Front Page Titles (by Subject) CHAPTER XVI.: OF DISTURBANCE. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XVI.: OF DISTURBANCE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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**236]The sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it.(a) I shall consider five sorts of this injury: viz., 1. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage.
I. Disturbance of franchises happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of seizing waifs or estrays, or (in short) any other species of franchise whatsoever, and he is disturbed or incommoded in the lawful exercise thereof. As if another, by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in every case of this kind, all which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified; and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is **237]therefore entitled to sue for damages by a special action on the case; or, in case of toll, may take a distress if he pleases.(b)
II. The disturbance of common comes next to be considered; where any act is done, by which the right of another to his common is incommoded or diminished. This may happen, in the first place, where one who hath no right of common puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the pasture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger’s cattle into the common;(c) and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common.(d) The lord also of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common.(e) But in general in case the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may distrain them damage-feasant:(f) or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable: so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trespass the commoner has no action; but the lord of the soil only, for the entry and trespass committed.(g)1
Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party hath a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least *[*238contracting them into a smaller compass. This injury by surcharging can, properly speaking, only happen where the common is appendant or appurtenant,(h) and of course limitable by law; or where, when in gross, it is expressly limited and certain; for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharger. However, even where a man is said to have common without stint, still there must be left sufficient for the lord’s own beasts;(i) for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.2
The usual remedies, for surcharging the common, are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both which may be had by the lord: or lastly, by a special action on the case for damages; in which any commoner may be plaintiff.(j) But the antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord,3 as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs that are called vicontiel,(k) being directed to the sheriff, (vicecomiti,) and not to be returned to any superior court till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common; and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not as those who have surcharged the common; as well the plaintiff as the defendant.(l) The execution of this writ must be by a jury of twelve men, who are upon their **239]oaths to ascertain, under the superintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner shall not turn more cattle upon the common than are sufficient to manure and stock the land to which his right of common is annexed; or, as our antient law expressed it, such cattle only as are levant and couchant upon his tenement;(m) which, being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a common without stint or sans nombre;(n) a thing which, though possible in law,(o) does in fact very rarely exist.4
If, after the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of second surcharge, de secunda superoneratione, which is given by the statute Westm. 2, 13 Edw. I. c. 8, and thereby the sheriff is directed to inquire by a jury whether the defendant has in fact again surcharged the common contrary to the tenure of the last admeasurement; and, if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay damages to the plaintiff.(p) This process seems highly equitable: for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the first writ, which was only to ascertain the right which was disputed; but the second offence is a wilful contempt and injustice, and therefore punished very properly with not only damages but also forfeiture. And herein the right, being once settled, is never again disputed; but only the fact is tried, whether there be any second surcharge or no: which gives this neglected proceeding5 a great advantage over the modern method by action on the case, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial for every repeated offence.
*[*240There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it that the commoner is precluded from enjoying the benefit to which he is by law entitled.
This may be done either by erecting fences, or by driving the cattle off the land, or by ploughing up the soil of the common.(q) Or it may be done by erecting a warren therein, and stocking it with rabbits in such quantities that they devour the whole herbage and thereby destroy the common. For, in such case, though the commoner may not destroy the rabbits, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner.(r)6 This kind of disturbance does indeed amount to a disseisin, and, if the commoner chooses to consider it in that light, the law has given him an assize of novel disseisin, against the lord, to recover the possession of his common.(s) Or it has given a writ of quod permittat, against any stranger, as well as the owner of the land, in case of such a disturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defendant shall be compelled to permit the plaintiff to enjoy his common as he ought.(t) But if the commoner does not choose to bring a real action to recover seisin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assize or a quod permittat.(u)7
There are cases, indeed, in which the lord may enclose and abridge the common; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen. III. c. 4, that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement,) any waste grounds, woods, or pastures, in which his tenants have common appendant to their estates, provided he leaves **241]sufficient common to his tenants, according to the proportion of their land. And this is extremely reasonable; for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be precluded from making what advantage he can of the rest of his manor, provided such advantage and improvement be noway derogatory from the former grants. The statute Westm. 2, 13 Edw. I. c. 46 extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord who have their common appendant; and further enacts that no assize of novel disseisin for common shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which, Sir Edward Coke says,(w) are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common and make it less sufficient for the commoners. And lastly, by statute 29 Geo. II. c. 36, and 31 Geo. II. c. 41, it is particularly enacted that any lords of wastes and commons, with the consent of the major part in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood.8
III. The third species of disturbance, that of ways, is very similar in its nature to the last; it principally happening when a person who hath a right to a way over another’s grounds, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least not in so commodious a manner as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an assize will lie, as mentioned in a former chapter.(x) But if the right of way thus obstructed by the tenant be only in gross, (that is, annexed to a man’s person and unconnected with any lands or **242]tenements,) or if the obstruction of a way belonging to a house or land is made by a stranger, it is then in either case merely a disturbance; for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance, which must be laid ad nocumentum liberi tenementi;(y) and the obstruction of it by a stranger can never tend to put the right of way in dispute; the remedy, therefore, for these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages.(z)
IV. The fourth species of disturbance is that of disturbance of tenure, or breaking that connection which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger, either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord,(a) and gives him a reparation in damages against the offender by a special action on the case.
V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is a hinderance or obstruction of a patron to present his clerk to a benefice.
This injury was distinguished at common law from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon *[*243admitted and instituted.(b) In which case of usurpation, the patron lost by the common law not only his turn of presenting pro hac vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz., a writ of right of advowson.(c) The reason given for his losing the present turn, and not ejecting the usurper’s clerk, was that, the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever.9 And the patron also lost the inheritance of his advow son, unless he recovered it in a writ of right, because by such usurpation he was put out of possession of his advowson, as much as when by actual entry and ouster he is disseised of lands or houses; since the only possession of which an advowson is capable is by actual presentation and admission of one’s clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted)(d) the church became absolutely full; so the usurper by such plenarty, arising from his own presentation, became in fact seised of the advowson: which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fulness of the church; and when it became void afresh, he could not then present, since another had the right of possession. The only remedy, therefore, which the patron had left, was to try the mere right in a writ of right of advowson; which is a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right:(e) and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance.(f) But in order to such recovery he must allege a presentation in himself or some of his ancestors, which proves him or them to have been once in possession: for, as a grant of the advowson, during the fulness of church, conveys **244]no manner of possession for the present, therefore a purchaser, until he hath presented, hath no actual seisin whereon to ground a writ of right.(g) Thus stood the common law.
But, bishops in antient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted by statute Westm. 2, 13 Edw. I, c. 5, § 2, that if a possessory action be brought within six months after the avoidance, the patron shall (notwithstanding such usurpation and institution) recover that very presentation; which gives back to him the seisin of the advowson. Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron, to recover it, was driven to the long and hazardous process of a writ of right. To remedy which, it was further enacted, by statute 7 Anne, c. 18, that no usurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation: that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church and as a punishment for my own negligence; but that turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past; but during those six months it is only a species of disturbance.
Disturbers of a right of advowson may therefore be these three persons: the pseudo-patron, his clerk, and the ordinary; the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or disputable; the clerk, by demanding or obtaining institution, **245]which tends to and promotes the same inconvenience; and the ordinary, by refusing to admit the real patron’s clerk, or admitting the clerk of the pretender. These disturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law (besides the writ of right of advowson, which is a final and conclusive remedy) hath given him two inferior possessory actions for his relief; an assize of darrein presentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee; and not to the clerk, who hath no right in him till institution, and of course can suffer no injury.
1. An assize of darrein presentment, or last presentation, lies when a man, or his ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted, and afterwards upon the next avoidance a stranger presents a clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writ(h) directed to the sheriff to summon an assize or jury, to inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assize determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2, 13 Edw. I. c. 5. This question, it is to be observed, was, before the statute 7 Anne before mentioned, entirely conclusive as between the patron or his heirs and a stranger: for, till then, the full possession of the advowson was in him who presented last and his heirs: unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a title superior to all others. But that statute having given a right to any person to bring a quare impedit, and to recover (if his title be good) notwithstanding the last presentation, by whomsoever **246]made; assizes of darrein presentment, now not being in any wise conclusive, have been totally disused, as indeed they began to be before;10 a quare impedit being more general, and therefore a more usual action. For the assize of darrein presentment lies only where a man has an advowson by descent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchase.(i)
2. I proceed therefore, secondly, to inquire into the nature(k) of a writ of quare impedit, now the only action used in case of the disturbance of patronage;11 and shall first premise the usual proceedings previous to the bringing of the writ.
Upon the vacancy of a living, the patron, we know, is bound to present within six calendar months,(l) otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient;(m) unless the church be full, or there be notice of any litigation. For, if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of his antagonist’s clerk. An institution after a caveat entered is void by the ecclesiastical law;(n) but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity.(o) But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and, if nothing further be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either side request him to award a jus patronatus, he is bound to do it. A jus patronatus is a commission from the bishop, directed usually to his chancellor and others of competent learning: who are to summon a jury of six clergymen and six laymen, to inquire into and examine who is the *[*247rightful patron;(p) and if, upon such inquiry made and certificate thereof returned to the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber, whatever proceedings may be had afterwards in the temporal courts.
The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated a duplex querela:(q) which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the delegates;12 and if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant.
Thus far matters may go on in the mere ecclesiastical course; but in contested presentations they seldom go so far; for, upon the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare impedit against the bishop, for the temporal injury done to his property in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another presentation set up, then the pretended patron and his clerk are also joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only. But it is most advisable to bring it against all three: for if the bishop be left out, and the suit be not determined till the six months are past, the bishop is entitled to present by lapse; for he is not party to the suit;(r) but, if he be named, no lapse can possibly accrue till the right is determined. If the patron be left out, and the writ be brought only against the bishop and the clerk, the suit is of no effect, and the writ shall abate;(s) for the right of the patron is the principal question in the cause.(t) If the *[*248clerk be loft out, and has received institution before the action brought, (as is sometimes the case,) the patron by this suit may recover his right of patronage, but not the present turn; for he cannot have judgment to remove the clerk, unless he be made a defendant, and party to the suit, to hear what he can allege against it. For which reason it is the safer way to insert all three in the writ.
The writ of quare impedit(u) commands the disturbers, the bishop, the pseudo patron, and his clerk, to permit the plaintiff to present a proper person (without specifying the particular clerk) to such a vacant church, which pertains to his patronage; and which the defendants, as he alleges, do obstruct; and unless they so do, then that they appear in court to show the reason why they hinder him.
Immediately on the suing out of the quare impedit, if the plaintiff suspects that the bishop will admit the defendant’s or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittas,(w) which recites the contention begun in the king’s courts, and forbids the bishop to admit any clerk whatsoever till such contention be determined. 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 jure patronatûs, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by writ of scire facias;(x) and shall have a special action against the bishop, called a quare incumbravit,13 to recover the presentation, and also satisfaction in damages for the injury done him by encumbering the church with a clerk pending the suit and after the ne admittas received.(y) But if the bishop has encumbered the church by instituting the clerk before the ne admittas issued, no quare incumbravit lies; for the bishop hath no legal notice till the writ of ne admittas is served upon **249]him.14 The patron is therefore left to his quare impedit merely, which, as was before observed, now lies (since the statute of Westm. 2) as well upon a recent usurpation within six months past, as upon a disturbance without any usurpation had.
In the proceedings upon a quare impedit, the plaintiff must set out his title at length, and prove at least one presentation in himself, his ancestors, or those under whom he claims; for he must recover by the strength of his own right, and not by the weakness of the defendant’s;(z) and he must also show a disturbance before the action brought.(a) 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. 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 himself, if needful. But if the right be found for the plaintiff on the trial, three further points are also to be inquired: 1. If the church be full; and, if full, then of whose presentation: for if it be of the defendant’s presentation, then the clerk is removable by writ brought in due time. 2. Of what value the living is: and this in order to assess the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenarty upon a usurpation, whether six calendar(b) months have passed between the avoidance and the time of bringing the action, for then it would not be within the statute, which permits a usurpation to be devested by a quare impedit brought infra tempus semestre. So that plenarty is still a sufficient bar in an action of quare impedit brought above six months after the vacancy happens; as it was universally by the common law, however early the action was commenced.
If it be found that the plaintiff hath the right and hath commenced his action in due time, then he shall have **250]judgment to recover the presentation, and if the church be full by institution of any clerk, to remove him; anless it were filled pendente lite by lapse to the ordinary, he not being a party to the suit; in which case the plaintiff loses his presentation pro hac vice, but shall recover two years’ full value of the church from the defendant, the pretended patron, as a satisfaction for the turn lost by his disturbance; or in case of insolvency the defendant shall be imprisoned for two years.(c) But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum,(d) reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party; and if upon this order he does not admit him, the patron may sue the bishop in a writ of quare non admisit,(e) and recover ample satisfaction in damages.
Besides these possessory actions, there may be also had (as hath before been incidentally mentioned) a writ of right of advowson, which resembles other writs of right; the only distinguishing advantage now attending it being that it is more conclusive than a quare impedit, since to an action of quare impedit a recovery had in a writ of right may be pleaded in bar.15
There is no limitation with regard to the time within which any actions touching advowsons are to be brought; at least, none later than the times of Richard I. and Henry III.: for by statute 1 Mar. st. 2, c. 5, the statute of limitations, 32 Hen. VIII. c. 2 is declared not to extend to any writ of right of advowson, quare impedit, or assize of darrein presentment, or jus patronatûs. And this upon very good reason: because it may very easily happen that the title to an advowson may not come in question, nor the right have opportunity to be tried, within sixty years, which is the longest period of limitation assigned by the statute of Henry VIII. For Sir Edward Coke(f) tells us that there was a parson of one of his *[*251churches that had been incumbent there above fifty years; nor are instances wanting wherein two successive incumbents have continued for upwards of a hundred years.(g) Had therefore the last of these incumbents been the clerk of a usurper, or had he been presented by lapse, it would have been necessary and unavoidable for the patron, in case of a dispute, to have recurred back above a century in order to have shown a clear title and seisin by presentation and admission of the prior incumbent. But though, for these reasons, a limitation is highly improbable with respect only to the length of time, yet, as the title of advowson is, for want of some limitation, rendered more precarious than that of any other hereditament, (especially since the statute of queen Anne hath allowed possessory actions to be brought upon any prior presentation, however distant,) it might not perhaps be amiss if a limitation were established with respect to the number of avoidances, or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for instance, if no seisin were admitted to be alleged in any of these writs of patronage after sixty years and three avoidances were past.16
In a writ of quare impedit, which is almost the only real action that remains in common use, and also in the assize of darrein presentment, and writ of right, the patron only, and not the clerk, is allowed to sue the disturber. But, by virtue of several acts of parliament,(h) there is one species of presentations, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation to such benefices as belong to Roman Catholic patrons; which, according to their several counties, are vested in and secured to the two universities of this kingdom. And particularly by the statute of 12 Anne, st. 2, c. 14, s. 4, a new method of proceeding is provided; viz., that, besides the writs of quare impedit, which the universities as patrons are entitled to bring, they, or their clerks, may be at liberty to file a bill **252]in equity against any person presenting to such livings, and disturbing their right of patronage, or his cestuy que trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts, for the benefit of papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies; and also (by the statute 11 Geo. II. c. 17) to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bona fide to a protestant purchaser, for the benefit of protestants, and for a full consideration; without which requisites every such grant and conveyance of any advowson or avoidance is absolutely null and void. This is a particular law, and calculated for a particular purpose: but in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation of which he is afterwards to have the advantage. For besides that he has (as was before observed) no temporal right in him till after institution and induction, and, as he therefore can suffer no wrong, is consequently entitled to no remedy; this exclusion of the clerk from being plaintiff seems also to arise from the very great honour and regard which the law pays to his sacred function. For it looks upon the cure of souls as too arduous and important a task to be eagerly sought for by any serious clergyman; and therefore will not permit him to contend openly at law for a charge and trust which it presumes he undertakes with diffidence.
But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assize, ejectment, debt, or trespass, (as the case may happen,) which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon the mere right; because he hath not in him the entire fee and right,(i) but he is entitled to a special remedy called a writ of juris utrum, which is sometimes styled the parson’s writ of right,(k) *[*253being the highest writ which he can have.(l) This lies for a parson or prebendary at common law, and for a vicar by statute 14 Edw. III. c. 17, and is in the nature of an assize, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenant.(m) And thereby the demandant may recover lands and tenements, belonging to the church, which were alienated by the predecessor; or of which he was disseised; or which were recovered against him by verdict, confession, or default, without praying in aid of the patron and ordinary; or on which any person has intruded since the predecessor’s death.(n) But since the restraining statute of 13 Eliz. c. 10, whereby the alienation of the predecessor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than twenty years;(o) for the successor, at any competent time after his accession to the benefice, may enter, or bring an ejectment.17
[(a) ] Finch, L. 187.
[(b) ] Cro. Eliz. 558.
[(c) ] 1 Roll. Abr. 396.
[(d) ] Co. Litt. 122.
[(e) ] Cro. Eliz. 876. Cro. Jac. 195. Lutw. 108.
[(f) ] 9 Rep. 112.
[(g) ] Ibid.
[1 ] If cattle escape into the common, and are driven out by the owner as soon as he has notice, though the lord may have his action of trespass, yet the commoner cannot bring his action upon the case, because sufficient feeding still remains for him. But if cattle are permitted to depasture the common, whether they belong to a stranger or are the supernumerary cattle of a commoner, an action lies; and it is not necessary to prove specific injury, for the right of the commoner is injured by such an act, and, if permitted, the wrong-doer might gain a right by repeated acts of encroachment. 2 Bla. Rep. 1233. 4 T. R. 71. 2 East, 154. 1 Saund. 346. b. And where A., being possessed of a portion of a lammas-field over which a right of common existed part of the year, took down the customary post-and-rail fence, containing gaps through which the commoner’s cattle might pass, and built a wall with a single doorway, at which they might enter and return, it was held that this was a disturbance of the common right, and an action was maintainable, though the abridgment of the right was inconsiderable. 1 McCleland’s Rep. 373. One farthing damages will sustain the verdict in such case. Ib.; and 2 East, 154. It has been held that a claim of common for all the plaintiff’s cattle levant and couchant on his land was supported by evidence of a custom for all the occupiers of a large common field to turn cattle into the whole field when the corn was taken off, the number of cattle being regulated by the extent, and not the produce of each man’s land in the field, although the cattle were not actually maintained on such land during the winter. 1 B. & A. 706. In an action for disturbance of common, where the plaintiff stated that he was possessed of a messuage and land, by reason whereof he was entitled to the right of common, and it appeared on the trial that he was possessed of land only, it was held that the allegation was divisible, and the plaintiff entitled to damages pro tanto. 2 B. & A. 360. See 15 East, 115. The declaration must in all cases allege that the plaintiff thereby could not use his common in so ample a manner as he ought to have done. 9 Co. 113, a.—Chitty.
The passage referred to in the Reports is this:—“If the trespass be so small that the commoner has not any loss, but sufficient in ample manner remains for him, no action lies for it.” Mr. Serjeant Williams observes that this must be understood with some restriction. Undoubtedly if cattle escape into the common and are driven out by the owner as soon as he has notice, though the lord may have an action of trespass for the injury to his soil, the commoner cannot bring an action upon the case; for this seems to fall directly within the rule. But if cattle are permitted to depasture the common, whether they are a stranger’s or the supernumerary cattle of a commoner, whether they are driven or escape there, a commoner may have an action upon the case, in which it does not seem necessary for him to prove any specific injury sustained. The consumption of the grass by the other cattle is of itself a diminution of the right and profit of the commoner, and considered as a sufficient proof of the damage alleged in the declaration; for if the other cattle had not been there, the commoner’s cattle might have eaten every blade of grass which was consumed by the other. Besides, the law considers that the right of the commoner is injured by such an act, and therefore allows him to bring an action for it to prevent the wrong-doer from gaining a right by repeated acts of encroachment. For wherever any act injures another’s right, and would also be evidence in favour of the wrong-doer claiming the right on any future occasion, an action may be maintained for such act without proof of any specific injury. Mellor vs. Spateman, 1 Saund. Rep. 546, a., n. 2, citing Wells vs. Watling, 2 Bla. Rep. 1233. Hobson vs. Todd, 4 T. R. 71.—Coleridge.
[(h) ] See book ii. ch. 3.
[(i) ] 1 Roll. Abr. 399.
[2 ] The modern doctrine upon this subject is somewhat different: for it is now held that a prescription for a sole and several pasture, &c. in exclusion of the owner of the soil for the whole year is good, (2 Lev. 2. Pollexf. 13. 1 Mod. 74;) for it does not exclude the lord from all the profits of the soil, as he is entitled to the mines, trees, and quarries. And though a man cannot prescribe to have common eo nomine for the whole year in exclusion of the lord, (1 Lev. 268. 1 Ventr. 395,) still, the lord may by custom be restrained to a qualified right of common during a part of the year, (Yelv. 129;) and it is said the lord may be restrained, together with the commoners, from using the common at all during a part of the year. 1 Saund. 353, n. (2.) See also 2 H. Bl. 4. And it is said to have been clearly held that the commoners may prescribe to have common in exclusion of the lord for a part of the year. 2 Roll. Abr. 267, L. pl. 1.—Chitty.
This seems to be too generally expressed; for the lord’s right may be narrowed down to any thing short of absolute exclusion for the whole year. He may, together with the commoners, be entirely excluded for a part of the year, his right may be limited to the feeding of a limited number for a part of the year, or the commoner may have the pasture entirely to his exclusion for a part of the year. Potter vs. North, 1 Saund. Rep. 353, n. 2.—Coleridge.
[(j) ] Freem. 273.
[3 ] Finch, in the passage cited, expressly says that “the lord cannot have the writ of admeasurement against his tenants surcharging; for he may distrain the surplusage for damage-feasant.” And Fitz. N. B. 125, D. is an authority to the same effect. Lord Hale, citing several cases from the year-books, is of a different opinion. But all these seem agreed that the commoner cannot have it against the lord.—Coleridge.
[(k) ] 2 Inst. 369. Finch, L. 314.
[(l) ] F. N. B. 125.
[(m) ] Bro. Abr. tit. prescription, 28.
[(n) ] Hardr. 117.
[(o) ] Lord Raym. 407.
[4 ] The lord may distrain not only the cattle of a stranger, but also so many of a commoner’s cattle as surcharge the common. 2 Bla. R. 818. Willes, 638. A commoner can only distrain the cattle of a stranger, (1 Roll. Abr. 320, 405, pl. 5. Yelv. 104,) and not of the lord, (2 Buls. 117,) nor where a commoner overcharges the common, by putting in cattle that are not levant and couchant, can another commoner distrain the surplus, at least before admeasurement. 3 Wils. 287. 2 Lutw. 1238. 4 Burr. 2426. But where the right of common is limited to a certain number of cattle, without any relation to the quantity of land which the commoner possesses, and he puts in a greater number, perhaps another commoner may distrain the supernumerary cattle. 4 Burr. 2431. It seems clear that a claim of common pleaded by an inhabitant, as an inhabitant merely, is bad: it must be pleaded either in the name of a corporation for the benefit of the inhabitants, or in a que estate. 6 Co. 69, b. 4 T. R. 717. 1 Saund. 346, f., n. (g.) But if the defendant be lord of the manor, or one who puts his cattle on the common with the lord’s license, the commoner cannot maintain an action unless he has sustained a specific injury; for the lord is entitled to what remains of the grass, and therefore may consume it himself, or license another to depasture it. 4 T. R. 73. 2 Mod. 6. 6 Willes, 619.—Chitty.
[(p) ] F. N. B. 126. 2 Inst. 370.
[5 ] Now abolished, 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(q) ] Cro. Eliz. 198.
[(r) ] Cro. Jac. 195.
[6 ] It is the policy of the law not to allow commoners to abate, except only in a few cases; for an action will best ascertain the just measure of the damage sustained. But if the lord erect a wall, gate, hedge, or fence round the common, to prevent the commoner’s cattle from going into the common, the commoner may abate the erection, because it is inconsistent with the grant. 1 Burr. 259. 6 T. R. 485.—Chitty.
[(s) ] F. N. B. 179.
[(t) ] Finch, L. 275. F. N. B. 123.
[(u) ] Cro. Jac. 195.
[7 ] This is now the only remedy, these real actions having been abolished. 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(w) ] 2 Inst. 476.
[8 ] As the lord may approve, leaving a sufficiency of common, the commoner abates an erection at the peril of an action. A person seised in fee of the waste may approve, although he be not lord. 3 T. R. 445. But there can be no approvement against the tenants of a manor, who have a right to dig gravel in the wastes and take estovers, (2 T. R. 391,) nor against common of turbary, (1 Taunt. 435;) and although the lord may approve against common of pastures, by 20 Hen. III. c. 4, 5 T. R. 411, yet there may be other rights of common against which he cannot approve. 6 T. R. 741. A custom for tenants to approve by the lord’s consent and by presentment of the homage does not restrain the lord’s right to approve. 2 T. R. 392, n. The lord may, with consent of the homage, grant part of the soil for building, if the exercise of the right be immemorial, (5 T. R. 417, n.;) but a custom for the lord to grant leases of the waste without restriction is bad in point of law. 3 B. & A. 153.
The cultivation of common lands, and the enclosure and management of them, are now carried on under private acts of parliament, subject to and adopting the regulations laid down in the 13 Geo. III. c. 81 and 41 Geo. III. c. 109, which are incorporated into all special enclosure acts.—Chitty.
By the general enclosure acts, (41 Geo. III. c. 109, amended by 1 & 2 Geo. IV. c. 23, 6 & 7 W. IV. c. 115, and 3 & 4 Vict. c. 31,) it is particularly enacted that any lords of wastes and commons, with the consent of two-third parts in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood.—Stewart.
[(x) ] C. 13, p. 218.
[(y) ] F. N. B. 183.
[(z) ] Hale on F. N. B. 185. Lutw. 111, 119.
[(a) ] Hal. Anal. c. 40. 1 Roll. Abr. 108.
[(b) ] Co. Litt. 227.
[(c) ] 6 Rep. 49.
[9 ] And this preference of the peace of the church to the litigated rights of patrons was held to prevail in all cases, without any regard to infancy, coverture, or any such like disability of the patron; for it was a maxim of the common law “that he who came in by admission and institution came in by a judicial act; and the law presumes that the bishop who has the care of the souls of all within his diocese, for which he shall answer at his fearful and final account, (in respect of which he ought to keep and defend them against all heretics and schismatics and other ministers of the devil,) will not do or assent to any wrong to be done to their patronages, which is of their earthly possession, but, if the church be litigious, that he will inform himself of the truth by a de jure patronatus, and so do right.” 6 Coke, 49.—Chitty.
[(d) ] Ibid.
[(e) ] F. N. B. 30.
[(f) ] Ibid. 36.
[(g) ] 2 Inst. 357.
[(h) ] F. N. B. 31.
[10 ] Now abolished, 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(i) ] 2 Inst. 355.
[(k) ] See Boswell’s case, 6 Rep. 48.
[11 ] One of the few real actions which still remain in England.—Stewart.
[(l) ] See book ii. ch. 18.
[(m) ] See book i. ch. 11.
[(n) ] 1 Burn, 207.
[(o) ] 1 Roll. Rep. 191.
[(p) ] 1 Burn, 16, 17.
[(q) ] Ibid. 113.
[12 ] Now to the Judicial Committee of the Privy Council.—Stewart.
[(r) ] Cro. Jac. 98.
[(s) ] Hob. 316.
[(t) ] 7 Rep. 25.
[(u) ] F. N. B. 32.
[(w) ] F. N. B. 37.
[(x) ] 2 Sid. 94.
[13 ] This writ is now abolished, by 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(y) ] F. N. B. 43.
[14 ] Yet it is said that if the bishop encumbers when no quare impedit is pending, and no debate for the church, quare incumbravit lies. N. N. 111, a., cited Com. Dig. Quare Incumbravit.—Chitty.
[(z) ] Vaugh. 7, 8.
[(a) ] Hob. 199.
[(b) ] 2 Inst. 361.
[(c) ] Stat. Westm. 2, 13 Edw. I. c. [Editor: illegible character] 3.
[(d) ] F. N. B. 38.
[(e) ] Ibid. 47.
[15 ] The writ of right of advowson has been abolished, 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(f) ] 1 Inst. 115.
[(g) ] Two successive incumbents of the rectory of Chelsfield-cum-Farnborough, in Kent, continued one hundred and one years, of whom the former was admitted in 1650, the latter in 1700, and died in 1751.
[16 ] A quare impedit lies for a church, an hospital, and a donative; and, by the equity of the statute of Westminster, it lies for prebends, chapels, vicarages. 3 T. R. 650. Willes’s Rep. 608. 2 Roll. Abr. 380. This action may be brought by the king in right of his crown, or on a title by lapse by a common parson, or by several who have the same title, by an executor or administrator. To maintain the action, there must be a disturbance; as, of brought by a purchasor, he may allege a presentation in him from whom he purchased the same. Stra. 1007. 1 Hen. Bla. 376, 530. If there are distinct patrons of an advowson in one and the same church, as where one has the first portion and another the second, he who is disturbed may have a quare impedit, (3 T. R. 646;) and if there are distinct patrons and incumbents, so that the church is divided into moieties, he who is disturbed shall have the writ. 10 Rep. 136. 5 Rep. 102. 1 Inst. 18. a. 4 Rep. 75. And if the right of nomination is in one, and that of presentation in another, the quare impedit will lie by the person having the nomination against the person who has the presentation and obstructs the right. 3 T. R. 651. Rast. 506, b. If there are two or more tenants in common, or joint-tenants, they must join in a quare impedit of an advowson, for it is an entire thing: and one of them cannot have a quare impedit of a moiety or of a third or fourth part of an advowson of a church, but they must all join; though it is otherwise of coparceners, for if they do not agree the eldest shall have the presentation. Bro. Joinder in Action, 103. But where A. and B. were the grantees of the next avoid ance of a church, and before any avoidance A. released his interest to B., and then the church became void, it was holden that B. alone should present to the church, and if he be disturbed might bring a quare impedit in his own name only. Cro. Eliz. 600. If the suit be by an executor or administrator, upon an avoidance in the life of the testator, an allegation of the disturbance in the life of the testator is sufficient. R. Sav. 95. Lutw. 2. See also, as to the right of the executor to bring this action, Vin. Abr. Executors, P. pl. 7. Latch, 168, 169. Sir W. Jones, 175. Poph. 190. 1 Ventr. 30. As the defendant is considered an actor in a quare impedit, he may make up the issues, (Tidd. Prac. 793,) and may have a trial by proviso, although the plaintiff has not committed any laches in proceeding to trial. Ib. 820.—Chitty.
And this alteration in the law recommended by the learned commentator has recently been carried into effect by stat. 3 & 4 W. IV. c. 27, by which (s. 30) it is enacted that no advowson shall be recovered after three incumbencies occupying a period of sixty years’ adverse possession: incumbencies after lapse are to be reckoned within the period, but not incumbencies after promotion to bishoprics, (s. 31;) and no advowson shall be recovered after one hundred years’ adverse possession, although three incumbencies have not elapsed. S. 33.—Stewart.
[(h) ] Stat. 3 Jac. I. c. 5. 1 W. and M. c. 26. 12 Anne, st. 2, c. 14. 11 Geo. II. c. 17.
[(i) ] F. N. B. 49.
[(k) ] Booth, 221.
[(l) ] F. N. B. 48.
[(m) ] Registrar. 32.
[(n) ] F. N. B. 48, 49.
[(o) ] Booth, 221.
[17 ] It is now formally abolished, 3 & 4 W. IV. c. 27, s. 36. Until recently, defendants in actions of quare impedit were not liable for the payment of costs, and the patrons were thereby sometimes deterred from prosecuting their rights, (Edwards vs. Bishop of Exeter, 6 Bingh. N. C. 146;) but now, by stat. 4 & 5 W. IV. c. 39, plaintiffs are enabled to recover their full costs.—Stewart.