Statute of limitation. For what the writ lies. e there a disturbance by a stranger presenting a clerk, unless the bishop hath admitted him: but, if admitted, the disturbance is complete; and the patron may bring his action, without making any presentment to the bishop.a Before the stat. of 7 Anne, c. 18, an usurpation of a presentation did, at common law, displace the right of advowson, and no possessory action could be brought; but, since then, no usurper or disturber could divest the right of presentation out of the true patron, or acquire the inheritance of the advowson by wrong; the provisions of which did, in effect, take away all limitation of suit about the right, and enable the true patron to present, at any time, on the church becoming vacant, or, if disturbed, might have had his quare impedit. But, upon the recommendation of the real property commissioners, a statutory limitation is now fixed, by the 3 & 4 Will. 4, c. 27, ss. 29-34. A patron may have this writ for a church, chapel,c vicarage, prebend. So the writ lies for a donative deanery by the Queen, though elective; or an archdeaconry (but not for a chancellorship or commissaryship, for they are mere offices, For whom. although granted for life). So it lies for a bishop disturbed; for the Queen disturbed;f for the grantee of an advowson against the [patron] grantor; for executors on their disturbance, or on the disturbance of their testator; h for husband and wife jointly, or for the husband alone jure uxoris; if he die, the wife may sue alone on that disturbance; i for a claimant under a recovery; for a parson patron of a vicarage; and for the chapter in respect of their possession against the dean. If one have the right of nomination and another the right of presentation, and one of them impede the other, it will lie. If a stranger present, the two may join. Tenants in common and joint tenants must join; likewise coparceners, when there has been no composition to present in turn. An heir cannot have this writ, for a disturbance in his ancestor's lifetime, unless the church be donative. The plaintiff (the action being possessory) must have an immediate right of presentation; a reversion or remainder will not do. It is, generally, advisable, to bring it against the bishop, the pretended Parties to suit. n k a See Reg. v. Chapter of Exeter, 12 Ad. & E. 512; Watson's Cl. Law, 238; Hob. 200. b See also Plowd. Rep. 358, 370; Shelford's Real Prop. Stat. p. 10, and cases there cited. c Bedford v. Lincoln, 2 Willes, 611; 14 Hen. 4, c. 6. d 13 Edw. 1, c. 5; Smalwood v. Bishop of Lichfield, 1 Leon. 205; Owen, 99. e Co. Litt. 344. f Bull. N. P. 125 (a) n.; Watson's Cl. Law, 240; Co. Litt. 344. 2 Roll. Abr. 375. h1 Wms. Exors. 671, 748. i 1 Wms. Exors. 744. 1 F. N. Br. 34. n Dyer, 48, a. o Br. Abr. (Joinder in Action), 103; Co. Litt. 197 b; Wats. C. L. 254. Where there has been a partition, see 7 Anne, c. 18. P 2 Inst. 365; 1 Hen. Bl. 417; see 13 Edw. 1, c. 5, s. 5. 91 Roscoe on Real Actions, 101; 2 Wils. Rep. 150. A donative benefice, be it remembered, descends to the heir at law, a presentation to the executor. a patron, and his clerk; for, if the bishop be not made a party to the suit, and the suit be not determined, until six months are past, the bishop may present by lapse; whereas, if he be made a party, no lapse can accrue, until the right be determined. Again, if the pretended patron be not made a party, the suit is of none effect, and the writ shall abate; for the right of the patron is the principal question in the cause." Again, if the clerk be not made a party, and he have received institution before action brought, the right of patronage may be recovered, but not the present turn; for he cannot have judgment to remove the clerk, unless he be a party.c Writ. bishop of L. A. Victoria, &c. To the Sheriff of W. greeting: Command Esq. and C. clerk that justly and without delay they permit X. to present a fit person to the church of M. which is void and in the gift of the said X. as he saith; and whereof he complaineth that the aforesaid bishop A. and C. unjustly hinder him; and unless they shall so do and the said X. shall give you security to prosecute his suit then summon by good summoners the said bishop A. and C. that they be before our justices at Westminster on &c. to show why they will not do it and have you then the summoners and this writ. Witness, &c. Warrant. Sheriff of the county aforesaid to and W. (to wit.) my bailiffs greeting By virtue of her Majesty's writ of quare impedit under the great seal of Great Britain to me directed I command you or one of you that you command bishop of L. A. Esq. and C. clerk that justly and without delay they permit X. to present a fit person to the church of M. which is void and in the gift of the said X. as he saith; and whereof he complaineth that the aforesaid bishop A. and C. unjustly hinder him and unless they shall so do then I command you that you summon by good summoners the said bishop A. and C. that they be before her Majesty's justices at W. on &c. to show why they will not do it. Given under the seal of my office this day of [Seal of office.] 18-. Summons.d By the Sheriff. By virtue of her Majesty's writ of quare impedit under the great seal of Great Britain to the Sheriff of the county of W. directed and by virtue of the said Sheriff's warrant thereupon to us directed we do hereby require and command you bishop of L. A. Esq. and C. clerk that ye justly and without delay permit X. to present a fit person to the church of M. which is void and in the gift of the said X. as he saith and whereof he complaineth that ye the said bishop A. and C. unjustly hinder him and unless ye shall so do then we do hereby summon you that ye be before her Majesty's justices at Westminster on &c. to show cause why ye will not do it. Given &c. : By virtue of this writ to me directed I have summoned the within-named bishop A. and C. that justly and without delay they permit the within named X. to present a fit person to the church within-mentioned: and I have also summoned by the good summoners above-named the said bishop A. and C. that they be before her Majesty's justices at W. on &c. to show why they will not do it as by this writ I am commanded. The answer of High Sheriff. Pone.a Victoria &c. to the Sheriff of W. greeting: We command you that you put by sureties and safe pledges A. Esq. and C. clerk that they be before our justices at Westminster on &c. to answer us of a plea that they permit X. to present fit person to the church of M. which is void and in the gift of the said X. and whereof the said A. and C. together with bishop of L. unjustly hinder the said X.; and to show wherefore they were not together with the said bishop in our court before our justices at Westminster on a certain day now past as they have been summoned and have you there the names of the pledges and this writ. Witness &c. THE great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention; ad faciendum, subjiciendum, recipiendum; to do, submit to, and receive whatsoever the judge or Court awarding such writ shall consider in that behalf. It is a Common Law writ, secured by several Acts of Parliament, of which the most important are the 16 Car. 1, c. 10; the 31 Car. 2, c. 2 (pre-eminently known as The Habeas Corpus Act); and the 56 Geo. 3, c. 100. The Court of Chancery, and any of the Common Law Courts at Westminster, or any Judge thereof, may award it, either in term or in vacation.c a Issued after the return of the quare impedit. The Sheriff's warrant upon the pone may easily be framed from other precedents and the writ (ending as in writ), "and to show wherefore they were not together with the said bishop in her Majesty's Court," &c. b Bl. Comm. b. 3, ch. 82; Inst. 55, 615; 4 Ib. 182; 4 Bac. Abr. Habeas Corpus, Watson's ca. 9 A. & E. 780. Wilmot's opinions, p. 81. c Watson's case, suprà; Carus Wilson's case, 7 Q. B. 984. A party imprisoned has also a right to the opinion of every Court as to the propriety of his detention.a It is a writ claimable of right, but it does not issue of course. Whether at common law, or on the stat. of 31 Car. 2, c. 2; or 56 Geo. 3, c. 100, the application must be grounded on an affidavit of a probable and reasonable ground for the complaint, and that it is made by or on the behalf of the person imprisoned; and there must be an affidavit, if possible, from the prisoner. The application must also be preceded by his written request, attested by two witnesses.d C Habeas Corpus (Q. B.). e Victoria &c. to the Sheriff of W. greeting: We command you that you have the body of C. D. detained in our prison under your custody as it is said under safe and secure conduct together with the day and cause of his being taken and detained by whatsoever name he may be called or known before our right trusty and well beloved-(as the case may be) our chief justice assigned to hold pleas in our Court before us at his chambers in Rolls' Gardens Chancery Lane London immediately after the receipt of this writ to do submit to and receive all and singular those things which our said chief justice shall then and there consider of him in this behalf; and have there then this writ. Witness &c. Warrant. C. High Sheriff of the said county to -keeper of H.M.'s gaol in to wit. S and for the said county by virtue of H.M.'s writ to me directed I command you that you have the body of a Ex parte Partington, 13 M. & W. 684; Canadian prisoner's case, 9 Ad. & E. 731; 5 M. & W. 32, S. C. b In criminal cases a copy of the commitment, or an affidavit of the refusal of it, must be laid before the Court or judge; Tidd's Pr.347; and the application should be supported by other evidence than the affidavit of the prisoner; 1 Leach, 255. c Canadian pris. ca., 5 M. & W. 35. d Rex v. Wiseman, 2 Smith's Rep. 617. It is usual to obtain at the same time a writ of certiorari from the Crown Office to the committing magistrate, requiring him to return the depositions, &c. before Ch. J. of our lady the Queen e The writ (under 31 Car. 2, c. 2) must be marked thus: " per statutum tricesimo primo Caroli secundi regis." It may be directed and run into a county palatine, cinque ports, or other privileged places in England, Wales, Berwick-uponTweed, Jersey, (7 Q. B. 986,) Guernsey or Man, Crawford's case, 13 Q. B. 613, or "into any port, harbour, road, creek or bay upon the coast of England or Wales, although the same should be out of the body of any county." When the prisoner is in custody for a criminal matter, and the writ be granted by a judge of Q. B., it must issue from the crown side of the Court; Easton's case, 12 Ad. & E. 645. It may be made returnable immediately, which means within due and convenient time; Bettesworth v. Bell, 3 Burr. Rep. 1876. It must be signed with the proper hands of the Chief Justice, or, in his absence, of one of the Justices of the Court out of which the same writ shall be awarded or made; 1 & 2 Ph. & M. c. 13, s. 7; vide Salk. Rep. 150; 2 Str. Rep. 895; 12 Mod. 2; 2 Lord Raym. 1379; if not so signed the Sheriff is not bound to execute it; Rex v. Roddam, Cowp. 672. See also Shepherd v. Shum, 2 Cr. & J. 632. If the Sheriff do not obey the first writ in convenient time, he will not only be subject to the penalties in the 31 Car. 2, but, after being ruled to return it, to an attachment for his contempt, such mode of punishment being within the spirit of the statute referred to; Rex v. Wright, 2 Str. Rep. 915; Rex v. Winton, 5 Term. Rep. 89. The writ, within three days after service, must be returned, and the body brought, if within twenty miles; if beyond the distance of twenty miles and not above one hundred, then within the space of ten days; if beyond the distance of one hundred miles, then within the space of twenty days; 32 Car. 2, c. 2, s. 2. before the Queen herself at his chambers in Rolls' Gardens Chancery Lane London immediately after the receipt of this your warrant to do submit to and receive what the Queen's Ch. J. shall then and there consider of him in this behalf. Hereof fail not at your peril. Given, &c. Return.a By the same Sheriff. C. } I High Sheriff of the said county do humbly certify and return to to wit. the Rt. Honble. H.M.'s Ch. J. in the writ to this schedule annexed that before the said writ came to me (that is to say) on the day of in the year within written C. D. in the said writ named was taken and in H.M.'s gaol for the said county under my custody is detained by virtue of a certain warrant of commitment [or "a writ of capias ad satisfaciendum"] which said warrant [or writ"] follows in these words: Victoria &c. [here set forth the writ and all indorsements verbatim, and conclude thus:] and these are the causes of the taking and detaining the said C. D. which together with his body I have ready as by the said writ I am commanded. Indorsement. The execution of this writ appears in the schedule hereunto annexed. The answer of Esq. High Sheriff. SECTION IV. ACCEDAS AD CURIAM. THIS writ lies for the removal of a plaint out of the Court of a franchise, hundred, Court Baron, or the like (not being Court of record). It is issued out of Chancery; and is executed, by directing a precept, in the form set forth in the text, to the steward and suitors of the Court; commanding them to return the plaint to the Sheriff; and to prefix a day to the parties to appear; and, thereupon, the Sheriff returns the accedas ad curiam with the plaint, &c. annexed.b The writ cannot be had without showing some special cause for the removing of it; as that a freehold is in question there; or some foreign plea pleaded not triable in that Court." a If the facts be substantially stated it is enough. Watson's ca., Ad. & E. 787. It is a good return that the party is dead. Dalt. 219, 251. He may return cepi and languidus; ibid. 250. He cannot return that he was resisted, for he may raise the posse comitatus. The return may be amended before or after filing, 9 Ad. & E. 731. The return need not be supported by affidavit. It seems that it may be impeached and the truth inquired into; see Ex parte Beeching, 4 B. & C. 136; 55 Geo. 3, c. 100, s. 4; Watson's case, 9 Ad. & E. 731. In re Hakewill, 12 C. B. 228; sed vide Reg. v. Dunn, 12 Ad. & E. 599; In re Clarke, 6 Jur. 757, Q. B.; but whether by affidavit or pleading does not seem quite clear. Time for return, ante, 123, n (e). In executing this writ the officer should not deviate from the direct road nor allow his prisoner to go at liberty; if he do it will amount to an escape; Roll. Abr. Escape, D. 9. b Greenwood, 61; Fitz. Nat. Brev. 71; Plowd. 74; Archb. Pr. 989. c Ibid. |