his tenant. (2 Watk. on Cop. 35.) And the plaint in the nature of 3 & 4 Will. 4, a writ of dower lies in the manor court. (4 Rep. 30 b. See Rex v. c. 27, s. 36. Coggan, 6 East, 431, n.; Scott v. Kettlewell, 19 Ves. 335; Widdowson v. Earl of Harrington, 1 Jac. & Walk. 532; 1 Scriven on Cop. 562, et seq. 3rd edit.) Courts of equity show great indulgence to a dowress on account of the great difficulty of determining à priori whether she could recover at law, ignorant of all the circumstances, and the person against whom she seeks relief having in his possession all the information necessary to enable her to establish her rights. (6 Ves. 89.) Therefore a court of equity will assist a woman claiming dower, by putting out of her way a term which prevents her obtaining possession at law; but that is only as against an heir; (Lord Dudley and Ward v. Lady Dudley, Prec. Ch. 241 ;) or volunteer not a purchaser; (Lady Radnor v. Rotheram, Prec. Ch. 65; but see Williams v. Lambe, 3 Br. C. C. 264, and note by Eden ;) the heir or volunteer being considered as claiming in no better right than she does. A person being seised of an estate of inheritance, subject to a term outstanding for a purpose still unsatisfied, married in 1796; in 1805 mortgaged the estate, and died in 1825: it was held, that the widow having a judgment in dower was relievable in equity against the outstanding term, and should have her dower subject to one-third of the charges affecting the term. Neither party in this case having got the legal estate under control, there was no pretence for saying that equity ought not to give the preference to the dowress, who was the first incumbrancer. (Wilkins v. Lynch, 1 Hayes' Ir. R. 98.) When any question of dower has arisen in courts of equity, and doubts have been entertained of the title to dower, the practice has been to put the widow to bring her writ of dower at law. The courts will assist her in trying her right, and enjoying the benefit of it, if determined at law in her favour, by giving her a discovery of title deeds; by ascertaining metes and bounds; and they do not require her to execute the writ with all the formalities necessary at law; and the right being ascertained by judgment at law will give her possession according to her right; but still they require that the question of her title to dower, if subject to doubt, should be determined at law. (D'Arcey v. Blake, 2 Sch. & Lef. 391.) If the right of dower is not controverted, the Court of Chancery has a concurrent jurisdiction, and writs of dower may be considered as having almost gone out of use. (Mundy v. Mundy, 2 Ves. jun. 122. As to costs in writs of dower, see stat. 20 Hen. 3, c. 1; Roscoe on Real Actions, 321. And as to damages, see Roscoe on Real Actions, 309-313; 1 Fonbl. Eq. 22.) There are conflicting authorities (Burlase v. Cooke, 2 Freem. 24; Rogers v. Seale, Ib. 84; Parker v. Blythmore, 2 Eq. Abr. 79, pl. 1; Jerrard v. Saunders, 2 Ves. jun. 454) upon the point whether a plea of a purchase for valuable consideration without notice be an answer to a bill by a dowress against a bona fide purchaser. Lord Thurlow held, that such a plea would bar an equitable, but not a legal title; (Williams v. Lambe, 3 Br. C. C. 264;) which was followed in (Collins v. Archer, 1 Russ. & M. 292), where it was held, that such a plea would not be available against a legal title on a bill filed for on account of tithes. (See Payne v. Compton, 2 Y. & Coll. 457; Bowen v. Evans, 2 Jones & L. 263; Sugd. V. & P. 1071, 11th ed.; 1 Story's Eq. Jurisp. 510512.) If the wife be divorced à mensâ et thoro, a court of equity will not assist her in recovering dower, but leave her to her remedy at law. (Shute v. Shute, Prec. Chan. 111; Shelford on Law of Marriage and Divorce, 420.)

(e) By the common law there were three writs for the Church Quare imitself:-viz. Right of Advowson, Quare impedit and Assize of darrein pedit. presentment. (2 Inst. 357.) The writ of quare impedit is the remedy by which, where the right of a party to a benefice is obstructed, he

3 & 4 Will. 4, recovers the presentation, and is the form of action now constantly c. 27, s. 36. adopted to try a disputed title to an advowson. (Booth on Real Actions, 233; 3 Chit. Pl. 583; 2 Inst. 356; Com. Dig. Quare impedit (D.) With respect to the proceeding by quare impedit, see 3 Bl. Com. 246-252; Roscoe on Real Actions, index; Stephens' Laws of the Clergy, pp. 1106-1126; Rogers, Eccl. L. 22-34; Reg. v. President, &c. of Cathedral Church of Exeter, 4 P. & Dav. 252; Robinson v. Marquis of Bristol, 11 C. B. 208; 15 C. B. 244.) It has been held, that in a proceeding by quare impedit the plaintiff must prove that he, or those under whom he claims, have made a presentation to the living. This is the only legal evidence of the right. If it were otherwise, any person might set up a claim to present a clerk without a shadow of right, and contrary to reason and common sense. (Cook v. Elphin, 5 Bligh, N. S. 126.) In another case, where a party claimed to present in the fourth turn in right of one of four coparceners, it was held sufficient to allege in the declaration a presentation by the ancestor under whom all the coparceners claimed. The declaration alleged that the advowson had descended to the four coparceners, and they not agreeing to present jointly on the first vacancy, the elder sister presented, and afterwards, on two subsequent vacancies, that A. and B. presented in right of the second and third sisters respectively it was held, that it was to be presumed that those presentations were by right and not by usurpation, and therefore did not turn the estate of the coparceners to a mere right; and that quare impedit was maintainable by a grantee of the fourth coparcener, and that it was not necessary for the plaintiff claiming to present in the fourth turn in right of the youngest sister, to show that the presentations in the turns of the other sisters were made by right. (Gully and others v. Bishop of Exeter, 10 B. & Cr. 584; S. C., 5 Bing. 171; see 2 M. & P. 105; 4 Bing. 525.) An advowson descended to four coparceners, A., B., C. and D., who agreed to present in succession, according to their seniority. When the third turn came, C. had died, leaving two co-heirs, E. and F., between whom the right to present was disputed. F., however, presented, and on the next avoidance E. presented. It was held, that the presentation by E. and F. were to be counted, though they were usurpations on the rights of F. and D. respectively, and that on the seventh avoidance F. would be again entitled to present. (Richards v. Earl of Macclesfield, 7 Sim. 257. See Pyke v. Bishop of Bath and Wells, Bac. Abr. tit. Joint Tenants (H.), vol. iv. p. 482, 7th edit.) In quare impedit the ordinary cannot counterplead the patron's title by setting up title in the Queen by lapse. (Stone v. Bishop of Winchester, 9 Č. B. 62.)

In another case it was held, that it was not competent to the bishop to dispute the title of the patron, at least before collation, as two persons are never permitted to dispute concerning the title of a third in his absence: and, therefore, where in quare impedit the count stated that the plaintiff was admitted, &c. into the rectory of S. L., and so being incumbent of the said church, afterwards accepted and was admitted, &c. into the vicarage of O. P., the said vicarage and the said rectory being respectively each of them a benefice with cure of souls, whereby it then belonged to the plaintiff as patron to present to the church of S. L.; and that he did present to the late bishop one W. B., a fit person in that behalf, but the bishop refused to admit him the defendant (the bishop) pleaded, that before the church of S. L. became vacant, after the plaintiff accepted and was admitted, &c. into the vicarage of O. P. as in the declaration mentioned, and before the plaintiff presented the said W. B. in the declaration mentioned, the plaintiff conveyed to one J. H. the advowson, &c. of S. L.: such plea was held bad on demurrer, as it was not competent to the bishop to dispute the title of the patron, at least before collation.

2nd. That to avoid the first living, it was not necessary that it should 3 & 4 Will.4, appear on the face of the count that it was of the value of 81. a-year c. 27, s. 36. or more in the king's books. And 3rdly, that the patron being himself the incumbent, no sentence of deprivation was necessary to render the first living void. (Apperley v. Bishop of Hereford, 3 Moore & Scott, 102, in which the court relied on Elvis v. Archbishop of York, Hob. 316; and the 1st resolution in Holland's case, 4 Rep. 75 b.) In quare impedit the plaintiffs alleged that they, being the majority of certain persons entitled under a custom, nominated W. C. The defendants pleaded, that they were the majority, and nominated E. P.; without this, that plaintiffs were the majority. A replication, that the defendants did not duly nominate E. P., was held bad. (Earl Harrington v. Bishop of Lichfield, 4 Bing. N. C. 77; 7 Scott, 371.) If a deanery is in the presentation of the crown as patron, or if the crown has a right to nominate a person to the chapter, to be by them presented to the bishop for institution to the deanery, (a right of which many instances occur, and which is fully recognized in the books,) the proper remedy to admit the nominee of the crown is by quare impedit, and the Court of Queen's Bench never interferes by mandamus when that writ lies. (Reg. v. Chapter of Exeter, 12 Ad. & E. 512; see p. 534.)

quare im

pedit.

By statute 4 & 5 Will. 4, c. 39, after reciting that the delay and Act giving expense of recovering advowsons, and the rights of patronage and costs in presentation to ecclesiastical benefices, by actions of quare impedit, quare impedit. were much increased by reason of the defendant in such actions not being liable for the payment of costs, and the true patrons were thereby frequently deterred from the prosecution of their just rights; and that it was also expedient to afford further protection to incumbents of advowsons from vexatious and unfounded proceedings to disturb them in the enjoyment thereof: it is enacted "That in all Costs may be writs and actions of quare impedit issued or brought from and after recovered in the passing of this act in England, Wales or Ireland, where a verdict actions of shall pass or be given for the plaintiff or plaintiffs in any such writ or action, the plaintiff or plaintiffs in every such writ or action, in addition to the damages to which he or they is or are by law now entitled, shall also have judgment to recover his or their full costs and charges against the defendant or defendants therein, to be assessed, taxed and levied in such manner and form as costs in personal actions are now by law assessed, taxed and levied; and where in any such If plaintiff is writ or action the plaintiff or plaintiffs therein shall discontinue, or nonsuited, be nonsuited, or a verdict shall be had against him or them, that &c., defendthen the defendant or defendants in every such writ or action shall have judgment to recover his or their full costs and charges against the plaintiff or plaintiffs therein, to be assessed, taxed and levied in manner aforesaid; provided always, that no judgment for costs shall Exception. be had against any archbishop, bishop, or other ecclesiastical patron or incumbent, if the judge who shall try the cause, or if there shall be no trial by a jury, the court in which judgment shall be given, shall certify that such archbishop, bishop, or other ecclesiastical patron or incumbent had probable cause for defending such action; but in no case when the defence to any such action shall be grounded upon a presentation or presentations, collation or collations previously made to any benefice, shall such presentation or presentations, collation or collations, be deemed or considered probable cause for defending such action." A bishop, defendant in quare impedit, who fails upon demurrer, may be exempted from costs by the certificate of the court under 4 & 5 Will. 4, c. 39. (Edwards v. Bishop of Exeter, 6 Bing. N. C. 146; 7 Scott, 652, 679; see 8 & 9 Vict. c. 51, for enabling archbishops and bishops in Ireland to charge their sees

ant to have judgment.

3&4 Will. 4, with the costs incurred by them in defending their rights of patronc. 27, s. 36. age in certain cases.)

(d) An ejectment is a possessory action, wherein the title to lands and tenements may be tried, and the possession recovered in all cases where the party claiming title has a right of entry, whether such title be to an estate in fee, fee tail, for life, or for years. (See 15 & 16 Vict. c. 76, ss. 168-221; 17 & 18 Vict. c. 125, s. 93; 2 Archbold's Pr. 951-1009 (9th ed.).)

Real actions may be

1835.

Saving Clauses.

XXXVII. Provided always, and be it further enacted, brought until that when on the said thirty-first day of December, one the 1st June, thousand eight hundred and thirty-four, any person who shall not have a right of entry to any land shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the first day of June, one thousand eight hundred and thirty-five, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years herein before limited shall have expired (e).

Saving the

sons entitled to real ac

tions only at the commencement of the act,

&c.

(e) A writ of right was issued before the expiration of the time allowed by this section; after that time had expired the return day of the writ was altered, and the writ was resealed; it was held, that the writ must be considered as having been brought after the time limited by the act; and it was therefore superseded. (Foot v. Collins, 1 My. & Cr. 250.)

XXXVIII. Provided also, and be it further enacted, rights of per- that when, on the said first day of June, one thousand eight hundred and thirty-five, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said first day of June, one thousand eight hundred and thirtyfive, but only within the period during which, by virtue of the provisions of this act, an entry might have been made upon the same land by the person bringing such writ or action if his right of entry had not been so taken away (f).

Formedon still lies.

(f) The rights preserved by this saving were required to be enforced within the time allowed by the act, where a right of entry existed. By a will in 1789, an estate was devised to A. G. M. for life, with remainder as he should by deed or will.appoint; and in default of appointment, remainder to the heirs of his body, with remainder over. In 1790, A. G. M. levied a fine to the use of himself in fee, and afterwards died without issue, it was held in an ejectment by the lessors of the plaintiff, claiming as heirs at law of A. G. M., that the fine created a discontinuance, and gave a tortious fee to A. G. M., and that his heir at law was consequently entitled to re

cover in ejectment, the remainders over being divested, and the rights 3 & 4 Will.4, of the remaindermen only capable of being enforced by real action. c. 27, s. 38. In such a case the stat. 3 & 4 Will. 4, c. 27, s. 38, preserves the right of the remainderman to bring a formedon. (See ante, p. 146; Doe d. Gilbert v. Ross, 7 Mees. & W. 102; Seymour's case, 10 Rep. 96 a; Doe d. Cooper v. Finch, 4 B. & Ad. 283; 1 Nev. & M. 130; Doe d. Jones v. Jones, 1 B. & C. 238; 2 D. & R. 373; Sugd. V. & P. 613, (11th ed.); 1 Hayes, Conv. 237, (5th ed.).)

In formedon the tenant, having demanded a view after a general imparlance, the demandant issued a writ of petit cape, which was held to be irregular; (Tolson v. Watson, 3 Bing. N. C. 770;) because the latter writ can only be awarded where a default has been committed by the tenant, and in this case there had been no such default; instead of suing out that writ, the demandant ought to have counterpleaded or demurred. Demand of view in formedon may be withdrawn on payment of costs, when the delay in the application is sufficiently accounted for. (Tolson v. Fisher, 3 Bing. N. C. 783; 4 Scott, 569.) The tenant in a writ of formedon having demanded a view, for the avowed purpose of obtaining more time than he could obtain upon a judge's order for the time to plead, the demandant having counterpleaded that the tenant was in possession of the land demanded, and of none other in the parish, the court allowed the latter to withdraw the demand of view on payment of costs, notwithstanding the propriety of the step had been the subject of discussion in a preceding term. (Tolson, dem., Watson, ten., 5 Scott, 77.)

&c. to bar a

DESCENT CAST, DISCONTINUANCE AND WARRANTY. XXXIX. That no descent cast, discontinuance, or No descent, warranty (g), which may happen or be made after the warranty, said thirty-first day of December, one thousand eight right of hundred and thirty-three, shall toll or defeat any right of entry. entry or action for the recovery of land.

(g) A mere entry is not possession. Continual or other claim will Descent. no longer preserve any right of entry, or distress or action. (Ante, pp. 182, 183, sects. 10, 11.) By the common law, descents of corporeal inheritances in fee simple took away the entry of the party who had right; (Litt. s. 385;) as if a disseisor died seised, and the lands descended to his heir, the entry of the disseisee was thereby taken away unless there had been a continual claim; (Litt. s. 414;) and the like law was of an abatement and intrusion, and of the feoffees or donees of abators or intruders. But by stat. 32 Hen. 8, c. 33, the "dying seised of any disseisor of and in any lands, &c., having no title therein, shall not be deemed a descent to take away the entry of the person or his heir, who had lawful title of entry at the time of the descent, unless the disseisor has had peaceable possession for five years next after the disseisin, without entry or continual claim by the person entitled." If a disseisor died after five years' quiet possession, and the disseisee entered, the heir of the former might have maintained an ejectment, for the right of possession belonged to him, although the mere right was in the disseisee (Smyth v. Tyndall, 2 Salk. 685.) The doctrine of descent cast did not apply, if the claimant was under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm; because in all these cases there was no laches or neglect in the claimant, and therefore no descent