to the action of dower), which enacts that all the proceedings and costs upon the writ of summons in quare impedit, shall be subject to the same rules and practice, as nearly as may be, as in an ordinary action (¿). III. In the action of replevin (the nature of which remedy has been already generally explained) the proceedings used to commence by a species of original writ, which directed the sheriff not to summon the defendant into any of the superior courts at Westminster, but to replevy the goods, and determine the matter in the common law county court incident to his own jurisdiction (k). But this mode (g) Wats. C. L. 295. If the bishop, upon receiving the writ ad admittendum clericum,(says Blackstone, vol. iii. p. 250,) does not admit the plaintiff's clerk, the latter may sue him in a quare non admisit, and recover satisfaction in damages. (h) Edwards v. Bishop of Exeter, 6 Bing. N. C. 146. (i) See also 36 & 37 Vict. c. 66, sched. r. 47, cited sup. p. 608, n. (1). (k) As to replevin, vide sup. pp. 256, 420. |