pedit. of quare im- king brings a quare impedit, upon an avoidance by simony in the incumbent. (a) The advice given by Lord Hobart is, not to Against whom. name more disturbers than are likely to have reasonable titles, for every disturber will make a several title, and traverse, or confess and avoid the plaintiff's title, whether they themselves have title or not, and therefore it is better not to name them. (b) If the king presents, and his clerk is admitted and instituted, the quare impedit must be brought only against the bishop and incumbent or one of them. (c) Clerk. For what. If the action is brought against the ordinary and the disturber only, omitting the incumbent, who was instituted before the action commenced, the patron may recover his right of patronage, but not his present turn, for he cannot have judgment to remove the clerk, unless he is made a party to the writ (d); but if the clerk of the party, against whom judgment is given, is admitted and instituted pending the suit, then, as he could not have been made a defendant in the action, he may be removed though not named. (e) When the action is brought for a disturbance to a parsonage or rectory, the form of the writ is "command, &c. that they permit him to present, &c. to the church, &c." for by the word church a parsonage or rectory is properly understood (ƒ); if for disturbance to a vicarage then "to the vicarage (g)"; if to a prebend, then "to the prebend;" if to a chapel, then "to the chapel;" and thus the advowson ought always to be named, as it is. (h) A quare impedit lies of a church donative, the form of the writ being," that they permit him to present to the church," and the particular title is stated prebend or chapel donative. (i) disturbance of a donative is only (a) R. v. Abp. of York, 3 Lev. 16, but see R. v. Bp. of Litchfield, Noy, 151. Wats. Cl. Law, 256. (b) Elvis v. Abp. of York, Hob. 320. (c) Keilw. 53, a. Hall's Case, 7 Rep. 26, b. (d) Per Doddridge, in Harris v. Austin, 3 Bulstr. 38. 1 Brownl. 159. 3 Bl. Com. 248. (e) F. N. B. 35 C. (f) F. N. B. 32 H. Wats. Cl. Law, 250. (g) F. N. B. 32 H. but if a vicarage in the count, and so it lies of a be called a church, it is not error, R. v. that a church donative cannot be so filled by presentation, institution, and induction, as actually to put the true patron out of possession, and prevent him from preferring his clerk. He may therefore either put in his own clerk notwithstanding the church be full, and the two clerks may then try their right in trespass or ejectment, or he may, if he please, admit himself out of possession, and bring his quare impedit. (a) A quare impedit will lie for an hospital, or for a church and a hospital, being one and the same thing. (b) So it lies for an archdeaconry (c); but it does not lie for a chancellorship or a commissaryship. (d) A quare impedit, "to present to the moiety of the church," &c., only lies where there are two several patrons and two several incumbents of the church, so that each patron has a distinct and separate advowson of one half of the church, and his incumbent a distinct and separate half of the tithes and other ecclesiastical profits in the same town, in which case the advowson and the church are severed both in right and possession. But if there be only one incumbent, then, although the advowson be severed and divided, yet no quare impedit will lie "to present to the moiety of the church," &c.; but in such case the form of the writ must be, "to present to the church" generally, and the plaintiff's title must be stated truly in the declaration. (e) So in a quare impedit by the king for a prerogative turn, the writ is general, “quæ ad nostram donationem spectat," and the count special, “quæ ad nostram donationem spectat jure prerogativæ.” (ƒ) The alteration of a church in name or otherwise will not prevent the patron from having his quare impedit by the new name, if that writ could have been brought before the alteration (g); and so if two churches be united, he who is patron by the union may have a quare impedit. (h) The writ of quare impedit must be brought in the Common (a) Wats. Cl. Law, 306. Co. Litt. 344, a. ante, p. 101. (6) F. N. B. 33 G. Mayor of Bedford v. Bp. of Lincoln, Willes, 611. Williams v. Bp. of Lincoln, Cro. Eliz. 790. Rast. Eut. 506, b. Wats. Cl. Law, 240. (c) Smallwood v. Bp. of Coventry, Cro. Eliz. 207. 1 Leon. 205, S. C. Wats. Cl. Law, 240. (4) Wats. Cl. Law, 240. (e) Smith's Case, 10 Rep. 135, b. Windsor's Case, 5 Rep. 102, b. Windham v. Bp. of Norwich, 1 Brownl. 165. Wats. Cl. Law, 252. (f) R. v. Bp. of London, 1 Salk. 559. 3 Lev. $77, 382, S. C. (g) Wats. Cl. Law, 253. () Ibid. Coppledick v. Tansey, Hutt. 31. See more as to the name of the Church, Ayray's Case, 11 Rep. 22, a. of quare impedit. For what. of quare impedit. Process, &c. Ne admittas and bravit. Pleas, unless the king is plaintiff, who may choose his own court. (a) The venue is local, and must be laid in the county where the church lies, though it is otherwise in the king's case, and a quare impedit for a prebend must be brought in the county where the cathedral church lies. (b) There must be fifteen days between the teste and return of the writ, and the teste it is said ought to be the day of the issuing. (c) The process in quare impedit is summons, attachment, and, at common law, distress infinite; but by the statute of Marlbridge, c. 12, if the defendant makes default at the return of the distringas, the plaintiff may have judgment, and a writ to the bishop. Either the plaintiff or defendant may be essoigned, but if the ordinary essoigns himself it makes him a disturber. Neither voucher nor aid-prayer lies. Damages are recoverable, but no costs. Judgment may be given at nisi prius, and a writ of admittendum clericum awarded there. (d) As soon as the quare impedit is sued out, the plaintiff, or, as it seems, the defendant, if he suspect that the bishop will admit a clerk pendente lite, may have a ne admittas, which is a prohibitory writ, forbidding the bishop to admit any clerk whatsoever, before the contention determined. (e) This writ ought to be brought within the six months, for after that time the right of collation has vested in the bishop (ƒ), if he has not been guilty of a disturbance. (g) If the bishop admits a clerk notwithstanding this writ, and the plaintiff recovers, the latter may then sue out a quare incumbravit against the bishop, and shall recover on it his damages and the presentation, and remove the clerk who came in pendente lite. (h) (a) Reg. Br. 29, b. F. N. B. 33 E. Magdalen College Case, 11 Rep. 68, b. (b) Bulwer's Case, 7 Rep. 3, a. Merrick's Case, Dyer, 194, a. As to Quare Imp. in Wales, see Vaughan, 410. (c) Reg. Br. 30, a. Br. Ab. Quare imp. 151. Wats. Cl. Law, 254. (d) See post under the proper heads. (e) F. N. B. 37 F. H. 3 Bl. Com. 248. Wats. Cl. Law, 239. (ƒ) F. N. B. 37 E. (h) F. N. B. 48 D. &c. Wats. Cl. Law, 240. Lancaster v. Lowe, Cro. Jac. 93. Of the Writ of Waste. WASTE is a spoil or destruction in houses, gardens, trees, lands, or other corporeal hereditaments, to the disherison of him who has the reversion, or remainder in fee-simple or feetail. (a) And it is either voluntary, which is an act of commission, as by pulling down a house, or it is permissive, or a matter of omission only, as by suffering it to fall for want of necessary reparations. (b) The action of waste may be brought by any person who has the immediate reversion, or remainder in fee, or in tail, whether by descent, purchase, or escheat (c); but if there be any intermediate estate of freehold, no action of waste lies for the ultimate remainderman or reversioner (d); but, though there be a mesne estate for life, yet as soon as that estate is determined by death, or surrender, the reversioner in fee may maintain a writ of waste for waste committed during the continuance of the intervening estate, for it was to his disherison, although during the life estate he had no remedy (e); and if the remainder for life is contingent, before the contingency happens, the reversioner may have waste (ƒ); and he may have waste, although the mesne remainder for life which is determined, was without impeachment of waste.(g) Where the reversioner grants the reversion for years, he cannot bring waste; but it is otherwise where he only makes a lease in reversion (h), and a remainder for years will not prevent the ultimate reversioner or remainderman in tail or in fee from bringing waste. (i) (4) Co. Litt. 53, a. 2 Bl. Com. 281. (6) 2 Inst. 145. 2 Bl. Com. 281. (c) 2 Rol. Ab. 825. Com. Dig. Waste, (C. 2). Co. Litt. 53, b. 2 Saund. 252, note (7). (d) Co. Litt. 54, a. "In F. N. B. (58, C. 59, H.), it must be understood," says Sir E. Coke, "that the mean remainderman is dead, or has surrendered." Where the tenant is also the mesne remainderman, see Co. Litt. 299, b. (ƒ) Udal v. Udal, Aleyn, 82. (h) Co. Litt. 54, a. 2 Rol. Ab. 829, (i) F. N. B. 59 H. 2 Inst. 301. Of waste. By whom. Of waste. In some special cases an action of waste will lie, although the lessor had nothing in the reversion at the time of the waste done; as where lessee for life makes a feoffment in fee upon condition, and waste is done, and afterwards the lessee re-enters for the condition broken, in this case the lessor shall have an action of waste. So if a bishop makes a lease for life or years, and dies, and the lessee, the see being void, does waste, the successor shall have an action of waste. And so if lessee for life is disseised, and waste is done, and the lessee re-enters, an 'action of waste may be maintained against him, and yet in none of these cases the plaintiff had any thing in the reversion at the time of the waste committed. (a) There are some cases, in which, on account of the doctrine of tenure, a person who has not the inheritance, may join with another person who has, in bringing an action of waste. Thus if tenant for life and the reversioner join in making a lease, the lessee will hold of the tenant for life, and if he commit waste, the action must be brought by the tenant for life and reversioner. (b) And so where a reversion is granted to two and the heirs of one of them, and waste is committed by the tenant, the action shall be brought by both (c); and so if there be two jointenants for life, the reversion in fee to one of them, and they make a lease and waste is done. (d) Where there are jointenants for life, remainder to one of them in fee, and the tenant for life commits waste, he who has the fee has no remedy against him who holds for life, by the statute of Gloucester, although the heir has, after his ancestor's death; but it seems that he who has the fee may maintain a writ of waste against the tenant for life by the statute of Westminster 2, 13 Ed. 1, c. 22 (e), which enacts, that where two or more hold wood, turf-land, or fishing, or other such thing in common, (and by the equity of the statute, in jointenancy,) and some of them do waste against the minds of the other, an action may lie by a writ of waste. (ƒ) Jointenants and tenants in common for life are (a) Co. Litt. 356, a. (b) Co. Litt. 42, a. Thel. Dig. 1. 2, c. 2. s. 4. Treport's Case, 6 Rep. 15, a. Bredon's Case, 1 Rep. 76, a. 3 Prest. Conv. 33. (c) F. N. B. 59 F. Co. Litt. 42, a. 5s, b. (d) 2 Rol. Ab. 825, 1. 35. (e) Co. Litt. 53, b. 200, b. 247, b. 2. Rol. Ab. 825, 1. 40. (ƒ) 2 Inst. 403. F. N. B. 59 D. |