Disturbers of a right of advowson may therefore be the pseudopatron, his clerk, and the ordinary; the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or disputable; the clerk, by demanding or obtaining institution, which tends to and promotes the same inconvenience; and the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. Those disturbances are injurious to him who has the right: and therefore if he be not wanting to himself, the law gives him an action of quare impedit; in which the patron is always the plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee, and not the clerk, who has no right in him till institution, and of course can suffer no injury.

This action is of a somewhat peculiar nature.

Upon the vacancy of a living, the patron is bound to present within six calendar months, otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient; unless the church be full, or there be notice of litigation. For if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of his antagonist's clerk. An institution after a caveat entered is void by the ecclesiastical law; but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity. But if two presentations be offered to the bishop upon the same avoidance, the church is then said to be litigious; and, if nothing further be done, the bishop may suspend the admission of either, and suffer a lapse to incur: yet if the patron or clerk on either side request him to award a jus patronatûs, he is bound to do it. A jus patronatûs is a commission from the bishop, directed usually to his chancellor and others of competent learning; who are to summon a jury of six clergymen and six laymen, to inquire into and examine who is the rightful patron; and if, upon such inquiry made and certificate thereof returned to the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber.

The clerk refused by the bishop may also have a remedy

against him in the spiritual court, denominated a duplex querela; which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the crown: and if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant.

Thus far matters may go on in the mere ecclesiastical course, but they seldom go so far: for, upon the first refusal of the bishop to admit his clerk, the patron may bring his action of quare impedit against the bishop, for the temporal injury done to his property, in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another presentation set up, then the pretended patron and his clerk are also joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only; but it is the safer way to proceed against all three.

If the plaintiff in this action suspects that the bishop will admit the defendant's or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittas, which forbids the bishop to admit any clerk whatsoever till such contention be determined; and if the bishop does, after the receipt of this writ, admit any person, even though the patron's right may have been found in a jure patronatûs, then the plaintiff, after he has obtained judgment in the quare impedit, may have an action against the bishop, to recover satisfaction in damages for the injury done him by incumbering the church with a clerk pending the suit.

In the proceedings quare impedit, the plaintiff must set out his title, and show a disturbance before 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. And upon failure of the plaintiff in making out his own title, the defendant is put upon the proof of his, in order to obtain judgment for himself, if needful. But 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 the church be full by institution of any clerk, to remove him. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum; and if upon this order he does not admit him, the patron may sue the bishop for damages.

There was formerly no limitation with regard to the time within which any actions touching advowsons were to be brought; at least none later than the times of Richard I. and Henry III. And this upon very good reason: because it may very easily happen that the title to an advowson may not come in question within sixty years; the longest period of limitation assigned by the statute of Henry VIII. A period of limitation has now, however, been established, which is to bar an action of quare impedit; that, namely, during which three clerks in succession shall have held the benefice, all of whom shall have obtained possession thereof adversely to the right of the plaintiff, or of some person through whom he claims, provided the times of such incumbencies taken together amount to the full period of sixty years. After an adverse possession of one hundred years, although three incumbencies have not taken place, the alleged right of the claimant is completely barred.

In quare impedit, the patron only, and not the clerk, is allowed to sue the disturber. But there is one species of presentation, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson; the presentation, namely, of such benefices as belong to Roman Catholic patrons,—which are vested in the two universities. Besides the quare impedit, which the universities as patrons are entitled to bring, they, or their clerks, are at liberty to commence an action against any person presenting to such livings, and disturbing their right of patronage, or his cestui que trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts, for the benefit of Papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies. This is a particular law, and calculated for a particular purpose: for in no instance but this, does the law permit the clerk himself to

interfere in recovering a presentation, of which he is afterwards to have the advantage. When he is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, which it furnishes to the owners of lay property.

CHAPTER IX.

OF EQUITY.

HAVING defined the several injuries hitherto cognizable in the superior courts of common law, I am now, according to the arrangement of our subject, to explain the several branches of that vast jurisdiction which has till recently been the peculiar province of the High Court of Chancery; and which is now administered in the several tribunals constituting the Chancery division of the High Court of Justice. In so doing I shall consider, firstly, the general nature of equity; and secondly, the matters more especially cognizable in courts of equity.

Equity, in its true and genuine meaning, is the soul and spirit of all law: positive law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity, and a court of law, as contrasted to each other, are apt to confound and mislead us; as if the one judged without equity, and the other was not bound by any law. Whereas every definition or illustration to be met with, which sets law and equity in opposition to each other, will be found either totally erroneous, or erroneous to a certain degree.

It has been said, that it was the business of our courts of equity to abate the rigour of the common law. But no such power was contended for. Hard was the case of bond-creditors, whose debtor devised away his real estate; rigorous and unjust the rule, which put the devisee in a better condition than the heir; yet a court of equity could not interpose. Hard was the common law that land devised, or descending to the heir, should

not be liable to the simple contract debts of the ancestor or devisor, although the money had been laid out in purchasing the very land; and that the father should never immediately succeed as heir to the real estate of the son, but a court of equity gave no relief. In all such cases courts of equity, as well as the courts of law, said with Ulpian, "hoc quidem perquam duram est sed ita lex scripta est."

Again it has been said, that a court of equity determined according to the spirit of the rule, and not according to the strictness of the letter; but so also does a court of law. Both, for instance, are equally bound to interpret statutes according to the intent of the legislature. In general laws all cases cannot be foreseen; or if foreseen, cannot be expressed: some will arise that will fall within the meaning, though not within the words of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out of the letter, are said to be within the equity of the statute; and so cases within the letter are frequently out of the equity. Here, by equity, is meant nothing but the sound interpretation of the law.

It has also been said, that fraud, accident, and trust, were the peculiar objects of a court of equity. And for a considerable period there was some foundation for this statement. But for many years past every kind of fraud has been cognizable in a court of law; and many accidents have been there supplied, as, loss of deeds, wrong payments, and deaths, which made it impossible to perform a condition literally. A technical trust indeed was forced into the courts of equity, and there remained till our own day in the manner already described. But there are other trusts, cognizable in a court of law, as deposits, and all manner of bailments; and especially that implied contract of having undertaken to account for money received to another's use; so that had it not been for the technical view taken by the courts of law, all trusts might long ago have come under their cognizance.

Once more, it has been said that a court of equity was not bound by rules or precedents, but acted from the opinion of the judge, founded on the circumstances of every particular case. In point of fact, however, our system of equity has long been governed by