OF ECCLESIASTICAL ADVOWSONS.
Pleas concerning Ecclesiastical Advowsons[128] are accustomed to be agitated, as well when the church is vacant, as when it is not vacant. If, upon a vacancy of a church, he who is seised of the Advowson should present a Parson[129] to it, and any one should question the Presentation and claim it, then, it must be distinguished, whether the dispute be concerning the Advowson itself, in other words, the right itself of presenting a Parson, or whether it merely relates to the last Presentation, that is, the Seisin of the right of presenting a Parson. If the dispute merely concern the last Presentation, and the Claimant allege, that he or one of his Ancestors had the last Donation and Presentation, then, the Plea shall be discussed by the Assise appointed concerning Ecclesiastical Advowsons; and an Assise shall be summoned to make Recognition, what Patron in time of peace presented the Parson who last died to that Church; and concerning this Assise we shall speak more fully hereafter,[130] when we come to treat of other Recognitions. The party who by this Assise proves in Court the last Presentation, shall thereby recover Seisin of the Presentation of the vacant Church, concerning which the dispute is; so that he shall lawfully present a Parson to the Church, saving the right and claim of the Demandant with respect to the Right of Advowson.
But, if the right of Advowson be the sole subject of dispute, then the Demandant should subjoin to his claim, that he, or one of his Ancestors, had the last Presentation of that Church; or, he should concede, that his Adversary, or one of his Ancestors, had the last Presentation; or, he should allege, that some third person had the last Presentation; or, in fine, that he knows not who had it.
Whichever of these courses he pursues, if his Adversary claim the last Presentation, as made in his own person, or in that of one of his Ancestors, the Recognition shall in every instance proceed upon the Right of Presentation, unless in one only of the foregoing cases, namely, when the Demandant concedes to his Adversary, that he or one of his Ancestors, enjoyed the last Presentation, for then, without having recourse to a Recognition, he shall present one Person at least. The last Presentation being decided by the Assise or by some other legal mode, and a Parson being instituted into the Church upon the Presentation of the successful party, then shall the person, who is inclined to contend for the Right of Advowson, have the following Writ.
“The King to the Sheriff, Health. Command N. that, justly and without delay, he relinquishes to R. the Advowson of the Church, in such a Vill, which he claims to belong to him, and of which he complains that he unjustly deforced him; and, unless he do so, summon him by good Summoners, that he be on such a day before us, or our Justices, to shew why he has failed; and have there the Summoners and this Writ &c.”
The Party[131] being summoned may avail himself of the same number of Essoins, and that by the same means, as we have already detailed, in treating concerning Pleas affecting Land. Supposing, then, that after having cast three Essoins, he should neither appear nor send an Attorney on the fourth day, it may be asked what the Law is?
In such a case, the seisin of the Presentation of the Church shall be taken into the King’s hands, and that by the following Writ.
“The King to the Sheriff, Health. I command you that, without delay, you take into my hands the Presentation of the Church, in such a Vill, which N. claims against R. and concerning which, there is a Plea in my Court between them, and make known the day of the Caption to my Justices, &c.”
The Sheriff is bound to execute this Writ, in the following manner: he should go to the Church in question, and there in a public manner, and in the presence of respectable men, declare, that he had seised the Presentation[132] of such Church into the King’s hands, in which the Seisin shall continue for fifteen days. The Tenant, if he feel so disposed, may[133] replevy,[134] and thus recover it, in the same manner as stated in the first Book.
All the Essoins to which the Defendant can have recourse being terminated, at the day appointed for the parties in Court, either both, or neither, or one only, of the parties will appear. If one only, or both of them, be absent, the matter must be ordered in a manner similar to that we have formerly explained, in treating of Pleas concerning Land. But if both parties appear in Court, the Demandant should then propound his right as against his Adversary, in the following words: “I demand the Advowson of this Church, as my right, and appertaining to my Inheritance, and of which Advowson I was seised, or one of my Ancestors was seised, in the time of King Henry the 1st, the Grandfather of our Lord King Henry, or after the Coronation of our Lord the King; and being so seised, I presented a Parson to the same Church when vacant, at one of the before-mentioned periods; and I so presented him, that upon my presentation he was instituted Parson into that Church; and if any one would deny this, I have some credible Men who both saw and heard the fact, and are ready to prove it as the Court shall award, and particularly such, and such persons.” The claim of the Demandant being heard, the Tenant may defend himself by the Duel; and the proceedings will accordingly, from that period, be conducted in the manner we have formerly explained. Should, however, the Tenant chuse to put himself upon the Grand Assise, he is perfectly at liberty so to do; and the Assise must then proceed in the form we have previously detailed.
But, although a Church be not vacant, a dispute may arise concerning the Advowson of it, if the Parson of the Church, or he who is invested with that Character, derive his Title from one Patron, at the same time as another Person, conceiving himself to be the more rightful Patron of such Church, lay claim to the Advowson. In such case, the following Writ shall be issued upon his application.
“The King to the Sheriff, Health. Summon, by good Summoners, the Clerk N., Parson of such a Church, that he be before me, or my Justices, at Westminster, on such a day, to shew of what Patron he holds himself in that Church, the Advowson of which the Knight M. claims to belong to him. Summon also, by good Summoners, N. who deforced him of the Advowson, that he be there to shew why he deforced him of that Advowson, and have there the Summoners and this Writ. Witness, &c.”
If, after the Clerk has been summoned, he neither appear on the appointed day, nor send any one to excuse his absence, neither on the first, second, nor third summons, it may be doubted, by what mode he should be distrained to appear in Court, especially if he possess no lay Fee, to which recourse can be had for such purpose.[135] A similar doubt may be proposed upon the course to be pursued, should he, after having thrice essoined himself in Court, neither appear on the fourth day, nor send an Attorney to answer for him.
Should either of these cases occur, let the Bishop of the place, or his Official, if there happen to be no Bishop, be enjoined to distrain the Clerk to appear in Court, or to punish his default, by taking the Church into his hands, or to distrain the Clerk by some other lawful means.
When, at last, the Clerk appear in Court, he will either acknowledge the Demandant as Patron, and admit that he was instituted upon his Presentation, or upon that of one of his Ancestors, or he will allege some other person to be the Patron.
In the former case, the Plea shall cease in the King’s Court. If the Patron deny the assertion of the Clerk, alleging himself to have been instituted upon his Presentation, or that of one of his Ancestors, and be disposed to contest this point against the Clerk, the Plea shall be discussed before his Ecclesiastical Judge. But, if the Clerk name another Patron, such Patron should be summoned to appear in Court, which Summons he will either obey, or not. In the latter case, if he neither appear at the first, second, nor third Summons; or if, having essoined himself in Court the first, second, and third times, he should neither appear nor send an Attorney on the fourth day, it may be asked, by what means he shall be distrained, and how his default shall be punished? The Advowson of the Church in question shall indeed be taken into the King’s hands, and thus remain for fifteen days; and if, within that period, the Clerk should not appear, then, the Demandant shall have the Seisin delivered to him. But what shall be done to the Clerk himself? Whether shall he from that circumstance, lose his Church?[136]
But, if the Party summoned appear in Court, he will either acknowledge himself Patron of the Church in question, or disclaim all right to the Advowson.
Should he pursue the latter course, the Suit shall cease in the King’s Court, and the cause must be discussed between the Patron and the Clerk, in the Ecclesiastical Court. But if, whilst the Suit be pending, the Church itself happen to become vacant, it may be asked, to whom the intervening Presentation belongs? If, indeed, there be no doubt moved concerning the last Presentation, but the person against whom the Right of Advowson be sought, or one of his Ancestors had the last Presentation, then, he shall present the Parson in the mean time, and until he lose his Seisin. It is a consequence of the same principle, that if the Advowson of any Church should be seised into the King’s hands on account of the default of the Patron, and, during the fifteen days, it should happen to become vacant, the Patron shall not within that period lose his Presentation. But, if the party summoned, should claim the Right of Advowson, and elect to defend it as his own, then, indeed, the Suit must proceed in the order we have already explained. If he should prevail, he and his Clerk shall be freed from the Claim of their Adversary; but, if he fail in the Suit, then, he and his Heirs shall for ever lose the Advowson.
But what course shall be pursued with the Clerk, the Parson of the Church, who has declared in Court, that he held the living upon his[137] Presentation? In the King’s Court, indeed, nothing farther is to be done in the matter, unless as it concerns the Advowson between the two Patrons.
But the Patron, who has recently recovered the Right of Advowson, shall proceed against the Clerk in the Ecclesiastical Court before the Bishop or his Official, under these restrictions—if, at the time of Presentation, the Person presenting such Clerk was considered to be the Patron, then, the Church shall continue to be held by the Clerk, during the remainder of his life. For, upon this subject, a Statute has been passed in the Reign of the present King, concerning those Clerks who have obtained Livings upon the Presentation of such Patrons as have, in time of war, violently intruded themselves into Ecclesiastical Advowsons; and by such Statute it is provided, that Clerks thus presented shall not lose their Churches during their lives. Thus is the question above proposed, resolved. But, after the decease of Clerks so presented, the Presentations of the Churches shall return to the rightful Patrons.
As connected with the preceding subject, a question arises. Let us suppose that a Patron has, in the King’s Court, recovered the Advowson as against another; and that afterwards, in process of time, the Clerk of the Church should die. In such a case, can the party against whom the Advowson had been recovered again demand an Assise, concerning the last Presentation; and, if he should obtain a Writ to summon the Assise, what step must his Adversary resort to? Let us suppose, that he himself had never presented an Incumbent to the church in question, but that his Father, or at least one of his Ancestors, had so done, and it be objected to him by his Adversary, that he ought not to have a Recognition, because he had already lost the Advowson by the former Judgment of the Court, whether, it may be asked, shall the Assise cease on that account, or not? It appears that it ought[138] to cease, because, not having the last Presentation, he never had the Seisin of the Advowson; but, it seems, that he might well found his claim upon the Seisin of his Father, notwithstanding any thing that may have been done, concerning the Right itself of Presentation. But if the point of the last Presentation can be again agitated, then, it should seem, that the Judgments of the King’s Court are not of perpetual obligation. For if the Advowson of a Church were once adjudged to any person, it does not appear consistent with Justice that the Adverse party should by any means, which can be subsequently resorted to, recover any Seisin in that Court, especially against him in whose favor the Advowson has been already decided, unless any new circumstance should intervene, on account of which he ought again to be heard. If therefore, an Assise should be summoned for that purpose, it should cease from this circumstance, that although it were conceded that the Claimant, or one of his Ancestors, had the last Presentation, yet it might be alleged, that, if he or his Ancestors had any Right, they lost it by the Judgment of the King’s Court; and, this being proved by the Record of the Court, the Complainant shall lose his cause, and shall in addition be amerced to the King.
It should be observed, that it sometimes happens, that one Clerk sues another in the Ecclesiastical Court, concerning a Church. Should they derive their Titles through different Patrons, the Ecclesiastical Court may, upon the petition of either of the Patrons, be prohibited from proceeding in the Suit, until it be ascertained, in the King’s Court, to which Patron the Advowson of the Church belongs. For this purpose the following Writ shall Issue.
“The King to such Ecclesiastical Judges, Health. R. hath made known to us, that when I. his Clerk held the Church, in such a Vill, on his Presentation, the Advowson being his, as he says, N. a Clerk, demanding the same, as of the Advowson of M. a Knight, draws the said I. into a suit before you in the Court Christian. But if the aforesaid N. should recover the Church under the Advowson of the aforesaid M. it is clear that the said R. would incur the loss of his Advowson. And since suits concerning the Advowsons of Churches belong to my Crown and Dignity, I prohibit you from proceeding in that cause, until it be proved in my Court, to which of them the Advowson of such Church belongs. Witness, &c.”
But if, after this Prohibition, they proceed in the cause, then, they shall be summoned to appear in the King’s Court, and answer for their conduct, by the following Writ.
“The King to the Sheriff, Health.[139] Prohibit such Judges, least they hold plea in the Court Christian, concerning the Advowson of such a Church, of which R. the Patron of that Church complains, that N. draws him into a Suit in the Court Christian; because Pleas concerning the Advowson of Churches appertain to my Crown, and Dignity. And summon, by good Summoners, such Judges, that they appear before me, or my Justices, on such a day, to shew wherefore, they held that Plea, contrary to my Dignity, in the Court Christian. Summon also, by good Summoners, the aforesaid N., that he be then there to shew wherefore, he drew the aforesaid R. into a Suit, in the Court Christian. And have, &c. Witness, &c.”