Judgment. 13 Edw. I. c. 5, s. 3. F. N. B. 38. Ibid. 47. Presentation to benefices belonging to lic patrons. If it be found that the plaintiff has the right, and has commenced his action in time, he shall have judgment to recover the presentation, and if the church be full by the 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 cases the plaintiff loses his presentation pro hac vice, but shall recover two years' full value of the church from the defendant; or, in case of insolvency, the defendant shall be imprisoned two years. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, shall have a writ directed to the bishop, ad admittendum clericum, desiring him to admit and institute the clerk of the prevailing party; and if then he does not admit him, the patron may sue the bishop in a writ of quare non admisit, and recover satisfaction in damages (d). There is one species of presentation in which a remedy, to be sued in the temporal courts, is given to the clerks presented, as well as the owners of the advowson, viz. the presentation to such benefices as belong to Roman catholic patrons, which, according to their several counties, are vested in and secured to the two universities; and particularly by stat. 12 Ann. s. 2, c. 14, s. 4, a new method of proceeding is provided, viz. that besides the writs of quare impedit, which the universities, as patrons, are entitled to bring, they or their clerks may be at Roman catho- liberty to file a bill in equity against any person presenting to such livings, and disturbing their right of patronage, or his cestui que trust, to compel a discovery of any secret trusts for the benefit of papists, in evasion of the laws, vesting the right of advowson in the universities, and by 11 Geo. 2, c. 17, to compel a discovery of any grant or conveyance of such advowson, and whether made bona fide to a protestant purchaser, for the benefit of protestants, and for a full consideration, without which requisites every such grant and conveyance is void. But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rent, his tithes, and other ecclesiastical dues, which it furnishes to the owners of lay property. (d) Sir W. Blackstone, at this portion of the original text, after stating that there was then no limitation, with regard to the time, within which actions for recovery of advowsons were to be brought, suggests the establishment of a limitation compounded of length time and number of avoidances, as "if no seisin were admitted to be alleged in any writs of patronage after sixty years and three avoidances were past," a recommendation which seems to have been adopted by the new Statute of Limitations, 3 & 4 Wm. 4, c. 27, s. 30, and see ss. 31, 32, and 33, ante, p. 399. CHAPTER XVII. OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN, AND HEREIN OF THE REMEDIES BY INFORMATIONS, AND THE THESE injuries are either where the crown is the aggressor or Of injuries to the sufferer. or from the crown. Methods of obtaining the crown. restitution from The common law methods of obtaining possession or restitution from the crown, of either real or personal property, are by petition de droit, or petition of right; or by monstrans de droit, manifestation or plea of right; both of which may be preferred or prosecuted either in the chancery or the exche- Skin. 609. quer. The former is of use when the king is in possession of Finch L. 256. any hereditaments or chattels, and the petitioner suggests such St. Tr. vii. 134. a right as controverts the title of the crown, grounded on facts disclosed in the petition, in which the whole title of the crown must be stated; and upon the king's answer-" Let right be done," a commission issues, after the return of which the attorney-general may plead in bar, and the merits are determined upon issue or demurrer, as in common suits. Where the rights of the party and of the crown appear on record, the party shall have monstrans de droit, which latter remedy was enlarged, and rendered almost universal, by 36 Edw. 3, c. 13, and 2 & 3 Edw. 6, c. 8, which also allow inquisitions of office to be traversed or denied, where the right of a subject is concerned except in a very few cases. These proceedings are Ibid. 608. had in the petty bag office, in chancery; and if the right is determined against the crown, the judgment is quod manus domini regis amoveantur et possessio restituatur petenti, salvo 2 Inst. 695. jure domini regis. And by such judgment the crown is in- Rast. Entr. stantly out of possession. As the king, by reason of his legal ubiquity, cannot be deprived of real property once vested in him, he can maintain no action which supposes a dispossession of the plaintiff, such as an ejectment, but he may bring a quare impedit. So, too, he may bring an action of trespass for taking away his goods, for breaking his close, or other injury done to his soil or possession; but such actions are not usual, the more effectual remedies being the prerogative modes of process peculiar to the Such is that of inquisition, or inquest of office, which crown. 463. of redress of Prerog. 130. N. 4, 4. office. 325. is an inquiry made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or teneFinch. L. 323, ments, goods or chattels. This is done by a jury, of no determinate number, being either twelve, or less, or more. The inquests of office are extended not only to lands, but also to goods and chattels personal, as in the case of wreck and treasure trove, and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance medley, is not only with regard to chattels, but also as to real interests, in all respects an inquest of office; and if they find the treason or felony, or even the flight of the party accused (though innocent) the king is thereupon, by virtue of this office found, entitled to have his forfeitures, and in the case of chance medley, he or his grantees are entitled to such things, by way of deodand, as have moved to the death of the party. In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his monstrans de droit, which relies on the facts as found; but he may traverse or deny the matter of fact itself, and put it in a Finch. L. 324. course of trial by the common law process of the court of chancery. The party thus traversing is considered as the plaintiff, and must make out his own title, as well as impeach that of the crown. Petition of right. By scire facias to repeal the king's patent. Dyer, 198. 3 Lev. 220. 4 Inst. 88. By information in the exchequer. Moor. 375. Where the king has unadvisedly granted anything by letters patent which ought not to be granted, or where the patentee has done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either by the king or the subject. An information on behalf of the crown, filed in the exchequer by the king's attorney-general, is a method of suit for recovering money, or other chattels, or for obtaining satisfaction in damages for any personal wrong committed in the lands or other possessions of the crown. It differs from an information filed in the king's bench, in that this is instituted to redress a private wrong, by which the property of the crown is affected, whilst that is calculated to punish some public wrong. It is grounded on no writ under seal, but merely on the intimation of the king's officer, the attorney-general, who "gives the court to understand and be informed of” the matter in question; upon which the party is put to answer, and trial The most is had as in suits between subject and subject. usual informations are Intrusion and The most usual informations are those of intrusion and debt; intrusion for any trespass committed on the lands of the debt. crown, as by entering thereon without title; holding over ' after a lease is determined; taking the profits, or cutting down Cro. Jac. 212. timber; and debt upon any contract for monies due to the 1 Leon. 48. king, or for any forfeiture due to the crown upon the breach Savil. 49. of a penal statute. This is most commonly used to recover forfeitures occasioned by transgressing the revenue laws; others which regard mere matters of police and public convenience, being left to be enforced by common informers, in the qui tam informations or actions before spoken of; but after the attorney-general has informed upon the breach of a penal law no other information can be received. There is also Hard. 201. an information in rem, when any goods are supposed to become Of information the property of the crown, and no man appears to claim them, or to dispute the title of the king. in rem. A writ of quo warranto is in the nature of a writ of right By writ of quo for the king, against him who claims or usurps any office, fran- warranto. chise, or liberty, to inquire by what right he supports his claim, in order to determine the right. It lies also in case of 2 Inst. 322. nonuser or long neglect of a franchise, or misuser or abuse of Finch. L. 282. it, being a writ demanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. The judgment on a writ of quo warranto is final and conclusive, even against the crown; which, with the length of its process, 1 Sid. 86. occasioned its disuse, and introduced the modern information 2 Show. 47. 12 Mod. 225. in the court of king's bench, in the nature of a writ of quo warranto, wherein the process is speedier, and the judgment Information in not quite so decisive. This is properly a criminal method of quo warranto. prosecution, but has long been applied to the mere purposes of civil right. The proceeding is now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of 9 Ann. c. 20, which permits an information, in nature of quo warranto, to be brought, with leave of the court, at the relation of any person desiring to prosecute it (who is then styled the relator), against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; and this statute provides for its speedy determination, and directs that if the defendant be convicted judgment of ouster This mode of proceeding now applied to disputes. corporation (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit. The writ of mandamus is also made by the same statute, 9 Ann. c. 20, an effectual remedy for refusal of admission, where a person is entitled to an office or place in any such corporation; and secondly, for wrongful removal, when a person is legally possessed. The statute requires that a return be immediately made to the first writ of mandamus (a), which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return; and after judgment obtained for the prosecutor he shall have a preremptory writ of mandamus to compel his admission or restitution, which latter (in case of an action) is effected by a writ of restitution; so that now the writ of mandamus, in cases within this statute, is in the nature of an action; whereupon the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, burgess, or freeman; and in general a writ of error may be had thereupon. The writ of mandamus may be issued pursuant to 11 Geo. 1, c. 4, in case within the regular time no election shall be made of the mayor, or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void, requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so chosen. Parts of a suit enumerated. CHAPTER XVIII. OF THE PURSUIT OF REMEDIES BY ACTION, AND FIRST OF THE general and orderly parts of a suit in the court of common pleas are, the original writ (a); the process; the plead (a) By 1 Wm. 4, c. 21, s. 3, the enactments of 9 Ann. c. 20, relating to returns to writs of mandamus therein mentioned, and the proceedings thereon are extended to all other writs of mandamus; and s. 4 of this act, and s. 8 of 1 & 2 Wm. 4, c. 58, provide for the protection of certain officers to whom writs of mandamus are directed. (a) See now note (c), p. 407. |