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DISTURBANCE OF PATRONAGE.

245

4. The disturbance of tenure occurs where a stranger, either by menaces or threats, or by unlawful distresses, or by fraud, contrives to drive a tenant away, or inveigle him to leave his tenancy. This the law justly construes to be a wrong and an injury; the usual remedy for which is an action on the case to recover damages.

5. The disturbance of patronage is a hindrance or obstruction of a patron to present his clerk to a benefice. This happens when a stranger who has no right presents a clerk, who is thereupon admitted and instituted, by which usurpation the patron, by the common law, lost not only his turn of presenting pro hâc vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next vacancy unless in the meantime he recovered his right by a real action.* The reason given for his losing the present turn and not being able to eject the usurper's clerk was, that the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the Church, provided a clerk were once admitted and instituted, to the right of any patron whatever. Usurpation now gains no right to the usurper with regard to any future avoidance, but only to the present vacancy if not remedied within six months; and during those six months it is only a species of disturbance. remedy is a writ of quare impedit, now the only action for the disturbance of patronage, in which the patron, not the clerk, is plaintiff. It is commenced by a writ of summons in the same manner and form as in an ordinary action.

The

After an adverse possession of one hundred years, the right to an advowson is extinguished.

* A writ of right of advowson is now abolished.

† See 6 & 7 Vict., c. 54; and 23 & 24 Vict., c. 126, s. 26.

CHAPTER IX.

INJURIES PROCEEDING FROM OR AFFECTING THE

CROWN.

Having considered the Injuries or Private Wrongs that may be offered by one subject to another, and how they are remedied, let us now inquire into the mode of redressing those "Injuries" to which the Crown itself is a party,-injuries where the Crown is the aggressor, or the sufferer, and which are remedied by peculiar forms of process, appropriate to the Royal prerogative. In treating therefore of these, let us consider first the manner of redressing those wrongs or injuries which a subject may suffer from the Crown; and then of redressing those which the Crown may receive from a subject.

Explain the Redress of Wrongs inflicted by the Crown.

"That the Sovereign can do no wrong" is a necessary and fundamental principle of the English Constitution; meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the Sovereign; and secondly, that the prerogative of the Crown extends not to do an injury; for, being created for the benefit of the people, it ought not to be exercised to their prejudice. Whenever, therefore, it happens that through misinformation or inadvertence the Crown has been induced to invade the private rights of any of its subjects, though no action or suit will lie against the Sovereign, yet the law has furnished the subject with a decent and respectful mode of removing that invasion by informing the Crown of the true state of the matter

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in dispute, by petition of right, which will then be put in a regular train for adjudication and adjustment.

Injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers; and for them the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents by whom the Sovereign has been deceived and induced to do a temporary injustice.

The common-law methods of obtaining possession or restitution from the Crown of either "real" or "personal" property

are:

1. By petition de droit, or petition of right.-2. By monstrans de droit, or manifestation or plea of right.

The former is of use when the Sovereign is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the Crown grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the title of the Crown, otherwise the petition shall abate; and then, upon this answer being endorsed or underwritten by the Sovereign-soit droit fait al partie (let right be done to the party), a commission will issue to inquire as to the truth of this suggestion; after the return of which the Attorney-General may plead in bar, and the merits will be determined upon issue or demurrer, as in suits between subject and subject.*

Monstrans de droit is where the right of the party as well as the right of the Crown appear upon record. In that case the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the Crown or the subject has the right. These proceedings are had in the Petty Bag Office in the Court of Chancery, and upon any of them being determined against the Crown, the judgment is-quod manus domini regis amoveantur, and by such judgment the Crown is instantly out of possession.

* See Petition of Right Act, 23 & 24 Vict., e. 34.

The most important interest that is hurt by this commission of waste is that of him who has the remainder or reversion after a particular estate for life or years; so if the tenant for life or years commit or suffer any waste, the law now gives an adequate remedy to him in remainder or reversion to whom the inheritance appertains in expectancy, by an action on the case, to recover such damage as a jury may award; or by bill in Chancery praying for an injunction to restrain the tenant from committing waste which may be threatened.

V. DISTURBANCE.-A wrong may be done to an incorporeal hereditament by hindering and disquieting the owner in his regular and lawful enjoyment of it. Such may be constituted by disturbance:-1. Of a Franchise.- -2. Of a Common.- -3. Of a Way.-4. Of Tenure.-5. Of Patronage.

1. Disturbance of a franchise happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free warren, of taking toll, of seizing waifs or estrays, or any other species of franchise, and he is disturbed in the lawful exercise thereof by which his property is damnified; he is entitled to sue for damages by a special action on the case; if for toll, the owner may take a distress if he pleases.

2. The disturbance of common occurs where an act is done by which the right of another to his common is incommoded or diminished, which may happen when a stranger who has no right of common, puts in cattle. Or by surcharging it; that is, putting more cattle therein than the pasture or herbage will reasonably sustain, or the party has a right to do. In all cases of disturbance the commoner may bring an action on the case to recover damages; and in cases of surcharging the common, by distraining or impounding so many of the beasts as are above the accustomed number.

3. The disturbance of ways happens when a person who has a right of way over another's grounds by grant or prescription is obstructed by enclosures or other obstacles; or, by ploughing across it, by which means he cannot enjoy his right of way; or, at least, not in so commodious a manner as he ought to do. The remedy for such disturbance is by an action on the case to recover damages; or by bill in Chancery for an injunction.

DISTURBANCE OF PATRONAGE.

245

4. The disturbance of tenure occurs where a stranger, either by menaces or threats, or by unlawful distresses, or by fraud, contrives to drive a tenant away, or inveigle him to leave his tenancy. This the law justly construes to be a wrong and an injury; the usual remedy for which is an action on the case to recover damages.

5. The disturbance of patronage is a hindrance or obstruction of a patron to present his clerk to a benefice. This happens when a stranger who has no right presents a clerk, who is thereupon admitted and instituted, by which usurpation the patron, by the common law, lost not only his turn of presenting pro hâc vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next vacancy unless in the meantime he recovered his right by a real action.* The reason given for his losing the present turn and not being able to eject the usurper's clerk was, that the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the Church, provided a clerk were once admitted and instituted, to the right of any patron whatever. Usurpation nowt gains no right to the usurper with regard to any future avoidance, but only to the present vacancy if not remedied within six months; and during those six months it is only a species of disturbance. remedy is a writ of quare impedit, now the only action for the disturbance of patronage, in which the patron, not the clerk, is plaintiff. It is commenced by a writ of summons in the same manner and form as in an ordinary action.

The

After an adverse possession of one hundred years, the right to an advowson is extinguished.

A writ of right of advowson is now abolished.
† See 6 & 7 Vict., c. 54; and 28 & 24 Vict., c. 126, s. 26.

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