and where. The Statute of Westminster the 2nd (f) remedied this, as how remedied, well in the case of lay as of ecclesiastical advowsons (g), and gave writs for the former species. But this statute only remedied some particular cases; therefore, in those not within its provisions, the persons affected by usurpation are as completely barred as at common law (h), and does not revest the title, but only gives a possessory remedy to remove, within six calendar months, the incumbent when named in the writ (¿), or a defendant in a bill in equity, which, in the case of an equitable title, is equivalent to the writ of quare impedit sued out at law, and the plaintiff is within this statute (k). In the case of lay advowsons this is still so, for they are not within the English statute 7 Anne, c. 18, which, in terms, applied to only the advowson or patronage of any "church, vicarage or other ecclesiastical promotion," or the corresponding statute for Ireland (1). By the latter statute the clerk of the patron recovering in quare impedit may have against the clerk of the defendant an account of the profits of the benefice (m). Advowsons generally, eo nomine, indeed, are expressed in section 34 of 3 & 4 Will. 4, c. 27, and after a certain period the same statute (n) precludes the bringing of writs of right of advowson and writs of quare impedit, and a subsequent statute (o) precludes the bringing the latter writs after the 10th October, 1860. As in the statute De Prærogativa Regis (p), and the Statute of Westminster 2 (g), so in the 3 & 4 Will. 4, c. 27, advowsons of churches only are within its provi (f) 13 Edw. 1, c. 5. (g) Sect. 4. (h) Ir. Term Rep. 424. (i) Co. Litt. 344 b; Boswell's case, 6 Rep. 50 a; Stanhope v. The Bishop of Lincoln, Hob. 241, 242. (k) Dowling v. Maguire, Lloyd & G. 1, 24. (1) 1 Geo. 2, c. 23. See Thomp son and Ur. v. The Bishop of (m) See Crampton v. The Bi- (n) Sects. 36, 37, 38. (0) 23 & 24 Vict. c. 126, s. 26. (g) 13 Edw. 1, c. 5, ss. 1, 2, 3. Advowsons of churches only within c. 27. Whether advowsons collative within it. Only inheritance of advow sons of churches within it.Not chattel interests. sions, and not advowsons of a lay nature, as of hospitals (r). The section 34, in terms, extends to advowsons generally, eo nomine, and not in the terms used in the three preceding sections. But the context of the statute shows that only advowsons of ecclesiastical benefices are within the section 34, for the only portions of the statute relating to advowsons are the three preceding sections, and they are in terms restricted to benefices of that nature. Doubts were entertained whether this statute embraced advowsons of churches when collative. In a case in Ireland before this statute was extended to that part of the United Kingdom (s), they were contended to be within it. These doubts, as to these advowsons. when belonging to bishops, were removed by a subsequent statute (t), which extended the former one to Ireland, as to advowsons generally of ecclesiastical benefices. Some of the terms of the former statute, strictly interpreted, certainly point to advowsons presentative rather than to advowsons collative. But adverting to the terms of the section 30 that no person shall recover, &c., and to those of the section 1, that person shall extend to a body politic, corporate, or collegiate, the foundation for those doubts was very slight. However, the latter statute extended the former one to such cases, but prospectively only, and not in cases of lapse. Only the inheritance, however, of advowsons of churches, and as well collative, since 1843 (u), as presentative, is within the 3 & 4 Will. 4, c. 27. Presentments and collations to such advowsons, as interests of a mere chattel nature (x), are chattels where the church (r) Co. Litt. 342 a; Att.-Gen. v. Ewelme Hospital, 17 Beav. 465. See also Att.-Gen. v. St. Cross Hospital, Ib. 435; 7 B. & C. 189; 8 Bing. 502, 512, 551. (8) See London v. Derry, 1 Smythe's Ir. Rep. 536. (t) 6 & 7 Vict. c. 54. (x) See 3 Lev. 47; 4 Leon. 109; F. N. B. 34, n; Co. Litt. 388 a; Mirehouse v. Rennell, 3 Bing. 233; 7 B. & C. 113; 8 Bing. 490, S. C. is situated (y), and, as before that statute, governed by the Statute of Westminster the 2nd, 13 Edw. 1, c. 5 (z), which is a Statute of Limitation (a), and as well such interests of an equitable as of a legal nature (b). The presentments of coparceners, when lost by usur- Presentments by coparceners. pation, are still counted between them and their cotenants, but those whose presentments have been so lost are entitled to present again when their turns, after reckoning such usurpations, arrive again (c); and if any of such usurpations have been by any of the other coparceners, the presentments of the latter, when their turns arrive, after reckoning such usurpations, will be unaffected, and may be exercised as if no such usurpations had occurred (d). minster 2, or Whether these chattel interests in advowsons of do- Whether chattel innatives and of perpetual curacies be within the Statute terests within of Westminster the 2nd, or be subject to the common stat. Westlaw in relation to such interests in advowsons presenta- subject to tive, may be a question (e). That statute, in terms, common law. applies to only the latter species of advowson. If within that statute, the clerk, after the expiration of six calendar (f) months, cannot be removed. If not within it, but subject to the common law in relation to such interests in advowsons presentative (g), he cannot be removed from a donative after appointment thereto and possession thereof, or from a perpetual curacy after being nominated thereto and licensed to officiate therein. For the reason which, at common law, was applicable (y) Hob. 303. (z) 6 Co. 48 b; 7 Ib. 28 a; Co. Litt. 344 a. (a) See Boteler v. Allington, 3 Atk. 453. (b) Ib.; Gardiner v. Griffith, 2 P. W. 404. See also Mutter v. Chauvel, 1 Mer. 475; 5 Russ. 42; Dowling v. Maguire, Lloyd & G. 1, 24. (c) 13 Edw. 1, c. 5; 7 Anne, (d) Pyke v. The Bishop of (e) See Mutter v. Chauvell, (g) Co. Litt. 344 a, b. Land and rent of the church. Other incor in the case of an advowson presentative, and on which, as to these interests, the Statute of Westminster the 2nd was founded, the peace of the church (h), is equally applicable to these interests in donatives and perpetual curacies, and ubi eadem ratio, ibi idem jus (i). That statute also gives to the person deprived of his presentation damages for the loss of it (k), but, in terms, in the case of advowsons presentative only. Such damages are now, however, recoverable within only two years after the cause of action or suit (1); and by recent statutes (m), where damages can be recovered in a writ or action of quare impedit, costs also may be recovered. But whether the provision in the Statute of Westminster the 2nd giving damages applies to donatives, perpetual curacies, and lay advowsons, is at least questionable. They might be considered within the equity of that statute. If not within that statute they are not within the recent ones as to costs. As in the Roman law (n) the property of the church was not liable to prescription, so by the common law of England, as in the case of property belonging to the Crown (o), prior to the statutes 2 & 3 Will. 4, cc. 71 and 100, and 3 & 4 Will. 4, c. 27, the maxim, nullum tempus occurrit ecclesiæ, was applied, and, in some cases, still is applicable, to the real property of the established church of this country (p). These statutes have abrogated, as to land and rent, that maxim, and have placed such property upon the same foundation as that of laymen (q). Other incorporeal hereditaments to be here noticed ditaments. prendre. c. 71. are those which are the subjects of two other statutes poreal herepassed in the reign of William the Fourth (r). Rights of common and other profits or benefits law- Profits à fully claimable at common law by custom, prescription, or grant from land, profits à prendre, are one class of the subjects of the chap. 71. The words "other profit or benefit" in chapter 71 might Except tithes, have included tithes, rent and services, and therefore these subjects are expressly excepted, and, as inheritances, are embraced by the chapter 27 already noticed. Tithes, as a chattel (s), are not within chapter 27, and by section 1 of it moduses or compositions belonging to spiritual or eleemosynary corporations sole are excepted from that chapter, and prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes, are the subjects of the chapter 100, and will be presently considered. rent and ser vices. Profits or benefits, profits à prendre, are of various Kinds of such kinds, as common of pasture (t), of turbary (u), com- profits. mon of estovers- -a common which must be claimed for and to be spent in a house only—of piscary, of digging for coals, minerals, and the like (x); a right to the tenth part of all manner of corn growing in a hundred acres of land after the tithes of the parson taken, which is a temporal and not a spiritual right (y); a right of pasture (z); to take the sole and several herbage of land (a); to enter on land and to cut down and carry away the trees and wood growing thereon (b); and to (r) 2 & 3 Will. 4, cc. 71, 100. (8) Vide ante, p. 341 et seq. (t) Co. Litt. 122 a; Warburton v. Parke, 2 Ex., N. S. 64. (u) Ib. 4 b; 122 a; Touch. 96; Beere v. Fleming, 11 L. T. R., N. S. 49. (x) Co. Litt. 122 a. (y) Co. Litt. 159 a. See also Pigot v. Hearn, Cro. El. 599; |