Abridgment of Ecclesiastical Laws, Treatise · Chapter 23

Abridgment of Ecclesiastical Laws · Treatise · Chapter 23

p. 251CHAP. XXIII.

Of Collation, Preſentation, and Nomination.

1. What Collation is, and how it differs from Preſentation.

2. Collation gains not the Patronage from the Crown.

3. The Ordinary's Collation by Lapſe is only in the Patron's right.

4. What Preſentation is, and how in eaſe of Co-heirs, or Joynttenants, or Tenants in Common.

5. Whether the Grantee of the next Preſentation, not Preſenting at the Firſt Avoidance, ſhall loſe the benefit of his Grant?

6. The Right of Preſentation is not an Eccleſiaſtical, but Temporal Inheritance, and cognizable at the Common Law.

7. The power of the Ordinary in caſe of Coparconers, Joyntenants, or Tenants in Common, as to Preſentation.

8. In what Caſe the Biſhop hath Election, whoſe Clerk he will Admit.

9. Whether a Preſentation is revokable before Inſtitution?

10. Whether the Son may ſucceed his Father in the Church? and who may vary from, or repeal his Preſentation.

11. What Nomination is, and the Qualifications thereof.

12. In what Caſe the Preſentation is the Nomination, or both as one in Law.

13. In what caſe the Nominator ſhall have a Quare Impedit, as well as he that hath Right of Preſentation; And there may be a Corrupt Nomination, as well as a Corrupt Preſentation.

14. Whether the Collatee be Incumbent, if the Biſhop Collate him within the Six months? And in what Caſe the Kings Preſentation within the Six months may be an Ʋſurpation or not.

15. Where the Ordinary Collates, the Patron is to take notice of it at his peril.

16. Who ſhall Preſent in caſe the Ordinary, to whom a Lapſe is devolved, be within the Six months tranſlated to another Biſhoprick.

17. A Reſignation to a Proctor, without the Biſhops Acceptance, makes not the Church void.

p. 25218. A Parochial Church may be Donative, exempt from the Ordinary's Juriſdiction, and is Reſignable to, and Viſitable by the Patron, not the Ordinary.

19. Where Two are to Preſent by Turns; what Preſentation ſhall ſerve for a Turn, or not.

20. By the Canons the Son may not ſucceed the Father in the ſame Church.

21. To what a Preſentation may be made.

22. The Kings right of Preſentation as Supream Patron.

23. In what caſe the Kings Prerogative to Preſent doth not take place.

24. In what Caſes it doth.

25. To whom the Patronage of an Archbiſhoprick belongs.

26. Whether Alien Miniſters are Preſentable to a Church in England?

27. In what Caſes the Patron may Preſent de novo.

28. Difference between the King and a Common perſon in point of Preſentation.

29. A Collation makes no Plenarty where it is tortious.

30. Preſentation may be per parol as well as by Writing.

31. What amounts to a Revocation of the King's Preſentation.

32. Cauſes of Refuſal of the Clerk Preſented.

33. Certain Law Caſes pertinent to this Subject.

34. Whether Inſtitution granted after a Caveat entered, be void?

35. What ſhall be held a Serving of a Turn, and good Plenarty and Incumbency, againſt a Patron in Severalty.

36. A Clerk refuſed by reaſon of his not being able to ſpeak the Welſh Language.

37. What is the beſt Legal Policy upon every Preſentation by Ʋſurpation.

38. One of Two Grantees of an Advowſon, to whom the other hath releaſed, may Preſent alone, and have a Qua. Imp. in his own Name.

39. A Clerk refuſed for Inſufficiency by the Biſhop, may not afterwards be Accepted.

(1.) COllation in its proper ſignification, is the beſtowing of a Benefice by a Biſhop that hath it in his own proper right, gift, or patronage; diſtinguiſh'd from Inſtitution only in this, That Inſtitution into a Benefice is at the inſtance, motion, or Preſentation of the Patron, or ſome other having pro tempore the Patrons Right, performed by the Biſhop. Extra. de Inſtit. & de Conceſſ. Praeben. &c. But Collation is, not only when the perſon is Admitted to the Church or Benefice by the Biſhop or other perſon Eccleſiaſtical, p. 253but alſo when the Biſhop or that other Eccleſiaſtical perſon is the rightful Patron thereof; or when the Biſhop or Ordinary hath right to Preſent for Lapſe of the Patron: and yet ſometimes Collation is and hath been uſed for Preſentation aaSt 25 Ed. 3. 6.. And ſo Preſentation, Nomination, and Collation, are commonly taken for one and the ſame thing in ſubſtance, though at times diſtinguiſhedbb14 H. 7. 22. by Kingſmill.: And whereas it hath been a Queſtion, If one hath the Nomination, and another the Preſentation, which of them ſhall be ſaid to be the very Patron; it hath alwaies been taken to be the better opinion, that he who hath the Nomination, is Patron of the Church. And where an Abbot had the Preſentation, and another the Nomination, and the Abbey ſurrendred to the King; he that hath the Nomination ſhall now have all; for the King ſhall not Preſent for him, that being a thing undecent for the Kingcc1 Car. B. R. Dickenſon and Green… Caſe. Pop…. 1…8.. But as to Collation and Preſentation, they were in ſubſtance one and the ſame thing, as aforeſaiddd27 E. 3. 64.: But to ſpeak properly, Collation is where the Biſhop himſelf doth freely give a Benefice, which is of his own Gift by right of Patronage or Lapſeee25 Ed. 3. 6. 1 Ed. 4.. This word [Collation] ſeems alſo to be frequently uſed when the King Preſents; and hence it is that there is a Writ called [Collatione facta uni poſt mortem alterius, &c.] directed to the Juſtices of the Common Pleas, Commanding them to direct their Writ to a Biſhop, for the Admitting one Clerk in the place of another Preſented by the King, which Clerk (during the Suit between the King and the Biſhops Clerk) is departed this life: For Judgment once given for the Kings Clerk, and he dying before his Admiſſion, the King may beſtow his Preſentation on anotherffReg. of Writs, fo. 31. b.. This Collation, Preſentation, and Nomination, are in effect Synonima, being diſtinguiſhed only in reſpect rather of Perſons, than of Things.

(2.) Yet there may be a great difference betwixt Preſentation and Collation, which gains not the Patronage from the King, as appears in the Caſe of the Queen againſt the Biſhop of York, where the Queen brought a Quare Impedit againſt the ſaid Biſhop, and one Monk, and counted upon a Preſentment made by King Hen. 8. in the right of his Dutchy of Lancaſter, and ſo conveyed the ſame to the Queen by Deſcent: The Biſhop pleaded, That he and his Predeceſſors have Collated to the ſaid Church, &c. and Monk pleaded the ſame Plea, upon which there was a Demurrer. And it was moved by Beaumont Serjeant, That the Plea is not good, for a Collation cannot gain any Patronage, and cannot be an Uſurpation againſt a Common perſon, much leſs againſt the Queen, to whom no Lapſes ſhall be aſcrib…d: and although the Queen is ſeized of this Advowſon in the right of her Dutchy, yet when the Church becomes void, the right to Preſent veſts in the Royal perſon of the Qu. and yet vid. the Old Regiſt. 31. Quando Rex praeſentat non in jure Coronae, tunc incurrit ei Tempus. Hamm. Serj. p. 254By theſe Collations the Queen ſhall be put out of poſſeſſion, and put to her Writ of Right of Advowſon; but the ſame ought to be intended, not where the Biſhop Collates as Ordinary, but where he Collates as Patron, claiming the Patronage to himſelf, for ſuch a Collation doth amount to a Preſentation; and here are two or three Collations pleaded, which ſhould put the Queen out of poſſeſion, although ſhe ſhall not be bound by the Firſt during the life of the firſt Incumbent. Vid. Br. Quare Impedit, 31. upon the abridging of the Caſe of 47 E. 3. 4. That two Preſentments the one after the other ſhall put the King out of poſſeſſion, and put him to his Writ of Right of Advowſon, which Anderſon denied. And it was holden by the whole Court, here is not any Preſentation, and then no poſſeſſion gained by the Collations: and although the Biſhop doth Collate as Patron, and not as Ordinary, yet it is but a Collation. And there is a great difference betwixt Collation and Preſentation; for Collation is a giving of the Church to the Parſon, but Preſentation is a giving or offering of the Parſon to the Church, and that makes a Plenarty, but not a Collation ggPaſch. 33 Eliz. C. B. The Queen and the Biſhop of York's Caſe. Leon. Rep..

(3.) The Collation of the Ordinary for Lapſe is in Right of the Patron, and will ſerve him for a Poſſeſſion in a Darrein Preſentment, as appears by Colt and Glover's Caſe againſt the Biſhop of Coventry and Lichfield, where it is ſaid, That the Ordinary, or he that preſents by Lapſe, is a kind of Attorney made by Law, to do that for the Patron, which it is ſuppoſed he would do himſelf, if there were not ſome lett; and thefore the Collation by Lapſe is in right of the Patron, and for his turn, 24 E. 3. 26. And he ſhall lay it as his poſſeſſion for an Aſſize of Darrein Preſentment, 5 H. 7. 43.hhMich. 10 Jac. rot. 2642. Colt and Glov. verſ. Biſh. of Cov. and Lichf. Hob. Rep.. It ſeems alſo by Gawdy's Caſe againſt the Archbiſhop of Canterbury and others, That although a Biſhop Collate wrongfully, yet this makes ſuch a Plenarty as ſhall barr the Lapſe of the Metropolitan and the KingiiHill. 17 Jac. rot. 1840. Caſe Gawdy verſ. Archb. of Can…. & al. Hob. Rep. And this Collation by Lapſe is an act and office of Truſt repoſed by Law in the Ordinary, Metropolitan, and King; the Title of Lapſe being rather an Adminiſtration than an Intereſt, as in Colt's Caſe aforeſaid; which Title of Collating by Lapſe may be prevented by bringing a Quare Impedit againſt the Biſhop: Alſo where and in what Caſes the bringing of that Writ againſt the Biſhop ſhall or ſhall not prevent ſuch Collation, appears in the Caſe of Brickhead againſt the Archbiſhop of York, as Reported by Sir Hen. Hobart Chief JuſticekkMich. 15 Jac. Brickhead verſ. Archb. of Y…k. Hob. Rep..

(4.) Preſentation is the Nomination of a Clerk to the Ordinary to be Admitted and Inſtituted by him to a Benefice void, and the ſame being in Writing, is nothing but a Letter Miſſive to the Biſhop or Ordinary, to exhibite to him a Clerk to have the Benefice voided, the Formal force hereof reſteth in theſe words, viz. Praeſento p. 255vobis Clericum meum. Thus Preſentation properly ſo called, is the act of a Patron offering his Clerk to the Biſhop, to be Inſtituted in a Benefice of his GiftllThe Form whereof vid. Reg Orig. fo. 3… 2. a.. It is where a man hath a Right to give any Benefice Spiritual, and preſents the perſon to the Biſhop, to whom he gives it, and makes an Inſtrument in writing to the Biſhop in his favour; and in caſe there be divers Coheirs, and they not according in the Preſentation, that which is made by the eldeſt of the Coheirs, ſhall be firſt Admitted; but if it be by Joyntenants, or Tenants in Common, and they accord not within Six months, the Biſhop ſhall preſent by LapſemmTerms of Law, verb. Preſentment.. By the Statute of 13 Eliz. cap. 12. a Preſentation of an Infant to a Benefice is void. And although a Preſentation, being but the Commendation of a fit perſon by the Patron to the Biſhop or Ordinary to be Admitted and Inſtituted into a Benefice, may be done either by word alone, or by a Letter or other writing, yet the Grant of a next Avoidance is not good without DeednnMich. 31 & 32 Eliz. C. B. Cripps & the Archb. of Canterbury's Caſe. Owen 47.. But a Preſentation, being no other than a Commendation of a Clerk to the Ordinary (as aforeſaid) and only a thing concerning an Advowſon, without paſſing any intereſt of the Inheritance of the Advowſon, may be done by word only; upon which ground it was Reſolved by the whole Court, That the Kings Preſentation unto an Advowſon Appendant to a Mannor parcel of his Dutchy, under the Great Seal of England, without the Seal of the Dutchy, was well made, and goodoo11 Jac. C. B. The King and the Biſhop of Linc. Caſe. Alſo Mich. 8 Jac. C. B. Caſe betwixt the King and the Biſhop of Chicheſter, then vouched and affirmed for Law.: Yea, and for the ſame Reaſon, for that a Preſentation is but a Commendation, and toucheth not the Inheritance, was the Kings Preſentation to the Deanary of Norwich held good, albeit in the ſaid Preſentation he miſtook and miſ-recited the Name of the Foundation of the DeanaryppStephen Gardener's Caſe there vouched by Cook, Chief Juſtice Vid. Mich. 3 Car. B. R. Stephens and Potter's Caſe. Cro. 1. par. 70, 71. acc. Vid Trin. 8 Jac. C. B. rot. 18 11. Cro. 2. par. 247. the ſame Caſe.Mic 3.

(5.) A. ſeized of an Advowſon in Fee, Grants Praeſentationem to B: quandocunque & quomodocunque Eccleſia vacare contigerit, pro unica vice tantum; in the Grant there was further this Clauſe, viz. Inſuper voluit & conceſſit, That the Grant ſhould remain in force quouſque Clericus habilis & idoneus ſhall by his Preſentation be Admitted, Inſtituted, and Inducted. Afterwards A. grants away the Advowſon in Fee unto S. The Church becomes void. S. Preſents. The Church becomes void again. S. Preſents G. upon a Diſturbance of M. the Preſentee of B. the Firſt Grantee, a Quare Impedit is brought. The Queſtion was, Whether B. the Firſt Grantee, not Preſenting upon the Firſt Avoidance, had loſt the benefit of his Grant? In this Caſe it was Adjudged by the whole Court, That although A. the Grantor grants Donationem & Praeſenta…ionem, p. 256quandocunque Eccleſia vacare contigerit, pro unica vice tantum; yet B. ought to have taken the firſt Preſentation that happened, and hath not Election to take any turn other than the Firſt, when the Church firſt became void; and by his neglect in not Preſenting then, had loſt the benefit of his Grant; and the ſubſequent words in the Grant are but only an Explanation of the words precedent, and relate to the next AvoidanceqqTr. 8 Jac. B. R. Starkey and Pole's Caſe. Bulſtr. 1. par. 26, 27. Hughes Abr. ver. Advowſon, Sect. 6. §. 13..

(6.) The Right of Preſentation is a Temporal thing, and a Temporal Inheritance, and therefore belongeth to the Kings Temporal Laws to determine, as alſo to make Laws who ſhall Preſent after Six months as well as before, ſo as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary. The Law is the ſame touching Avoidances, for it ſhall be judged by the Kings Temporal Laws, when and whether the Church may be ſaid to be void or not; the cognizance whereof doth not belong to the Kings Eccleſiaſtical Laws; and therefore where a Parſon is made a Biſhop, or accepts another Benefice without Licenſe, or Reſigneth, or be Deprived: In theſe caſes the Common Law would hold the Church void, albeit there were any Eccleſiaſtical Law to the contrary rrDr. & Stu. cap 36.: And it is ſufficient for the Ordinary's diſcharge, if the Preſentee be able, by whomſoever he be Preſented; which Authority is acknowledged on all ſides to have been ever inherent in the Eccleſiaſtical Juriſdiction: But as to the Right of Preſentation it ſelf, to determine who ought to Preſent, and who not, and at what time, and when the Church ſhall be Judged to become void, and when not, all theſe appertain to the Kings Temporal Laws. And in caſe it happen that the King Preſent not, where of Right he may, in ſuch caſe the Ordinary may pro tempore depute a fit perſon to ſerve the Cure; as in like caſe he may, where there is a default or neglect in other Patrons to Preſent, and do notssDr. & Stu. ibid..

(7.) If the Patrons be Joynt-tenants, or Tenants in Common of the Patronage, and they vary or differ in their Preſentations, the Ordinary is not in that Caſe bound to Admir either of their Clerks, nor him that is Preſented by the Major part: And if the Six months expire ere they agree, the Ordinary may Preſent by the Lapſe; but within the Six months he may not; for if ſo, and the Patrons accord, they may bring a Quare Impedit againſt him as a Diſturber, and remove his Clerk. But in caſe the Patrons have the Patronage by Deſcent as Coparceners, then is the Ordinary obliged to Admit the Clerk of the Eldeſt Siſter, who hath the precedency by Law in the Preſentation, if ſhe ſo pleaſe, after which and at the next Avoidance the next Siſter ſhall Preſent, and ſo in order by turn one Siſter after another till all the Siſters or their Heirs have Preſented, and then the Eldeſt Siſter ſhall Preſent again, and this is called a Preſenting p. 257by Turn, which holdeth alwaies between Coparceners of an Advowſon, unleſs they agree to Preſent together, or in ſome other manner by way of Compoſition, which if ſo, then the Agreement ought to hold good. Yet here note, That if after the death of the Common Anceſtor, the Church happening to be void, the eldeſt Siſter together with another of the Siſters, Preſents, and the other Siſters ſeverally and each in her own Name, or joyntly and altogether; In this caſe the Ordinary is not obliged to receive any of their Clerks, but may ſuffer the Church to run into the Lapſe; for there is no obligation on the Ordinary to admit the Clerk of the Eldeſt Siſter, but where ſhe Preſents in her own Name only. And in ſuch caſe of variance or difference among the Patrons touching the Preſentation, the Church is not properly ſaid Litigious, obliging the Ordinary at his peril to direct a Writ to enquire de jure Patronatus, which Writ lieth only where Two or more Preſent under pretence of ſeveral Titles, but in this caſe all the Patrons preſent under one and the ſame Title; for which reaſon the Ordinary may, if he pleaſe, ſuffer it to paſs into the LapſettDr. & Stu. cap. 30..

(8.) Suppoſe a Patron preſents to a Church void, and before the Admiſſion of the Clerk the Patron dies; after his Executors (before ſuch Admiſſion) Preſent another Clerk. Q. Whether the Archdeacon ought to receive the Clerk of the Teſtator, or of the Executors? The Opinion of the whole Court: was, That the Biſhop ſhould have Election thereinuuTrin. 13 Eliz. C. B. Smalwood verſ. Biſhop of Lichfield. Leon. Rep.. And in caſe an Agreement be made by way of Compoſition between divers claiming one Advowſon, and Enrolled, or by Fine, that one ſhall ſucceſſively after another Preſent in ſuch an order certain; and after one hath Preſented, he to whom at the next Avoidance the Second Preſentation doth belong, is diſturbed by any that was party to the ſaid Fine, or by ſome other in his ſtead: In ſuch caſe it is provided, That ſuch ſo diſturbed ſhall not be put to the Quare Impedit, but their reſort to the Roll or Fine ſhall be ſufficient, where if the Concord or Agreement be found, the Sheriff ſhall be commanded, That he give knowledge to the Diſturber, that he ſhew by ſuch a time certain (as fifteen days, or three weeks) if he can alledge any thing, wherefore the party that is diſturbed, ought not to Preſent; and if he appear not, or appearing alledge nothing ſufficient in Bar, he ſhall recover his Preſentation with Dammages xxStat. 13 Ed. 1. cap. 5..

p. 258(9.) In the Caſe of Evans and Aſcough it was the Opinion of Doderidge, That a Biſhop hath no more in a Church by Election, than a Parſon hath by Preſentation. And that if a man Preſent to a Church, yet any time before Inſtitution he may revoke it, and Preſent another; and if in that caſe the Biſhop will Inſtitute the Firſt, a Quare Impedit will lie againſt himyyCaſe Evans and Aſcough. Latch. Rep.. But if the Patron preſent one, and he be Admitted by the Ordinary, he cannot in that caſe vary from his Preſentation: as was alſo held by Doderidge in Stoke's Caſe againſt Styles ZZStoke verſ. Styles. Latch. Rep. fo. 253.; where he further ſaid, That it was out of all queſtion at the Common Law, that before Admiſſion by the Ordinary the Lay-Patron may revoke his Preſentation; becauſe a Preſentation is no other than a Commendation, which may be by word only: And if the Caſe be, that one hath the Nomination, another the Preſentation, the Preſentation and Nomination are all one. It was then ſaid by Whitlock, That in the Canon Law it is allowed to a Lay-man to vary, but not to a Spiritual man; but at the Common Law it is all one. Doderidge and Jones ſeemed to give the Reaſon thereof, when they ſaid, That it may be intended, that a Lay-man cannot at firſt ſo well judge, or is able to diſcern of the ſufficiency of the party Preſented, but a Spiritual-man may. Quaere; If after Admiſſion of the Patrons Preſentee he doth afterwards again Preſent another to the Ordinary, and the Ordinary Admit, Inſtitute, and Induct the laſt Preſentee, what Remedy for the firſt? So if a Spiritual Perſon change his Preſentation by the conſent of the Ordinary, what remedy for the Firſt after Induction of the SecondaaCaſe. ibid.?

(10.) To the ſame purpoſe with the premiſſes is that which is Reported in Stoke's Caſe againſt Sykes; the Caſe is this, viz. A Lay-Patron, having the next Avoidance of a Church after the death of one Stokes, See this Caſe in Noy's Rep.Father of the Plaintiff, then Incumbent of the ſaid Church, after the Fathers death preſented Stokes's Son, whom the Biſhop refuſed, for that by the Canon Law Filius Patri non poteſt in Eccleſia ſuccedere. Whereupon the Patron preſented Sykes; And now Stokes obtains a Diſpenſation Non obſtante the Canon. Notwithſtanding the Ordinary doth Inſtitute Sykes, and cauſeth him to be Inducted. Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates; and now Banks prays a Prohibition, and by all the Juſtices it was granted. And Jones ſaid, That he had known it to be Thrice ſo granted in the like Caſe, (viz.) in the time of Juſtice Gawdy, as alſo in the time of Juſtice Coke in the Common Pleas, where both Parſons claimed by one Patron: But Doderidge there held, That the Canon before-mentioned doth not hold in this Church; and ſo ſaid Doderidge was the Opinion of a Learned Civilian: So by the Canon Law a man cannot have that Woman in p. 259Marriage, whom he had in Avowry before; yet that Canon doth not hold in our Church. Doderidge ſaid, that the Civilians hold, That a Lay-Patron cannot revoke his Preſentation, but he may cumulando variare, and ſo the Ordinary hath Election to Inſtitute which of them he will; but that a Spiritual Patron cannot vary at all. But he ſaid, that at the Common Law it is out of queſtion, That a Patron before Inſtitution may revoke his Preſentation: And if the Patron preſent one, and the Ordinary admit him, but will not give him Inſtitution, Duplex Quaerela lies againſt the Ordinary, to enforce him to do his duty: But if both Parſons claim by one Patron, and the one ſues a Duplex Quaerela, a Prohibition lies not before Inſtitution. But Jones denied it, and ſaid, That it had been Reſolved to the contrary. Doderidge ſaid, That in that caſe the Induction was pendente Lite bbStokes verſ. Sykes. Latch. Rep.And in Calvert's Caſe againſt Kitchin it was ſaid, that they King may revoke his Preſentation, and by the ſame reaſon may Preſent another, before his Preſentee is Inſtituted; for proof whereof it was ſaid, That a Common perſon may recall his Preſentation before the Inſtitution, &c. for which was vouched the Book of 31 E. 1. tit. Quare Impedit, 185. the Abbot of Leiceſters Caſe, although that Dyer citing it, 12 Eliz. fo. 292. conceives the Book contrary; but it ſeems to be in reaſon that the Law is clear, That a Lay-Patron may change, although that a Spiritual Patron cannot, and the reaſon is (as aforeſaid) becauſe a Lay-perſon did not know his Sufficiency perhaps at the firſt; but a Spiritual perſon by intendment may inform himſelf thereof well enough, and therefore was vouched 18 H. 7. and 1 H. 8. Kellway's Reports, which plainly proves that diverſity: And by the 19 Eliz. fo. 360. in Coleſhil's Caſe it is ſaid, That when the King hath Preſented, a Repeal by him ought not to be admitted after Inſtitution: And by Dyer 339. in Yatton's Caſe, the King may Repeal his Preſentation by a new Preſentation, without mention made of the former, except that the Second Preſentation be obtained by Fraud. Alſo the King may Preſent by Paroll, as was ſaid by Sir Ed. Coke in the Lord Windſors Caſe, and as appears by 17 Eliz. Dyer, as was vouched by Bromley Baron in the foreſaid Caſe of Calvert againſt Kitchin; where it was ſaid by Altham Baron, That by the Kings death his Preſentation determines (underſtand it, before Inſtitution;) and ſo it is ſaid in 34 E. 3. 8. tit. Quare Impedit, 11. That a Preſentment made by a Biſhop becomes null and void by his death. And in 38 Ed. 3. 3. if a Biſhop Preſent and die before, &c. the King ſhall Preſent anewccKitchin verſ. Calvert. Lanes Rep..

(11.) Nomination, is a power, that by virtue of a Mannor or otherwiſe a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice, by him to be Preſented to the Ordinary for the ſame; p. 260where Note, (1) That it may be in right of a Mannor, or otherwiſe. (2) That the Clerk Nominated ought to be a perſon fit, able, and worthy. (3) That it may be to a Parſonage, Vicarage, or other Spiritual promotion. (4) That it ought to be to another than the Ordinary, which other ſhall preſent him to the Ordinary ddTerms of Law verb. Nomination.. And if one hath a Right to have the Nomination of a Clerk to a Benefice, and another Diſturbs him, he cannot have a Quare Impedit ipſum Nominare ad Eccleſiam; but the Writ ſhall be Quod permittat ipſum Praeſentare: And the Count ſhall be, That of Right he ought to Name a Clerk to ſuch as one who ought to Preſent him to the Biſhop, and that a Stranger doth diſturb him of his Nomination; and in caſe he doth Recover, the Judgment ſhall be Quod Epiſcopus admittat Clericum ad Nominationem ſuam ee21 H. 6. 17. by Fulthorp..

(12.) If A. B. doth Grant unto J. S. That he ſhall Name a Clerk to him to the Church of C. when it ſhall become void, and that A. B. ſhall preſent unto the Biſhop the Clerk which J. S. ſhall Nominate to him; in that caſe the Preſentation is in J. S. and he ſhall have a Quare Impedit, for all the Profit is in him: and the Grant of the Nomination and Preſentation is all one. But if A. B. doth Grant unto J. S. That he ſhall Nominate to him Two Clerks, whereof A. B. ſhall Preſent one; in that caſe the Preſentation is not given to J. S. the Grantee, becauſe it is in the Election of A. B. which of the Two ſhall have the Benefice: And this was the Opinion of the Juſtices in Smith and Clayton's Caſeff14 Ed. 4. 2. Smith and Clayton's Caſe..

(13.) If A. hath the Nomination to an Advowſon, and B. the Preſentation, if A. Nominates C. for his Clerk, and B. that ſhould preſent C. doth preſent D. for the Clerk; A. that hath the Nomination, ſhall have a Quare Impedit, and the Writ ſhall be Quod permittat eum Praeſentare, albeit A. had but the Nomination: otherwiſe he ſhould be without remedy; for in ſuch caſes where the party can otherwiſe have no Right done him, the Law will admit ſuch Writ, albeit the words therein be improperggFitz. N. B. 33. b.. And if he who had but a Nomination, corruptly agree to make a Preſentation, or Nomination, this Nomination ſhall be forfeited to the King, within the Statute of 31 Eliz. cap. 6. as was ſaid in Calvert's Caſe againſt Kitchin and Parkinſon hhDict. Caſ. Lane Rep.; and as it is ſaid in Plowden, in Hare, and Bickley's Caſe, He who hath the Nomination, hath the effect of the Advowſon. Yet (as in the ſaid Caſe of Calvert) this diverſity ſeems to be good, That if A. hath the Preſentation, and B. the Nomination to a Benefice, and the Preſentor upon a Corrupt agreement, make a Preſentation unknown to the Nominator, here the Nominator ſhall not be prejudiced within the Statute of 31 Eliz. cap. 6. iiTrin. 7 Jac. in the Exchequer. Calv. againſt Kitchin and Parkinſon. Lane's Rep..

p. 261(14.) In Green's Caſe vouched by Atthowe Serjeant in the Caſe of the King againſt the Archbiſhop of Canterbury and one Thomas Pruſt, upon a Quare Impedit brought by the King, it is ſaid, That if the Biſhop Collate before the Six months incurr, the Collatee is Incumbent, but the Patron may Preſent at any time aſter, for that fills the Church, but not againſt the Patron, and hinders that no Lapſe may incurr to another. In Sir Hen. Gawdy's Caſe for the Church of W. the Church there became void, and within fourteen daies after the King Preſented one to it jure Prerogativae; the Preſentee continues poſſeſſion above thirty years, and then the Mannor and the Advowſon came to Sir Henry Gawdy; the Church is void, and the King Preſents again, and was diſturbed by Sir Henry. For that the King brought a Quare Impedit: and Adjudged, That the Preſentation of the King within the Six months was not an Uſurpation: But if he had Preſented in his own right, there ſhould have been an Uſurpation. When a Title by Lapſe is in the King, if any Preſent, the King may remove him during his life by Quare Impedit. All this appears by Baskervil's Caſe; but if the Incumbent die, the term of the King is gone; and if he Reſign not, the King may Preſent during the life of the Incumbent: And that was a grand inconveniency, that after ſo long poſſeſſion in that manner, the Incumbent may be removed by the King, &c. Vid. the Caſe of the King againſt the Archbiſhop of Canterbury and Thomas Pruſt, Clerk. Trin. 4 Car. Hetley's Reports.

(15.) If an Incumbent Reſign, and the Uſurper Preſent within Six months, and is in for Six months, no Notice being given to the Patron of the Reſignation; yet that ſhall bind him, and he ſhall be put to his Right of Advowſon. Otherwiſe if the Ordinary had Collated; becauſe the Induction is notorious to the Country, and the Patron ought to take notice of it at his peril, to prevent the Uſurpation of an EſtrangerkkServien agaieſt the Biſhop of Lincoln. Noy's Rep..

(16.) There was a Queſtion upon a Demurrer in Law, If a Lapſe devolves to the Ordinary, and within thoſe Six months the Ordinary is Tranſlated to another Biſhoprick; Whether the King or his Metropolitan ſhall Preſent to that Lapſe, in default that the Patron does not Preſent? Noy Attorney, That the Guardian of the Spiritualties ſhall Preſent whoſoever he be. Vid. Dyer 78. Pl. 103.llIn Robbino Caſe. Noy's Rep..

(17.) In a Quare Impedit, It was Reſolved and Agreed by all upon Evidence at Bar, That a Reſignation to a Proctor, does not make the Church void, until it be Accepted by the Biſhop, and acknowledged before him. So that a Preſentation in the mean time was voidmmSmith agaieſt …avis Noy's Rep..

p. 262(18.) A Parochial Church may be a Donative, and exempt from the Ordinaries Juriſdiction, and the Incumbent may reſign to the Patron, and not to the Ordinary; nor may the Ordinary Viſit, but the Patron by Commiſſioners to be appointed by him. Co. Lit. 144. Cite Hill. 1 Jac. B. R. Rot. 601. between Fairchild and Gaier in Treſpaſs for the Parochial Rectory Donative of St. Burien in Cornwall; ſo Reſolved in that CaſennHill. 1 Jac. B. R. rot. 601. Fairchild and Gaier.. But in ſuch caſe of a Parochial Donative, a meer Lay-man is not capable thereof, but a Clerk in Holy Orders is; for although he comes in by way of a Lay-donation, and not by Admiſſion and Inſtitution, yet his Function is Spiritual. As was Reſolved in the ſaid Caſe of St. Burien ooCo. Lit. 601.. So that a Donative may paſs by the Gift of a Lay-Patron, without Inſtitution or InductionppDa. 1. 46. b. & Roll. Abr. verb. Preſent. lit. B..

(19.) In a Quare Impedit the Caſe was this; A. ſeized of Two parts of an Advowſon, and B. of the Third part: A. preſented one who died, afterwards he preſented again C, who is deprived 1 Mar. becauſe he is a Favourer of the Religion of E. 6. B. preſented D. who after is deprived, and C. reſtored. The Church void by the death of C. B. preſents, and A. brings a Quare Impedit. It was Adjudged that it did not lie: And it was Agreed, That if Two have Title to preſent by turns, and one preſents one who is Admitted and Inſtituted, and afterwards deprived for Crime; yet he ſhall not preſent again; but it ſhall ſerve for his Turn, becauſe the Church was full, till a Sentence of Deprivation came: But when the Admiſſion and Inſtitution are meerly void, the ſame ſhall not ſerve for a Turn: But in this caſe, although the Clerk of B. was Incumbent for a time to all purpoſes, yet when the ſecond Sentence came, C. was Incumbent again by force of the firſt Preſentment, and then when he was dead, B. ought to preſent at his Turn qqTrin. 41 Eliz. B. R. Windſor and the Archb. of Cinterb. Caſe. Cro. par. 1.. In another Quare Impedit the Caſe was this, viz. The Biſhop of Lincoln, Patron and Ordinary Collated to a Benefice in 8 Eliz. The Incumbent took another Benefice without Qualification, by which the firſt was void: The Succeſſor Biſhop 18 Eliz. preſented one E. but non conſtat, whether by Avoidance, Death, or Reſignation: E. being in, the Biſhop was tranſlated or removed to Wincheſter: the Biſhop that then was, certified that E. did not pay his Tenths, upon which the Church was void, and the Biſhop Collated J. S. to the Church. The Queſtion was, Whether the Queen might now avoid the Incumbent, to have her Preſentment, which accrued to her upon the avoidance of the firſt Incumbent, who took a ſecond Benefice without Qualification. The Juſtices at the firſt doubted it, but afterwards it was Adjudged for the Queen againſt the Biſhop. Paſch. 30 Eliz. The Queen and the Biſhop of Lincolns Caſe. More' s Rep.

p. 263(20.) It is out of the Canon Law, one of Cardinal Otho's Canons, That Ne ſuccedat in Eccleſia Filius Patri, the Son may not ſucceed the Father in the ſame Church; or in caſe ſuch happen to be ſo Inſtituted or Admitted, they are forthwith to be deprived thereof by the ſaid Conſtitution. Conſt. Othon. Ne ſuccedat in Eccleſia Filius Patri. This is indeed according to the Canon Law, though with us not practicable; by the ſame Law alſo the Son is prohibited to ſucceed the Father immediately in the ſame Prebendy, albeit to have another he is not prohibited; but if it be where the number of Prebends be not definite and certain, there he is not at all by that Law prohibited, Extr. de ſi. Praeſ. c. dilectus; yea, by that Law the Son may not be a Vicar in that Church, where the Father was Rector laſt, Extr. ib. ad Extirpandas, &c. Michael. But this might be omitted; for the Queſtion, An Filius poſſit Beneficiari in Eccleſia Paterna? is with us grown too obſolete to admit a Negative Solution.

(21.) A Preſentation may be to a Deanary rr17 E. 3. 40. Adjudg'd., to an Hoſpital ss21 E. 3. 6. b., and to a Chappel tt14 H. 3. Quare I. ped. 183. Adjudg.. And if a Stranger Preſent to a Donative, and his Clerk be thereupon Inſtituted and Inducted, yet it is meerly voiduuCo. Litt. 344.; for which reaſon ſuch Inſtitution and Induction upon ſuch a Preſentation ſhall not make that Preſentative, which before was Donative. But if he that is the true Patron of a Parochial Rectory Donative, ſhall Preſent to the ſame, and his Clerk be thereupon Admitted and Inſtituted, that now makes it to become Preſentative, and it ſhall never afterwards become Donative xxCo. Litt. ibid..

(22.) If a Church become void, to which a Biſhop hath right to Preſent in reſpect of his Temporalties, in this caſe, if the Biſhop happen to die before he hath preſented to that Church void, the King ſhall have the Preſentation, and not the Biſhops Executorsyy50 E. 3. 26. 9 H. 6. 16. b. admit. 24 E. 3. 26. b. Curia.. Alſo if during the vacancy of the Archbiſhoprick of York, and the Temporalties being in the Kings hands, the Deanary becomes void, the King ſhall Preſent to that Deanary, albeit there be a Compoſition between the Archbiſhop and the Chapter, that the Chapter ſhall chuſe him; for de jure the Patronage thereof belongs to the Archbiſhop, yet the Compoſition cannot bind the King, who comes in paramount as Supream Patronzz17 E. 3. 40. Adjudg..

(23.) Although it be admitted, that where a Common perſon Incumbent is Created a Biſhop, there the King ſhall have the Preſentation of the Church for that turn by his Prerogative; yet it ſeems, if the King grant to an Incumbent, before he is Created Biſhop, a Diſpenſation retinere the Church with his Biſhoprick, and afterwards is Created Biſhop and dies Incumbent; it ſeems the King ſhall not Preſent to the Church by his Prerogative, for that the Church is not void by his being made a Biſhop, in which caſe p. 264the Prerogative gives the Preſentation to the King, but by the death of the Incumbent, in which caſe the Prerogative doth not take place. Co. Ent. 474. Hele's Caſe; there pleaded, that in ſuch caſe the Church is void by death, and admitted, that it belongs to the Patron to preſent upon his deathaaRol. Abr. ver. Preſe…um. D. m. 2..

(24.) If a Church, whereof a Biſhop in right of his Biſhoprick is the Patron, becomes void after the death of the Biſhop and before the Seizure of the Temporalties, yet the King ſhall have the Preſentation bb12 E. 3. Quare Imp. 56. per Schard.. And if a Church belonging to the Patronage of a Biſhop become void, and the Biſhop Preſent and die before Inſtitution, the King ſhall have that Preſentation by his PrerogativeccLiber Parliamentorum, 21 E 1. the Prior of Bermu…dſey's caſe adjudg'd in Parl. 24 E. 3. 30. adjudg'd. Rol. ubi ſupr. lit. E. nu. 5.. So if a Biſhop die after Inſtitution of the Clerk, and before Induction, the King ſhall have the Preſentation by his Prerogativedd11 …. 4. 9. ly…all the Juſtices. …. N. B. 34. K. 36. K. 38 E. 3, 4. Hob. Rep. 208.. Alſo if Lapſe incurr to the Ordinary, and before the Six months paſs the Ordinary is Tranſlated or dies, it ſeems the King ſhall have the Preſentation, and not the Ordinary, or his Executors, or the Guardian of the Spiritualties. P. 40 El. B. Dubitatur, Hob. Rep. 208. in caſe of death. But if a Biſhop having right to preſent to a Prebend, and preſent his Clerk, who is Inſtituted and Inducted in the Morning, and Afternoon the ſame day the Biſhop dies, whereby the Temporalties come into the Kings hands, yet the King in that caſe may not have the Preſentation ee43 E. 3. 3..

(25.) The Patronage of the Deanary of an Archbiſhoprick doth of Common right belong to the Archbiſhop, and he ſhall Preſent to the Avoidanceff17 E. 3. 40. b.. But by Compoſition it may be Elective by the Chapter, and yet the Patronage remain in the ArchbiſhopggIbid.. And where a Parſon ought to preſent to a Vicarage, if the Vicarage become void during the vacancy of the Parſonage, the Patron of the Parſonage ſhall preſenthh19 E. 2. Qua. Imp. 178..

(26.) An Alien, who is a Miniſter, may be preſented to a Church, and Anciently it was uſual for Aliens to have Spiritual promotions here, and Priors Aliens had great poſſeſſions in England, and were Parſons AppropriateiiRol. Abr. ver. Preſentm. lit. L. 4.; yet by the Statutes of 13 R. 2. & 1 H. 5. French-men are diſabled from having Benefices in England, and French-men Denizon'd: Sed Qu. whether they continue of force at this daykkRol. ibid.. And if a meer Lay-man, or a man altogether illiterate, be preſented, Inſtituted, and Inducted, it is not in Conſtruction of the Common Law a meer Nullity, but ſuch are Parſons de facto; but if a Woman be Preſented, Inſtituted and Inducted, it is a meer Nullity at that Law, becauſe her Incapacity is apparent llIbid. & Hob. 209..

(27.) If a man preſent his Clerk to the Biſhop, and he die before he is received, he may preſent another; and although a man hath preſented his Clerk to the Biſhop, yet he may preſent another p. 265at any time before the Biſhop ſhall have received ſuch his Clerkmm38 E. 3. 36 b. Rol. Abr. ubi ſupr. lit. O..

(28.) If J. S. Preſent, and his Clerk be Admitted and Inſtituted; before Induction J. D. cannot Preſent his Clerk, for the Church was Full before as to a Common perſon, for by the Inſtitution he had Curam animarum: But where a Common perſon Preſents, and his Clerk be Admitted and Inſtituted, yet before Induction the King (if he hath Right) may Preſent, and his Clerk ſhall be Inſtituted; for the Church is not Full as againſt the King before InductionnnVid. Rol. ibid. lit. Q.. But if the King hath not right to the Church, in that caſe the Church is Full by the Admiſſion and Inſtitution of a Common perſon's Clerk without Induction, as againſt the King, ſo as that he may not in that caſe PreſentooIbid. nu. 3..

(29.) If a Biſhop Collate without any good Title of Lapſe or otherwiſe, and then the Patron die after the Six months claps'd, and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Biſhop and Incumbent plead Plenarty by Six months, it was Adjudged no Plea on Demurrer, for that the Collation is not any Plenarty, being Tortious ppP. 32 El. B. R. Rot. 2065. inter Executors of Smalwood and the Biſh. of Coventry and Lichfield.. Alſo if a Biſhop Collate without a good Title of Lapſe, it puts not the Patron out of poſſeſſion; but he may Preſent afterwards, albeit the Biſhop's Clerk were Inſtituted and InductedqqCo. 6. Green 29. b. & Boſwell 50. Co. Lit. 344..

(30.) A Common perſon may Preſent to a Church per Parol; and if it be by Writing, yet it is not any Deed, but only in nature of a Letter to the BiſhoprrCo. Lit. 120.. Alſo the King may Preſent either by his Lettersss2 E. 1. Rot. Patentium membran. 5., or per Parol without Writingtt19 E. 3. Quare Imp. 60. Agree. Co. Lit. 120.. But if the King be deceived in his Title, it will be a void Preſentation uuCo. 6. Green 29. b. Dubitatur. D. 16 El. 327. 6. Co. 6. Green 29. b. adjudg.. And if the King grant a Preſentation by his Letters by the words [damus Concedimus] without other words of Preſentation, yet it ſeems it ſhall amount to a Preſentation, and be a ſufficient Warrant for the Biſhop to Inſtitute him. Dubitatur 19 E. 3. Quare Impedit, 60. A Common perſon by his Letter or his Word may make a Preſentation to a Benefice to the Biſhop; the King may Preſent by Word, if the Ordinary be preſent; if the King under any Seal preſent, it is good: And Mich. 10 Jac. it was held by the whole Court, that a Preſentment under the Great Seal, to a Church parcel of the Dutchy of Lancaſter is good, and needed not to be under the Dutchy-SealxxDom. Rex verſ Emerſo. Tri…. 8 Jac. rot. 1811 Brown…. Rep. par 1. Act on Qu Imp.. Where a man accepts a Second Benefice with Cure, without a Diſpenſation or Qualification, the Firſt Benefice is void, and the Patron may Preſent; but if he doth not Preſent, then if it is under value, no Lapſe ſhall incurr until there is a Deprivation and Notice: But if it be above value, then the Patron muſt Preſent within Six months.yyHill. 22 & 23 Car. 2. C. B. Rot. 680. Shute verſ. Higden. Vaugh. Rep. and Arguments..

p. 266The King ſeized of an Advowſon in the Right of his Dutchy of Lancaſter, Preſented to it under the Great Seal, and not under the Seal of the Dutchy. And Reſolved, That the Preſentation was good, for the Preſentation is but a Fruit fallen from the Tree, and the King may Preſent by word, becauſe a Preſentation is but a Commendation of the Clerk to the OrdinaryaaThe King and Biſh. of Lincoln and King, Caſe. More's Rep..

A man ſeized of an Advowſon in Fee granted to another and his Heirs, that when the Church ſhould become void, that the Grantee and his Heirs ſhould Nominate a Clerk to the Grantor and his Heirs, and he and his Heirs ſhould Preſent him to the Ordinary. Reſolved, Mich. 5 Eliz. More's Rep.Mic 5That if he who hath the Nomination Preſent, he which ought to Preſent ſhall have a Quare Impedit againſt him, and è contra.

In Beverley and Cornwell's Caſe it was Reſolved, That if any Advowſon comes to the Queen for Forfeiture by Outlawry, and the Church becomes void,Paſch. 30 Eli. More's Rep. and the Queen Preſents, and then the Outlawry is reverſed for Error, yet the Queen ſhall enjoy the Preſentment, becauſe it came to the Queen as a profit of the Advowſon; but if the Church be void at the time of the Outlawry, and the Preſentment be forfeited as a Chattel principal and diſtinct, and then the Outlawry is reverſed, the party ſhall have Reſtitution of the Preſentment.

(31.) If the King dies before his Clerks Admiſſion and Inſtitution, it is a Revocation in Law of his Preſentation bbM. & H. 8 Jac. in Scac. inter Calvert & Kitchin, pe…r Cur.. Or if the King Preſent one to a Benefice, and then Preſent another to the ſame without Revoking the former, or making any mention thereof; yet this alſo is a Revocation in Law of that formerccIbid. & D. 12 El. 292. 70. 16 El. 327. 4., unleſs the Second were by fraud or ſurreptitiouſly obtain'd. Likewiſe, if the Kings Preſentee dies after Inſtitution, and before Induction, that alſo is a Revocation in Law, becauſe the King had not the effect of his Preſentation, and ſo ſhall Preſent againddDubitatur, D. 18 El. 348. 12. Co 9. Holt. 132. Said to be Reſolved in the ſaid Caſe of 18 El. D. 20 El. 360. 7. admit.. Or if the King Preſent, and then before Inſtitution revoke the ſame, but before Notice thereof to the Ordinary, the Ordinary Inſtitute and Induct him; yet it ſeems that Preſentation is well Revok'd in Law, and the Notice thereof to the Ordinary is not material as to the ſubſtance of the Revocation, but only to diſcharge him from being a Diſturber. D. 12. El. 292. adjudg'd. Dyer makes a Quaere thereof. Dubitatur D. 16 El. 328. Vid. 25 E. 3. 47. & Rol. Abr. ubi ſupr. lit. U.

(32.) If the Patron, who Preſents his Clerk, be Excommunicated, it is a good cauſe of Refuſal of the ſaid Clerkee15 H. 7. 7. b.; it is alſo ſaid to be ſo hold in the Books of the Common LawffCo. 5. Spe…ot. 58. Rol. ibid.. And where there are Three Joyntenants of the ſame Advowſon, or of the next Avoidance, and only one or two of them Preſent, the Biſhop is no Diſturber if he refuſe the Clerk ſo Preſented; for he is not bound to p. 267Admit the Clerk, unleſs all the Joyntenants joyn in the Preſentation ggD. 14 El. 3. 4. 54. Rol. ib. lit. Y.. But where there are Three Grantees of the next Avoidance, and the Church become void, and Two of them Preſent the Third being a Clerk, the Ordinary in that caſe is to Admit him, for that he cannot joyn in a Preſentation of himſelf, and he may relinquiſh his Title, and accept the Preſentment of the othershh2. D. 14 El. 304. 54. Rol. ibid..

(33.) A. the Defendant had been Parſon for Three years, and pleaded Plenarty generally by Six months of the Preſentation of one Styles, a Stranger to the Writ: and the Court held the Plea to be naught, becauſe the Defendant ſhewed no Title in Styles iiCronwel verſ. Liſter. Brownl. Rep. pa. 1. Actions on Qua. Imp..

(34.) In the Caſe between Phipps and Hayter Prohibition was granted for the Church of T. the Suit being in the Arcbes after Induction to avoid the Inſtitution, for that the Inſtitution was made after a Caveat entered, Not to grant Inſtitution, &c. for that doth not make the Inſtitution void at the Common LawkkMich. 15 Car. B. R. between Phipps and Hayter, per Cur. & Hutton's Caſe. Hob. Rep..

(35.) In a Quare Impedit; A. and B. ſeverally Patrons of the Moity of the Church of S. in Fee to Preſent by Turns; A. Preſents his Clerk, who is Admitted and Inducted. The Church is void again, B. Preſents his Clerk, who is likewiſe Inducted, and after is deprived. The Biſhop Collates without giving notice of the Deprivation. A. grants his Advowſon to J. S. in Fee; the Clerk Collated by the Biſhop died: B. Preſenteth, and is diſturbed. Reſolved, (1) When A. had right to Preſent upon the Deprivation, as in his Turn (although the Collation of the Biſhop was not good) yet it was but a thing in Action; and when he had granted the Advowſon over, the Grantee could not have this thing in Action, nor the Grantor could not have it, for he had deſtroyed it, and ſo none could have it. (2) Reſolved, although the Grant was ſufficient to paſs the Advowſon in Fee, yet the Collation of the Biſhop was good againſt all, but againſt the very Patron, ſo as he might have removed the Incumbent by a Quare Impedit; but when he doth not remove him, ſo as he dies Incumbent; this is as a ſerving of his Turn, and a good Plenarty and Incumbency againſt himllHill. 40 El. B. R. Leak and the Biſhop of Coventry's Caſe. Cro. par. 1..

(36.) In a Quare Impedit the Defendant pleaded, That the Divine Service there was in the Welſh Tongue, and the Pariſhioners underſtood not the Engliſh; and the Preſentee could not ſpeak Welſh, and therefore he refuſed him: It was the Opinion of all the Juſtices, That it was a good cauſe of Refuſal of him, for he cannot inſtruct his Flock according to his duty and charge.Albany and the Biſhop of St. Aſaph's Caſe. Cro. par. 1.. But in this Caſe it was held, That Notice ought to be given to the Patron himſelf, if he be within the County, if not, publick Intimation to be on the Church-door.

(37.) In a Quare Impedit brought in a Caſe between La. and Le. it was held, That the King cannot be a Diſturber; but the Biſhop p. 268may be a ſpecial Diſturber; and in that caſe it was ſaid, It is good policy upon every Preſentation by Uſurpation, to bring a Quare Impedit as ſpeedily as may be; and it is as good policy to name the Biſhop in the Writ,Mich. 3. Jac. B. R. Lancaſter and Low's Caſe. Cro. par. 2.Mic 3 for then he ſhall not Collate for Lapſe, if the Church remain void Six months; nor ſhall the Metropolitan Collate, if the time come to him, for the ſame Lapſe: For it was ſaid to be a Rule, That the Metropolitan ſhall never Collate for Lapſe, but when the immediate Ordinary might have Collated, and hath ſurceaſed his time: and in ſuch caſe the Ordinary cannot Collate, becauſe he is made party to the Writ.

(38.) In a Caſe between Benet and the Biſhop of Norwich it was Adjudged,Cro. par. 1. That if the next Avoidance of a Church be granted to A. and B. and A. Releaſe to B. and after the Church become void; in that caſe B. may Preſent, and upon Diſturbance have a Quare Impedit in his own Name.

(39.) If the Biſhop ſhall for Inſufficiency refuſe the Clerk that is Preſented to him,Paſch. 26 El. B. R. the Biſh. of Hereford's Caſe. Cro. par. 1. he may not afterwards Admit him: and therefore where the Patron Preſented J. S. his Clerk to the Biſhop, and upon Notice by the Biſhop given to the Patron of the Inſufficiency of the Clerk, the Patron Preſented another Clerk, and then the Biſhop Admits the firſt Clerk which was Preſented within Six months: In this caſe it was Adjudged, That the Biſhop was a Diſturber for having once refuſed him for Inſufficiency, he cannot afterwards accept of him.