In quare impedit. the advowson, to present in his or her turn; and if there be two, and they make such partition, each shall be said to be seised, the one of the one moiety to present in the first turn, the other of the other moiety to present in the second turn; in like manner if there be three, four, or more, every one shall be said to be seised of his or her part, and to present in his or her turn. Conveyance of. 2. The plaintiff must convey his title from the person who is stated to have been seised in fee, in the same manner as in other title. Presentation. By whom. cases. 3. Presentation (a) is the only actual seisin which can be had of an advowson; and alleging presentation in a quare impedit is equivalent to alleging esplees in a writ of right. (b) The plaintiff must in all cases allege a presentation, either by himself, or by his ancestor, or by some person under whom he claims, for to count of an estate and seisin without a presentation is bad. (c) And it is said to be necessary to allege a presentation though the advowson be vested in the patron by act of parliament. (d) The king as well as a subject, must allege a presentation (e); but it is said, that if the king is entitled to an advowson by office, he shall have a quare impedit without a presentation, for the office puts the king in possession and every one else out of possession. (ƒ) The presentation ought regularly to be alleged to have been by him in whom the seisin in fee is laid, but a presentation by a person claiming under him, being in law a presentation by him, will be sufficient. Thus a presentation by a grantee of the next avoidance is sufficient, as if the plaintiff in his count state, by way of title, that A. was seised of the advowson in fee, and granted the next avoidance to B., and afterwards the church being void, B. presented, and so convey the descent to himself, without alleging any presentation by A. And a presentation by tenant for life, in dower, by the curtesy, for years, by statute merchant, &c., (a) The cases of Stanhope v. Bp. of Lincoln, Hob. 237, and R. v. Bp. of Worcester, Vaugh. 53, contain almost the whole law on the subject of alleging presentation. "Hobart and Vaughan are the authors who bave entered deepest into, and treat best of this subject." per Ld. Hardw. 2 Str. 1011. (b) Tufton v. Temple, Vaughan, 8. R. v. Bp. of Landaff, 2 Str. 1011. F. N. B. 33 H. (c) Tufton v. Temple, Vau. 7. R. v. Bp. of Worcester, Vang. 57. (d) Reynoldson v. Bp. of London, 3 Lev. 436. Com. Dig. Pleader, (3 I. 5). Contra, 21 Ed. 4. 3 b, Wats. Clerg. Law, 248. Jenk. Cent. 188. (e) R. v. Bp. of Landaff, 2 Str. 1011. (ƒ) 2 Rol. Ab. 378,l. 10. Contra 17 Ed. 3, 10 b. and see Mall. Q. Imp. 156, and Wats. Clerg. Law, 248. is a good seisin for the reversioner. (a) And in a quare impedit In quare impedit. by tenant for life or years, it is sufficient if the plaintiff allege seisin in his lessor, the demise and a presentation by himself. (b) A presentation by lapse, by the ordinary, is a sufficient seisin (c), and so a presentation by the father is sufficient for the wife of a son tenant in dower. (d) So the presentation in a grantor of an advowson is sufficient in a quare impedit brought by the purchaser. (e) If the presentation be alleged in the lessor or donor, and also in the lessee or donee, it is not double; for the presentation of the lessor or donor alone is traversable. (ƒ) Regularly the last presentation must be mentioned, and therefore, if the bishop present by lapse, the patron in a quare impedit upon the next avoidance, must mention that presentation, for it is made in right of the patron; but if there be an usurpation on the king, a grantee of the next avoidance need not mention that, but merely the last presentation by the king (g), for the king cannot be put out of possession by an usurpation. with. There are some cases in which, on the ground of necessity, When dispensed the allegation of a presentation is dispensed with. Thus, if a man, by the king's licence, erect a church, and is disturbed in presenting to the same, he may have a quare impedit, without alleging any presentation in his count; but he must shew the special matter(); and when a man recovers in a writ of right of advowson, he may present at the next avoidance, and if disturbed, shall have a quare impedit, without alleging any presentation in himself or his ancestors, but may declare upon the record. (i) The want of alleging a presentation is cured by verdict. (k) 3. The declaration must allege a disturbance. If the action Disturbance. (4) Countess of Northumberland's case, 5 Rep. 97,b. Cro. Eliz. 518. Moor, 455, S. C. 2 Rol. Ab. 377, 1. 26, 37. (b) Palmes v. Bp. of Peterb. 1 Leon. 230. Com. Dig. Pleader, (3 I. 5). (c) 2 Rol. Ab. 377, 1. 3. (d) 2 Rol. Ab. 378, I. 5. (e) 2 Inst. 356. Wats. Cl. Law, 249. 2 Rol. Ab. 378, 1. 47. Ante, p. 27. Northumberland's case, 5 Rep. 98, a. Cro. Eliz. 518. Moor, 455. S. C. but see Jenk. Cent. 188. (g) Anon. 3 Leon. 17. Hob. 140. Darrein presentment is a good plea in abatement. See post, title "Pleas in Abatement,” p. 207. (h) F. N. B. 33 H. Wats. Cler. Law, 248. Jenk. Cent. 188. (i) Fitz. Ab. Quare Imp. 171. 2 Rol. Ab. 378, 1. 20. F. N. B. $6 A. Br. Quare Imp. 142; but it is said in F. N. B. 33 I. that the presentation may be alleged in the recoveree. (k) R. v. B. of Landaff, 2 Str. 1006. In quare impedit. be brought by an executor or administrator, on an avoidance in the time of his testator or intestate, it is sufficient to allege a disturbance in the lifetime of the testator or intestate, but it must not be alleged in retardatione executionis testamenti. (a) Amending. In waste. In several cases where the writ is general, that the defendant permit the plaintiff to present to the church, the declaration may be special, as to present every third turn. (b) The court will allow the plaintiff to amend his declaration in quare impedit, upon payment of costs. (c) The cause of action in waste is the injury supposed to be done to the plaintiff's inheritance, and it is therefore necessary that he should in his declaration properly entitle himself to the inheritance. Thus, if he counts upon a lease by himself, he must shew his seisin in fee, and the demise to the defendant (d); or if upon a lease by his ancestor, that ancestor's seisin, the demise to the defendant, and the descent to himself (e); so, if the plaintiff claims by fine or recovery, he must plead such fine or recovery, and shew the uses of it (f); but the plaintiff need not name himself assignee, if he sets out his title specially. (g) If the plaintiff claims as assignee of the reversion, he must shew his title by grant or devise. (h) If the plaintiffs sue as parceners or jointenants, the declaration should shew them to be so (i); so if the plaintiff sues as rector in jure ecclesiæ. (k) If husband and wife, in right of the wife, bring the action, the declaration must state the reversion to be in them both; namely, that they are seised of the said reversion in their demesne as of fee, in right of the wife. (1) Where the plaintiff counted upon a feoffment to A. to the use of, &c. (alleging uses of the inheritance) it was held sufficient without saying that the feoffment was to A. and his heirs. (m) And it was held by two judges, that the words (a) Sav. 95. 1 Lutw. 2. 1 Leon. 205. Com. Dig. Pleader, (3 1. 6). As to disturbance, see ante, p. 100. (b) Windham v. Bp. of Norwich, 1 Brownl. 165, and see ante, p. 17, and Wats. Clerg. Law, 252, 20 (c) Reppington v. Tamworth School, 2 Wils. 118. (d) Ewer v. Moile, Yelv. 140. Com. Dig. Pleader, (5 O. 2). 2 Saund. 235 (note 2. (e) Co. Ent. 708, b. (f) Co. Ent. 701, a. Win. Ent. 10:25. (1139). 2 Lntw. 1542. (g) 2 Rol. Ab. 831, l. 46. (h) Greene v. Cole, 2 Saund. 234. 2 Lutw. 1543. Co. Ent. 692, 693. Cro. Eliz. 64. (i) Win. Ent. 1049, (1163). (k) Ibid. 1047, (1161). (1) Earl of Clanrickard v. Sidney, Hob. 1. (m) Skeat v. Oxenbridge, Hob, 84. 2 Rol. Ab. 832, 1. 40. "to the disinheriting," after verdict, cure the want of stating the quantity of estate, of which the plaintiff was seised, the declaration only alleging that the plaintiff was seised, without shewing of what estate (a), but this opinion has been doubted.(b) It is also held, that though the writ is general "whose heir he is,” which primâ facie imports a descent in fee, yet it is no variance to state in the declaration a special inheritance in tail (c), and if the plaintiff shews a fine to the use of B. for life, remainder to A. and the heirs of his body, remainder to the plaintiff in fee, and that A. died, per quod B. was seised for life, remainder to the plaintiff in fee; and that B. committed waste to his disherison, this supplies the omission, that A. died without issue. (d) Where the tenant holds for half a year only, the writ runs, "which he holds for term of years," but the plaintiff must declare specially according to his case. (e) The declaration must assign the waste conformably to the writ, and if the writ is for waste in land, and it is assigned in cutting wood, this is bad (ƒ), and it must particularise the quantity and quality of the waste; though, to maintain the action, the plaintiff is not bound to prove the whole waste laid, but shall recover pro tanto (g); therefore, where the waste complained of is in cutting trees, and the felling of each tree would in itself be waste, it seems the declaration must shew the number of the trees (h); but where the action is brought for waste in trees, where the cutting of each particular tree would not in itself be waste, but the quantity cut makes it so, the declaration must be so many loads (i); so if waste is assigned in houses, the declaration must shew the particular defects. (k) But it is sufficient to assign waste directly, without shewing the particular manner in which it was committed, thus if the waste was committed by a stranger, it is sufficient to say that the defendant committed waste in cutting, without saying, in permitting the stranger(); or if it is for destroying germins, it is sufficient to say that he destroyed the germins generally, without saying that he suffered the (a) Aston v. Whetenall, Cro. Eliz, 57. (b) By Sergt. Williams, 2 Saund. 255, Bote (2). (c) Lewknor v. Ford, 1 Leon. 48. 400. (e) Co. Litt. 54, b. (f) Moor, 73. Com. Dig. Pleader, (3 0.4.) (C. 13). (g) Com. Dig. Pleader, (3 0.5). 2 Saund. 235, a, note (2). (h) 2 Rol. Ab. 832, l. 48. (i) 2 Rol. Ab. 832, l. 53. (k) Com. Dig. Pleader, (3 0.5). (1) 2 Rol. Ab. 833, 1.7. In waste. In waste. In partition. In warrantia charta. hedges of the wood to be neglected; whereby cattle entered and eat the germins. (a) The declaration must be ad exhæredationem, of the plaintiff (b), and if the writ be brought by husband and wife, seised in right of the wife, it shall be ad exhæredationem of the wife.(c) Where the writ of partition is brought between coparceners or jointenants, the declaration must shew how they are coparceners or jointenants, but not so if it be between tenants in common, for they claim by several titles, and the one is not conusant of the other's title (d); so a declaration, which shews that the estate was the inheritance of the common ancestor in tail, is sufficient without saying how the estate tail commenced (e); but where the declaration unnecessarily states a wrong title, as a seisin in fee, when it was in fact only a seisin in tail, the writ may be abated. (f) The court will permit the declaration in a writ of partition to be amended, by striking out an erroneous description of the quality of the estates conveyed to the different parties.(g) The count in warrantia chartæ must shew the specialty of the warranty and the lien (h), that is, it must shew the deed by which the warranty is created, and in what manner the plaintiff is entitled to take advantage of the lien, or obligation to warrant. The count concludes to the damage of the plaintiff though the action be brought quia timet, in which case no damages are recoverable. (i) With regard to other real actions of less importance, it will be sufficient to mention where the form of the count may be found.(k) (a) 2 Rol. Ab. 833, l. 5. (b) Com. Dig. Pleader, (3 O. 6). (e) Haward v. Duke of Suffolk, (f) Moor v. Onslow, Cro. Eliz. 760. (g) Baker v. Daniel, 6 Taunt. 193. 1 Marsh. 537. S.C. (h) Roll v. Osborn, Hob. 21. Com. Dig. Pleader, (3 N. 3). (i) Ib. 23. For the forms of declarations in War. Char. see Rast. Ent. 396, b. &c. (k) For the various writs of entry, see ante, p. 182, note (b). |