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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; but, if he be named, no lapse can possibly accrue till the right is determined. If the patron be left out, and the action be brought against the bishop and the clerk only, the suit is of no effect, and will abate; for the right of the patron is the principal question in the cause (c). If the clerk be left 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 bring the action against all three.


Quare impedit is now commenced by a writ of summons issuing out of the court of common pleas, in the same manner and form as the writ of summons in an ordinary action, and upon such writ is indorsed a notice that the plaintiff intends to declare in quare impedit (d). The service of the writ, appearance of the defendant, proceedings in default of appearance, pleadings, [* 306] judgment, execution, and all other proceedings and costs upon the writ, have been made subject to the same rules and practice, as nearly as may be, as the proceedings in an ordinary action (e), of which a sketch will be given in our next chapter; and therefore it seems unnecessary to insert at length in these pages the practice and procedure in a suit such as treated of in accordance with the antiquated form (f). Thus much, however, may properly be said, that the plaintiff in a quare impedit must state his title, 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, not by the weakness of the defendant: and he must also show a disturbance before the action brought. Upon this the bishop and the clerk may 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 (g). And upon failure of the plaintiff in making out 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 of: 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, 13 Edw. 1, c. 5. 3. In case of plenarty upon an usurpation, whether six calendar (h) months have passed between the avoidance and the time of bringing the action: for then it would not be within the statute, which permits an usurpation to be divested by a quare impedit, brought infra tempus semestre. So that plenarty is still a 'sufficient bar in an action of quare impedit, [*307] 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 has the right, and has commenced his action in due time, then he shall have judgment to recover the presentation; and, if

(c) Hall v. Bishop of Bath and Wells, 7 Rep. (commenced since the first Common Law Pro25; Hob. 316.

(d) 23 & 24 Vict. c. 126, s. 26.

(e) 23 & 24 Vict. c. 126, s. 27.

(f) See Rogers, Ecc. L., 2nd ed., p. 24 et seq. (g) See the pleadings in a quare impedit

cedure Act), Marshall v. Bishop of Exeter, 6 C. B. N. S. 716; 7 C. B. N. S. 653; 13 id. 820; L. R. 3 H. L. 17.

(h) 2 Inst. 361

the church be full by institution of any clerk, to remove him: unless it were filled pendente lite by lapse to the ordinary, he not being 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 (i). But if it should so happen that the church remains still void at the end of the suit, then that party to whom the presentation is found to belong, whether plaintiff or defendant, shall have a writ directed to the bishop, ordering him to admit and institute the clerk of the prevailing party (k)

A period of limitation in quare impedit is now prescribed by the statute 3 & 4 Will. 4, c. 27, explained and interpreted by the 6 & 7 Vict. c. 54. By sect. 30 of the former of these statutes the period is defined to be that, during which three clerks in succession shall have held the benefice in question, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of the person seeking to enforce his right to present, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years, and if they shall not, then after the expiration of such further time as with them will make up the full period of sixty years. And where after an adverse possession of the benefice has been obtained, the crown or the ordinary presents by reason of a lapse, such a presentation is to be deemed adverse; except when the avoidance is in consequence of the incumbent being made a bishop, in which case the [308] * incumbency of the successor is to be deemed a continuation of that

of the bishop (1). And by sects. 33 and 34, after an adverse possession of one hundred years, the right to an advowson is extinguished.

The more recent of the above statutes (6 & 7 Vict. c. 54, s. 3) enacts, that the several periods limited "for bringing a quare impedit, or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, shall apply to the case of any bishop claiming a right as patron to collate to or bestow any ecclesiastical benefice, and that such right shall be extinguished in the same manner and at the same periods as the right of any other patron" to present to or bestow a benefice; but the right of a bishop to collate by reason of lapse remains unaffected by the foregoing enactment.

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THE rights and obligations of which our courts of law take cognisance, and for the invasion or breach of which they afford a remedy by action, having been treated of in other parts of this work, we propose here to give some general account of an action at law, and the proceedings in it.

Proceedings before trial.

We must here accordingly repeat (a) that actions have been from ancient times divided into three classes,-real, personal, and mixed. Real actions are those brought for the recovery of real property only; mixed, for the recovery of real property, and damages for its being wrongfully withholden; while personal actions extend to all claims for money due on contracts, or for damages for breach of contract, or injury to person or property, and also to the recovery of specific goods and chattels, though not for the recovery of land. Personal actions are broadly divided into actions ex contractu and ex delicto, and they embrace perhaps the widest range of those civil differences that can become subjects of litigation in this country.

In this chapter we shall speak of procedure only, and will treat of it in an ordinary personal action. It may here be premised that the very numerous and highly technical forms of real and mixed actions which existed prior to the 3 & 4 Will. 4, c. 27, were by that Act all abolished except four, viz., writ of right of dower, dower unde nihil habet, quare impedit, and ejectment; and by the Common Law Procedure Act, 1860, it was further enacted (b) that * no writ of right of dower, or writ of dower unde nihil habet, and no [*310] plaint for freebench or dower (c) in the nature of any such writ, and no quare impedit should be brought after the commencement of that Act in any court whatsoever; but where any such writ, action, or plaint would lie, either in a superior or in any other court, an action might be commenced by writ of summons issuing out of the court of common pleas, in the same manner and form as the writ of summons in an ordinary action; and by s. 27 the writ, and all proceedings thereupon are to be, as nearly as may be, the same as in ordinary actions. The action of ejectment is treated of in another part of this work (d).

Taking the case, then, of an ordinary personal action, it may be first observed that the proceedings in it are so regulated throughout that judgment is given against no man without his having been heard, or through his own default refusing to be heard after due notice of the grounds of claim against him. The action is commenced by the complainant summoning the defendant to appear in the action to answer a complaint against him. The appearance required of him is not at this stage of the proceedings an appearance in open court, but a formal entry in writing at the proper office of the court made by the defendant or his attorney, which in effect admits that the defendant has been duly summoned, and is ready to defend himself against any complaint

(a) Ante, pp. 126, 127. (b) Sect. 26.

(c) Dower is for the specific recovery of

dower, quare impedit, for obstruction to the right to present to a benefice, ante, chap. xi. (d) Ante, pp. 273 et seq.


the plaintiff may bring against him in the action. The instrument by which he is thus summoned is called a writ of summons, and may be issued at the option of the plaintiff out of any one of the superior courts of common law, the queen's bench, the common pleas, or the exchequer.


It is not necessary to mention any form or cause of action in the writ of summons (e), a statement of the grounds* of complaint being usually made at a subsequent stage, whether the defendant appears or makes default by not appearing.

A statement of the grounds of claim against the defendant is in some sort an essential preliminary to obtaining judgment against him, it is however only in certain cases specially provided for,-for example in cases that come under the provisions of the 25th and 27th sections of the Common Law Procedure Act, 1852, relating to special indorsements of the particulars of debts or liquidated demands on the writ of summons, where judgment follows on the writ without any further statement of the cause of action or default of appearance; also, in proceedings under the summary Bills of Exchange Act, 1855 (ƒ), where the statement of the cause of action is on the writ, judgment follows, unless the defendant appears after leave obtained for that purpose in the manner provided by that Act.

Though the court issues the writ, it may be obtained as a matter of course by any person who seeks to commence an action against another. It is open to any person who conceives he has a cause of action against another at his own pleasure, and it may be added, at his own risk, to sue out a writ of summons against him; all that is necessary is for the plaintiff or his attorney to prepare the writ in accordance with the statutory form, take it to the writ office of the court in which the action is brought, and have it impressed with the seal of the court, at the same time leaving a præcipe, or memorandum of the writ with the officer who files it and enters the date thereof and other particulars.

The forms of the writ of summons in personal actions, and certain indorsements to be made on it, the appearance, and many other matters relating to [*312] the process by which an action is commenced, are regulated by s. 2 of the Common Law Procedure Act, 1852, and those sections that follow next in succession to s. 33 inclusive (g), taken in connection with schedule (A.) of the Act. Among other things it may be noticed that the writ is entitled in the queen's name, bears date the day it is issued, is tested in the name of the chief justice or chief baron of the court, or in case of a vacancy in that of the senior judge, and states the name of the plaintiff and the name and residence, or supposed residence of the defendant to whom it is addressed, and certain indorsements are required to be made on it (h). The common indorse

(e) C. L. P. Act, 1852, s. 2.
(f) 18 & 19 Vict. c. 67.

(g) The statutes and the regula generales of
the judges, under provisions contained in
them, on which the procedure of the superior
courts of law now mainly depends, are: the
Com. Law Proc. Act, 1852; the Com. Law Proc.
Act, 1854; the Summary Procedure on Bills
of Exchange Act, 1855; and the Com. Law
Proc. Act, 1860. It should be observed, also,
that there are many unwritten rules of prac-
tice not affected by the statutory provisions,
and which form part of the practice of the


(h) Sect. 20 of the act is as follows:- If the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof any of the matters required by this act to be inserted therein or indorsed thereon, account be held void, but it may be set aside such writ or copy thereof shall not on that as irregular, or amended, upon application to be made to the court out of which the same ment may be made, upon any application to shall issue, or to a judge; and such amendcourt or judge may seem fit. set aside the writ, upon such terms as to the

ments (i) on the writ are the name and place of abode of the attorney who sues it out, or the address of the plaintiff if it be sued out by him in person. In all actions which are brought for the payment of any debt, the amount of the debt and costs is to be indorsed on the writ, and if they be paid within four days from service of the writ the proceedings will be stayed. This indorsement does not, like the special indorsement we have already alluded to, give a statement or particulars of the grounds of action, but merely of the amount

[*313] due and the costs up to that time. in order to give the defendant

an opportunity of staying further proceedings by paying them (j). If the amount indorsed is not paid within the four days the action may proceed as if the indorsement had not been made. The special indorsement is provided for by s. 25 of the Procedure Act of 1852 in cases where the defendant resides within the jurisdiction of the court, and the claim is for a debt or liquidated demand in money with or without interest, arising on a contract express or implied (k). In such and similar cases the plaintiff is at liberty to make upon the writ of summons and copy thereof a special indorsement of the particulars of the claim in the form contained in the schedule (A.) to that Act, and the effect of this section in connection with the subsequent section (s. 27) of the Act, is that final judgment may be signed in default of appearance, and execution may issue against the defendant within eight days after the last day for entering an appearance. Section 25 also contains a provision that it shall be lawful for the court or a judge, either before or after final judgment, to let in the defendant to defend upon an application supported by satisfactory affidavits accounting for non-appearance, and disclosing a defence on the merits.

The essential preliminary-that there must be a statement of the cause of action duly notified to the defendant before judgment can be obtained against him, will be exemplified by noticing a little more in detail the difference between the mode of proceeding on the writ specially indorsed and the procedure on that which is not so, where default is made in appearing. On the writ specially indorsed with the statement of the grounds of claim or cause of action, judgment may be signed at once for non-appearance, or an affidavit being filed of personal service of the writ of summons or a judge's order for leave to proceed, and a copy of the writ of summons; but in the case [*314] of the writ not specially indorsed, on which there is no statement of the cause of action, there must not only be such affidavit, and a copy of the writ filed, but also a declaration, which is a written statement of the cause of action, must be filed, indorsed with a notice to plead in eight days, and to sign judgment by default at the expiration of the time to plead so indorsed; and in the event of no plea being delivered, where the cause of action stated in the declaration is for any of the claims which might have been inserted in a special indorsement, and the amount claimed is indorsed on the writ of summons, final judgment may be signed and execution issue for an amount not exceeding the amount indorsed on the writ, with interest and costs as in the Act specified.

(i) Where a mandamus is claimed in the action or an injunction, the plaintiff must indorse his writ accordingly. See, as to mandamus, s. 68, and as to injunction, ss. 79 and 80 of the act of 1854; and see also as to the notices required to be indorsed where the

plaintiff intends to declare in dower or for
freebench, or in quare impedit, as the case
may be. Com. Law Proc. Act, 1860, s. 26.
(j) See Com. Law Proc. Act, 1852, s. 8.
(k) See the instances given in the section.

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