Definition
In ecclesiastical law, a litigious action (or litigious presentation) arises when two or more competing patrons simultaneously present different candidates to a bishop for the same vacant church living. The resulting contest—over which patron holds the rightful advowson and which presentee should be instituted—renders the church "litigious." Until the dispute is resolved, the bishop may neither safely institute either candidate nor collate on the bishop's own authority without risk of legal challenge.
The doctrine belongs to the law of advowsons: the property right, historically treated as a form of incorporeal hereditament, to nominate a clerk for appointment to an ecclesiastical benefice. When that right is contested between rival claimants presenting simultaneously upon the same avoidance, the living enters a litigious state.
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Common Confusion
The word "litigious" in modern usage means simply "prone to suing" or "of a contentious nature." In the ecclesiastical law context, "litigious" is a term of art describing a specific procedural status of a church living—not the temperament of a party. A litigious church is not a combative institution; it is a benefice frozen in legal uncertainty because competing patrons have made rival presentations. Researchers encountering "litigious" in historical ecclesiastical records should not interpret it through the modern colloquial lens.
"Litigious actions" in this context should also not be confused with the broader category of civil litigation. The phrase operates exclusively within the narrow jurisdiction of ecclesiastical courts and the common law courts that handled advowson disputes (historically, the writ of quare impedit).
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Why It Matters in Research
Researchers working in pre-twentieth-century English ecclesiastical records, equity materials, or property law sources will encounter litigious presentations and litigious churches in a very specific procedural posture. Several traps exist:
First, the term disappears almost entirely from American legal sources. Advowson law never transplanted meaningfully into American jurisdictions, which separated church and state and did not recognize the right of private presentation to ecclesiastical livings. If you encounter "litigious" in an American legal context, it almost certainly carries its colloquial meaning, not the ecclesiastical term of art.
Second, in English sources, the doctrine connects tightly to the writ of quare impedit, which was the common law remedy for a patron whose right of presentation was obstructed. Understanding litigious presentations requires following the procedural chain: avoidance of the living → competing presentations → litigious status → bishop's options → quare impedit or darrein presentment proceedings.
Third, Bouvier's treatment is sparse. The citation to Stephens' Commentaries (3 Steph. Com. 417) is the more useful doctrinal source for researchers needing substantive analysis. Mozley & Whiteley's Law Dictionary (Moz. & W.) provides the definitional anchor Bouvier himself relies on. Researchers should not treat Bouvier's brief entry as comprehensive on this point.
Fourth, the six-month rule in English ecclesiastical law intersects with litigious presentations: if a bishop fails to institute within six months of avoidance, the right of collation lapses to the bishop or, in some cases, to the Crown. A litigious dispute could complicate or interrupt that timeline, creating secondary questions about lapse that appear in chancery and common law records.
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Historical Dictionary Support
Bouvier's Law Dictionary provides only a capsule entry: a church is litigious when two rival presentations are offered to the bishop upon the same avoidance of a living, citing Mozley & Whiteley and Stephens' Commentaries. Bouvier does not elaborate on procedure, remedy, or the bishop's options during the litigious period.
This sparseness reflects the term's limited relevance to American legal practice even at the time of Bouvier's writing. English ecclesiastical law treatises—Burn's Ecclesiastical Law, Gibson's Codex Juris Ecclesiastici Anglicani, and Phillimore's Ecclesiastical Law—provide far more complete treatment and are the appropriate shelf sources for substantive research into this doctrine.
No significant divergence among historical dictionaries exists on the core definition; the doctrine was settled enough in English law that compilers agreed on its contours. What historical dictionaries uniformly omit is the procedural machinery: how the bishop was to act during the litigious interval, the role of the ordinary, and the interaction with lapse doctrine.
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Jurisdictional Note
This doctrine is English ecclesiastical law and has no meaningful American analog. Researchers working in English legal history, Church of England records, or pre-1900 English property law will find it operative. American researchers encountering the term in any context should verify whether the source is drawing on English ecclesiastical tradition before applying the technical meaning.
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Encyclopedia Cross-Reference
No Law Mind Encyclopedia entry directly addresses advowson law or ecclesiastical presentations. The following entries address adjacent procedural and enforcement concepts that may assist researchers working on related questions of contested rights and compelled government or institutional action:
remedies_47: Mandamus — Compelling Government Action, Clear Right, and Ministerial vs. Discretionary Acts (The Law Mind Remedies & Equity Encyclopedia) — relevant for understanding the structural parallel between compelling a bishop to act and compelling other official actors.
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