On lapse, effect of before and since 3 & 4 Presentation by the Crown on promotion of incumbent to a bishopric. Suppose, said Lord Brougham (q), a series of collations by the bishop, each within three months of the avoidance, how would they be referable to the bishop's title, quasi attorney of the patron? Would not that have some force in the argument between him and the patron? And Doherty, C. J., said (r), a series of them would be evidence, or at least some evidence, of the bishop's right, for as it would be the bishop's interest, so it is always in his power, no matter in what right he really collates, or even if he did so by usurpation, to state that he did so pleno jure, for the return is made by the bishop himself. In England, prior to 3 & 4 Will. 4, c. 27, and in Ireland, down to the 6 & 7 Vict. c. 54, no number of Will. 4, c. 27. collations by a bishop upon lapse ousted the true patron (s). And this is still the case until the possession of the benefice has been obtained adversely; and then by these statutes, after the possession has been so obtained, the presentation or collation thereto by reason of a lapse is adverse, but when acquired on a presentation by the Crown on the incumbent being made a bishop, is a continuation of such incumbency (t). The principle that the Crown is entitled to present to the benefice, the incumbent whereof has been promoted to a bishopric, extends to the bishopric of Sodor and Man, although not within the realm (u). But whether the principle extends to the case where the benefice is in England and the bishopric in Ireland, or the converse, or where the bishopric is founded by the legislature in the East or the West Indies, seems doubtful. The principle, however, does not apply to colonial bishoprics created by the mere prerogative of the Crown (x). (q) Meath v. Winchester, 4 Cl. & F. 455, 495. (r) Londonv. Derry, 1 Smythe's Ir. Rep. 520. (8) Reg. v. Archbishop of York, 1 Leon. 226; Meath v. Winchester, 4 Cl. & F. 445; London v. Derry, 1 Smythe's Ir. (t) Sect. 31. (u) The Queen v. Eton Coll., 8 Ell. & B. 610. (x) Ib. adverse title to An advowson collative may be acquired against the Acquisition of rightful patron by adverse collation (z), or partly by advowson colsuch collation and partly by presentation for the requi- lative. site period. But an advowson presentative, until at least one presentation to it has been made adversely, can be acquired against the rightful patron by adverse presentation only (a), and after that presentation collations by lapse will be a continuance of the adverse possession (b). duction neces adverse. A question may arise whether the possession is ad- Whether inverse, unless each of the clerks be not only instituted, sary to make but also inducted, for until induction he has not seisin, each holding and cannot be full incumbent, and the person presenting has not possession of the patronage (c). Therefore, if so, and any of the clerks die before induction, the possession of such clerks would not be adverse within the statute, and the times of their holding would not form part of the period of limitation. It may be said, however, that as in the terms of the section the benefice is to be merely held by the clerks, that as for all purposes not relating to the temporal possessions of it, it may be held without induction, and that as induction is expressly required of the clerks during whose incumbencies claims under the 2 & 3 Will. 4, c. 100, which is in pari materiâ with the 3 & 4 Will. 4, c. 27, are established, and is not expressly required by the latter statute, the intention of the legislature was that for the purposes of the latter statute induction was not intended. collation No possession under any presentation by the Crown, Possession on or collation by the ordinary, under the 18 Car. 2 (I.), presentation or or the 2 Anne, c. 6 (E.), during the nonconformity of during nonany patron professing the Roman Catholic religion, is conformity of papist patrons. adverse within the 7 Vict. c. 54, against the right of b. (z) 6 Rep. 50a; Co. Litt. 344 (a) Ib. (b) 3 & 4 Will. 4, c. 27, s. 31. 526; For advowsons sixty years from conformity. any such patron or his heirs, or any person claiming by, through or under him or them (e). The period of limitation for an advowson belonging of such patrons to a patron professing the Roman Catholic religion, who under the 18 Car. 2 (I.) or the 2 Anne, c. 6 (E.), has lost his right of presentation thereto during his nonconformity to the United Church of England and Ireland, but who within sixty years, either before or after the 10th of August, 1843, conforms to such church, is sixty years from the day of his conformity (e). For next presentations six calendar months. The right, when merely to present to or to bestow any ecclesiastical benefice on any vacancy thereof, and on such vacancy only, that is, a mere chattel interest (ƒ), is regulated by the Statute of Westminster the 2nd (g), which, in this respect, is a Statute of Limitations (h), and is to be asserted within six calendar(¿) months next before the teste of the writ (j). If a person wrongfully present, and the presentee be permitted to hold for that period, and before the patron presents (k), or if a lapse occur, and a collation is made thereon, the right, whether legal (1) or equitable (m), except perhaps in the case of donatives (n), will be lost. But in the case of a lapse, if the patron present before the bishop exercise his right, the latter loses it (o); and if a stranger present before him, and the clerk be instituted and inducted, the patron would lose his right for such turn (p). (e) 7 Vict. c. 54, s. 4. (f) See 3 Lev. 47; 4 Leon. 109; Co. Litt. 388 a; F. N. B. 34, n.; 3 Bing. 223; 7 B. & C. 113; 8 Bing. 490. (g) 13 Edw. 1, c. 5. (h) 3 Atk. 453; Boteler v. Allington, supra. (i) 2 Inst. 361; 6 Rep. 61; 2 Cro. 166; Yelv. 100; 3 Burr. 1455. (j) Co. Litt. 344 b. (k) 2 Roll. 348; 5 Bing. 174. (1) 13 Edw. 1, c. 5; 6 Co. 48 b; 7 Ib. 28 a; Co. Litt. 344 a. (m) Boteler v. Allington, 3 Atk. 453. (n) See Mutter v. Chanvel, 1 Mer. 475; 5 Russ. 42, S. C. (0) See Gully v. Bishop of Exeter, 5 Bing. 171; Apperley v. Bishop of Hereford, 9 Ib. 681; Stone v. Bishop of Winchester, 9 C. B. 62; 17 Ib. 653. (P) Wat. C. L. 121; Hob. 318. usurpation. If, before the 3 & 4 Will. 4, c. 27, an usurpation were Patronage in made upon a purchaser before any presentation by him, fee gained by and six months passed and no quare impedit were brought, the usurper would have gained the patronage in fee, and the purchaser be without remedy. For, before the Statute of Westminster 2, c. 5, a plenarty for six months had defeated the purchaser perpetually, and he is not within the aid of that statute. He could only have two possessory writs, quare impedit and darrein presentment, and one writ of right. He could have neither of the two possessory writs, because unable to allege a presentation in himself; and he could not have a writ of right, because he cannot allege seisin in the esplees or profits (q). Since the c. 27, which has abolished the writ of darrein presentment, and the writ of right of advowson, except in certain cases (r), his only remedy from thence to the 10th October, 1860, was by quare impedit; but now, where that writ would lie, is by writ of summons, upon which the plaintiff indorses a notice that he intends to declare in quare impedit. A mortgagee, until foreclosure, is bound to present Advowsons in the nominee of the mortgagor (s); and if the mortgagee mortgage. present his own clerk, a court of equity, on the application of the mortgagor before the institution of such clerk, will order the mortgagee to revoke the presentation (t), as, although doubted by the reporter, in that case he may (u). After the institution of such clerk the remedy of the mortgagor would be by a bill in equity to remove him, which is in the nature of a quare impedit. If the mortgagee present, and his clerk be allowed to remain in possession for six calendar months, equity will not (q) 3 Bulstr. 40. (r) Sects. 36, 37, 38. (8) Cas. temp. Talb. 144; Mackenzie v. Robinson, 3 Atk. 559; Gally v. Selby, 1 Com. Rep. 343. See also Croft v. Powel, 2 Ib. (t) Jay v. Cox, Pre. Ch. 71. Incorporeal rights. Profits à prendre partially indefeasible after thirty years; interfere to displace him, but the mortgagor will be excluded from that turn (x). In the case of an advowson in mortgage, whilst the mortgage title is subsisting, presentations by the mortgagee will not be adverse to the mortgagor under the sects. 30, 31, 32 and 33 of 3 & 4 Will. 4, c. 27. Certain incorporeal rights (y), after being enjoyed for certain fixed periods without interruption, cannot now be defeated by merely showing their origin, within the time whereof there is no memory of man to the contrary, that is, in law, since the first day of the reign of King Richard the First (z), and after their enjoyment for certain other periods are made absolute and indefeasible (a). A right of common or other profit or benefit to be taken and enjoyed from or upon any land, and that may be lawfully claimed at the common law, by custom, prescription or grant, and has been actually enjoyed by the person claiming right thereto without interruption for thirty years, is not to be defeated or destroyed by merely showing the commencement of such right prior to that period, but may be defeated in any other way -indefeasible by which such right is liable to be defeated; but when after sixty it has been taken and enjoyed for sixty years, and not by some consent or agreement expressly made or given for the purpose by some deed or writing, is absolute and indefeasible (b). years. Easements, &c. partially defeasible after twenty years; A way or other easement, or a watercourse, or the use of water, to be enjoyed or derived upon, over or from any land or water, and that may be lawfully claimed, at the common law, by custom, prescription or grant, (x) Gardiner v. Griffith, su pra. (y) Vide ante, Book I. Chap. II. Sect. IV. (z) Co. Litt. 114 b, 115 a; 2 Bl. Com. 31; Fisher v. Lord Graves, 3 E. & Y. 1180; Short v. Lee, 2 Jac. & W. 464; Bury (a) 2 & 3 Will. 4, c. 71. |