5. De malo veniendi: and this last is the common essoin, which is intended in this act (b). See tit. Essoin.

In a quare impedit, or darrein presentment, an essoin of the service of the king to the Holy Land, or beyond the sea, lieth not, for doubt of the lapse: but a common essoin lieth (c).

A Writ shall go to the Bishop.] Upon these words of the act, the plaintiff shall have a writ to the bishop without making of any title (d).

And he shall have also besides, a writ to inquire of damages (e).

If the bishop be out of the realm, a writ to the bishop may be awarded to his vicar-general, for he is in the place of the bishop (f).

If the defendant appear at the grand distress, and take a day by prece partium, and after make default, no writ shall be awarded to the bishop; for this case, in respect of his appearance, is out of the statute. But a new distress shall be awarded (g).

By the 3 Edw. 1, c. 51, "Forasmuch as it is great charity to do right unto all men at all times, when need shall be; by the assent of all the prelates it is provided, that assises of novel disseisin, mortdauncestor and darrein presentment, shall be taken in Advent, Septuagesima, and Lent, even as well as inquests may be taken, and that at the special request of the king made unto the bishops."

By the assent of all the Prelates.] Which is expressed, not that the prelates assented alone, but to manifest that this act concerning the crossing of a canon of the church, was enacted by their assents (h).

Shall be taken in Advent, Septuagesima and Lent.] The cause of the making of this statute doth manifestly appear by Britton, who being Bishop of Hereford, and expert both in the common and canon law, in his chapter of the challenge of jurors, saith thus: "If sufficient jurors appear, some are removeable for just challenge of the parties, and also in respect of the time; for all things are not fit for all seasons: for it is forbidden by the canons of holy church, upon pain of excom[ 34 ] munication, that from the Septuagesima until eight days after Easter, and from the beginning of Advent until eight days after the Epiphany, or in the days of the four times (that is, the ember days appointed for public fasts four times in the year), or in the days of the great letanies, or in rogation or gange days, or in the week of Pentecost, or in time of harvest, or of vintage, which endureth from the feast of St. Margaret (which is the twentieth of July), until fifteen days after the

feast of St. Michael the archangel, or in the solemn feasts of the acts of the saints, no man be sworn upon the Holy Evangelists, nor any secular plea be holden in the times aforesaid; but that all these times be given for prayer to God, and to appease debate, and to accord them that be at discord, and to gather the fruits of the earth whereof the people may live, which are works of piety and charity (i)."

By the 13 Edw. 1, st. 1, c. 5, s. 1. "Whereas of advowsons of churches there be but three original writs, that is to say, one writ of right and two of possession, which be darrein presentment and quare impedit; and hitherto it hath been used in the realm, that when any having no right to present, had presented to any church whose clerk was admitted, he that was very patron could not recover his advowson, but only by a writ of right, which should be tried by battel or by great assise; whereby heirs within age, by fraud, or else by negligence of their wardens, and heirs both of great and mean estate, by negligence or fraud of tenants by the curtesy, women tenants in dower, or otherwise for term of life, or for years, or in feetail, were many times disinherited of their advowson, or at least (which was the better for them) were driven to their writ of right, in which case hitherto they were utterly disinherited; it is provided, that such presentments shall not be so prejudicial to the right heirs, or to them unto whom such advowsons ought to revert after the death of any persons; for as often as any, having no right, doth present during the time that such heirs are in ward, or during the estates of tenants in dower, by the curtesy, or otherwise for term of life, or of years, or in tail, at the next avoidance, when the heir is come to full age, or when after the death of the tenants before-named the advowson shall revert unto the heir being of full age, he shall have such action by writ of advowson possessory, as the last ancestor of such an heir should have had at the last avoidance happening in his time, being of full age before his death, or before the demise was made for term of life, 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 [ 35 ] 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.

Sect. 2."Neither shall this act be so largely understood, that such persons for whose remedy the statute was ordained, shall have the recovery aforesaid surmising that guardians of

(i) 2 Inst. 264.

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 writ 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. 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 a quare impedit or of darrein presentment. The same shall be observed in advowsons demised for term of life, or years, or in fee-tail.

Sect. 3. "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 ad[36] vowson be deraigned within the half year, yet the disturber shall be punished by the imprisonment of half a year.

Sect. 4. "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."

Sect. 1. That where any having no Right to present, had presented.] By this it appeareth, that no plenarty doth put the

patron that hath title to present out of possession, but only plenarty by presentation: but plenarty by collation doth put him that had right to collate out of possession (k).

Had presented to any Church.] This is intended of a church presentative (l).

Whose Clerk was admitted.] Albeit that admitted in its pro- When the per sense is, when the bishop upon examination findeth him Church is full. 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 hath committed to him; but before induction the parson hath not the temporalties belonging to his rectory (m).

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 temporalties as to the spiritualty (n).

And if there be an usurpation upon the king, by a complete plenarty; the king cannot present to the church before he hath 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 (0).

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 (p).

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 [ 37 ] 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 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 assise 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

(k) 1 Inst. 344; 2 Inst. 356. (7) 2 Inst. 356.

(m) Ibid.

(n) 2 Inst. 356; [see Abeyance, note.]

(0) 2 Inst. 357.
(p) Ibid.

[ 38 ]

right to every patron within his diocese. But at the common law, if any had usurped upon the king, and his 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 he hath a prerogative, that nullum tempus occurrit regi; but he could not present, for the plenarty barred him of that, neither could he 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 hath altered the common law in all these cases (q).

But only by a Writ of Right.] This is to be understood, where the patron had a fee-simple, and that he or some of his ancestors had presented: but if the patron claimed the fee-simple of the advowson by purchase, and had never presented; there he could have no writ of right of advowson, but before this statute had lost the advowson. And likewise if tenant in tail, or tenant for life, had suffered any usurpation; they had been remediless by the common law, because they could have no writ of right (r).

Which should be tried by Battel.] This is an ancient trial in our law, which the defendant might choose in divers cases, as especially here in a writ of right (s).

Or by Great Assise.] This, in general, is a writ that lies where any man is put out of his lands or tenements, or of any profit to be taken in a certain place; and so, disseised of his freehold (t).

It is provided, that such Presentments.] The words beforegoing, to which these have reference, extend only to heirs in 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 be out of ward (u).

Shall not be so prejudicial to the right heirs.] This act relieveth only infants that have advowsons by descent; for if an infant hath an advowson by purchase, he remaineth at the common law, and is not remedied by this act (x).

And this being a law that suppresseth wrong, and advanceth right, doth bind the king, though he be not named in the act (y).

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 (≈).