and Re-ve Salomon v.Gordon, 2 Blac. 813. Part II. be prepared with the writ to produce in Court; Against and if the defendant was not served with the Justices, Constables, first writ, it must be connected with the second, nue Officers, as was before directed in the instance of actions on Penal Statutes. After this preliminary evidence, the plaintiff is at liberty to prove his trespass, as in other cases, and this prima facie case will in general call for an answer from the defendants, and throw the onus probandi upon them. Thus it has been holden, that where an action of trespass is brought against a Custom House Officer for seizing goods, it is incumbent on the defendant to shew that the duty has not been paid; and that even a condemnation of the goods before Commissioners of Excise will not dispense with the necessity of this evidence. Shearman, But, by a Statute since made, it is enacted, that, in such case, the proof of payment of the duties shall lay upon the plaintiff and not upon the officer. If the officer prove a condemnation in the Exchequer, this is conclusive evidence that the property is vested in the King, and a complete bar to the action. But, though in the action against the Excise Officer, the Court decided that a condemnation. Henshaw sance, ib. v. Plea 1174. Scott v. ib. 977. 23 Geo. it. c.71. 1.35 7 T. Rep. 633. before the Commissioners did not conclude the Strickland plaintiff, yet, in an action against a Justice v. Ward, it has been holden, that if he prove his warrant, and conviction of the plaintiff of any offence within his jurisdiction, it will be conclusive evidence in his favour, till reversed or quashed, and that the propriety or justice of Sed vide Cowp. 642. Ch. XV. f. 2. Against Justices, Constabless and Revenue Officers. it cannot be controverted at Nisi Prius; but if he had no jurisdiction, or exceeded it, as where having convicted a man of one offence in exercising his ordinary calling on a Sunday, he afterwards convicted him of another such offence on the same day, which could not possibly be committed; the second conviction being absolutely void, an action lies at the suit. of the party injured, without quashing it; and, it has been said, that in actions of this kind, Cowp.640. the Justice is obliged to shew the regularity of his proceedings, and that the informations, &c. upon which his conviction was founded must be produced and proved in Court." It may be proper to add, to what has been already said respecting these actions, that the Justice may, by the Stat. 24 Geo. III. c. 44. 1. 2. and the Excise and Custom House Officers by the Statutes before alluded to, within one month after the notice, tender amends to the party, or to his Agent or Attorney, and in case it is not accepted, plead such tender in bar, together with the General Issue; and if the Jury find it to be sufficient, the defendant will have a verdict; and if the Justice or Excise Officer shall have neglected to have tendered any amends, or not tendered sufficient, he may, at any time before issue joined, pay such sum into Court as he shall sce fit, whereupon such proceedings, &c. shall be had as in other cases where a defendant is permitted to pay money into Court, Where DD 'Cripps v. Durden, 2 Hill v. Bateman, Part II. Where the defendant pleads a tender, the Against plaintiff may either reply that there was no Justices, Constables, tender, or that the sum tendered was not sufand Reve- ficient; in the one case, the issue will be on nue Officers. the defendant; in the other, the evidence will be the same as if the cause had stood on the General Issue. CHAP. XVI. OF THE EVIDENCE IN ACTIONS BY AND AGAINST SECTION I. In Actions by the Patron or Parson to try the Title to, or obtain Possession of the Church. Quare im- I. HEN the Title to present is disputed, W tone pedit. and the Bishop admits the clerk of one patron in preference to the other, or on account of the dispute refuses to admit either, the patron whose clerk is refused admission brings, his quare impedit against the Bishop, the other patron and his clerk. In this action the pleadings are special; the declaration states the title of the plaintiff'; that he is seised of a manor to which the advowson is appendant; or of of the advowson itself in gross, as the case may be; that he, or those under whom he claims, have presented on a former occasion; that the clerk so presented has been instituted and inducted into the living; and that the church having become void, his right has been disturbed by the defendant. The defendant, viz. the other patron, (for the Bishop and clerk usually disclaim any title,) sets out, in his plea, his own title, and concludes with a traverse of some fact in the declaration, generally the plaintiff's seisin of the manor, the appendancy of the advowson to it, or the plaintiff's seisin of the advowson in gross. On pleadings so framed the plaintiff must be prepared with evidence to support his claim as stated in the declaration. (i) He must prove at least one presentation by himself, or those from whom he derives title, and that the clerk so presented was duly instituted and inducted into the living. To shew this he should produce and prove, by the subscribing witnesses, the presentation and letters of institution, and (i) It has been usual to insert but one count in a declaration in quare impedit, and when the defendant could demand oyer of the original writ, and avail himself of any variance between that and the declaration, there might have been great difficulty in doing it; but now that oyer of the original writ cannot be obtained, there does not seem to be any objection to the plaintiff in this case more than in any other, stating his title in a variety of ways so as the more certainly to avoid a variance between his pleading and his proof. In a very recent instance a declaration was so drawn, and no objection made to it. Birch v. Bishop of Litchfield and Coventry, 3 Bos. & Pul. 444. Part II. Quare impedit. Vide ante, 117. also prove the induction by some witness present at the time, (j) or at least prove, that the person so instituted continued in peaceable possession of the church. If the letters of institution are lost, the bishop's register should be produced, and as a presentation may be by parol, that alone has been holden to be sufficient, and where a blank was left for the name of the patron, parol evidence was received to shew who was the person actually presenting. In cases where there is reason to apprehend evidence of title in the defendant, it will be proper to prove as many instances of presentation as possible; for, as this is the only way of exercising the right, every instance gives additional strength Hob. 163. to the title. But if the defendant merely plead the general issue, viz. that he did not disturb, the title does not come in question, and the plaintiff may either have judgement, or go for damages by proving the disturbance, to shew which he must prove the presentation, the bishop's refusal, and the institution or presentation of the other clerk. Vaughan, 6, &c. The defendant, in cases where his clerk also Hob. 163. has been refused admission, must not only be prepared with evidence to controvert the title of the plaintiff, and shew that the former presentation was an usurpation upon his right; but must also support his own title, by the like (j) As to the manner of induction, and the different acts necessary to be done, see Burn's Ecclesiastical Title Benefice. evidence |