Cornwallis v Hood
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 807
COURT OF COMMON PLEAS
[33] terming trinitatis, 17 car. 2, com. bang. cobnwallis versus hood. Quare impedit. The late abbot of Chersey in the county of Surrey seised in fee of the manor of C. in the said county, to which the advowson in question did belong in right of his monastery, the church being full of one James Nichols, with the assent of the covent, ii 27 H. 8, anno Dom. 1536, granted the next avoidance to Griffith and others, who about a month after, in the same year, did assign it to John Epsom. The abbot being seised of the reversion, in 29 H. 8, did by deed and fine convey the said manor and advowjon to H, 8 and his successors; from him this manor and advowson descends to Edward 6th, Edw. 6th the first year of his reign did grant this advowson to Cranmer Archbishop of Canterbury and his successors, who was seised of it in gross, he died, Reginald Poole succeeded him in the archbishoprick, the church becomes void by the death of Nichols, 1567, which was the first avoidance after the abbots grant, and upon the same day 9 December 1567, 4 Phil. & Mar. one Francis Darcy usurpt upon John Epsom, and presented one Dean, who was admitted, instituted, and inducted in the time of Queen Mary. Poole dies, then the stat. 1 Eliz. cap. 19, was made, then Parker is made archbishop, afterwards Deane dies, Epsom presents upon Darcy, who usurpt upon him, and presented one Clarke, who was admitted, instituted, and inducted ; Parker dies, the church voids in the time of Archbishop Grindall, Epsom presents, then Bancroft is elected archbishop; the church voids again, Carey presents one 808 CORNWALLIS V. HOOD CARTfiR, 34. Hsrnderj, who is admitted, instituted, and inducted, then Abbot was archbishop, then the church became void again, then Darcy claiming under Carey (under whom the plaintiff claims) presents one Cooke; then Abbot dies, and Laud succeeded; Darcy assigned the next avoidance to the plaintiff: Laud dies, and Juxton is archbishop, before whose consecration Gooke resigns, and then Juxton presents Hood the now defendant. Demurrer. Brome Serjeant. In this case the question was: Whether the presentation being made upon an archbishop before the stat. of 1 Eliz. c. upon the grant of the next avoidance; whether this be within the Stat. West. 2, cap. 5 ? [34] I conceive for that in the statute there is a clause which helps the presentation of bishops in the time of vacancy, that therefore they have not any assistance elsewhere. This statute was not made to bring in and give to them advantage to purchase more, whereas the policy of those times did restrain them, but it was made to give them a right, and to put them in the way of a remedy of having their right, and of recovering their right. True it is, the words of the Statute of West. 2 do not reach them in any particular clause, till it comes to the clause of viris religiosis. But there is a clause, statutum est quod hujusmodi prfesentationis non sint hujusmodi rectis hseredibus, aut illis ad quos post mortem aliquorum hujusmodi advocationes reverti debent, &c. and doth not say, luccessorum vel antecesaorum. The archbishop is within the equity of the statute, and this statute ought to be taken by equity, Broke tit. Presentment, 46, Hobart, p. 240, Lord Stanhops case, 6 Rep. Boswells case, Cro. Jac. 673, Dalton versus Episcop. Eliensis, Obj. They on the other side object to us, because we did decline joyning with them upon the traverse. Reap. We say that when the church avoided by the death of E. B. did present. We plead not precisely that it was the next avoidance; and because we deny to joyn with them, this is a confession my brother said. In our case if we are aided by the Stat. W. 2, their traverse is not material, because whether it were the first or the second, they make their conclusion, that it was an usurpation, and the Stat. W. 2 saith, that this usurpation shall not bind us. Obj. It is viris religiosis in time of vacancy. Resp. Thata put in, because there is no parson in being. In the other cases there were parties in being, as infants, women, &c. therefore that clause was put in, that they should be within the remedy of hujusmodi prsesentationes. Bridgman Chief Justice. A man purchaseth an advowson and dies, his heir is an infant, then there is an usurpation, whether the infant shall be holpen within the Stat. W. 2, this is the case in effect. The case here is, that the usurpation is upon Cardinal Poole, and not upon Cranmer. It must be within the clause of hujusmodi prsesentationes, and the Statute of Eliz. will not help them. Its a fine case. Newdigato Serjeant, Al auter term g quer. I conceive Hood hath no title. In this case are three points. 1. If there be a grant of the next avoidance by an abbot, and the reversion be granted to an archbishop, the church becomes void when the bishop hath the temporalties in bis own hands, a stranger usurps, the six months pass; whether this doth not bind the archbishop and his successors? 2. Whether by the Statute of Elizabeth the church becoming void 1 The grantee of the next avoidance, whether his presentation makes the ease better than before? [35] 3. Whether the subsequent usurpation made by Carey do strengthen our title at all? I shall admit that against my self. For the first point. The Stat. W. 2 doth not extend to bishops and their successors. At common law it is agreed upon usurpation, he could have no advantage before W. 2 to bring a quare impedit, or present. This case is not helpt by the statute. Reasons. OARTSH.38. CORNWALLIS t'. BOOD 809 1. Neither within the words nor meaning of the statute; not within the mischief, ergo not within the equity, because it is an usurpation not in the time of the vacancy, but when the temporalties were in the bishops hands. And for vacancy there is a proviso. 2. Here is a time of lachess, the patron was a spiritual person. 3. The successor in this case can be iu no better condition, than be in whose right he claimeth. The case in Hob. 240, Lord Stanhops case was urged against me; this case is no binding opinion, and it was adjudged against my Lord Hobarts opinion which he argued. Brook puts the case what the common law was before the Stat. of Westm. 6 Rep. BosweUs case, Brooks Presentment, 46. This particular case is not taken notice of in the preamble of the statute. Its not within the words of the purview, or the enacting part; it is not within the mischief intended to be provided for. There is express provision in the body of the Act to relieve bishops, &c. then by the rule of Ley, where there is a particular clause in an Act of Parliament in a particular case, I conceive he shall not interpret, or by a feigned construction and to the remedy the statute gives. Expressurn facit cestatre taciturn. Coke, Comment sur Littleton, sect. 443. If an usurpation be had to a church in time of vacation, this shall not prejudice the successor, to put him out of possession, but that at the next avoidance he shall present, and have quare impedit, Pitzh. N. B. 34, M, otherwise if the usurpation shall be made in the time of the predecessor, for this shall put the successor out of possession if the six months are past, Coke, M. Ch. p. 360. And there is reason for it, there is lachess in the bishop in suffering the usurpation. The statute gives remedy to those that were under disability. The bishop well might have prevented this usurpation, and have preserved his...
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