Abridgment of Ecclesiastical Laws, Treatise · Chapter 44
CHAP. XLIV.
Of ſeveral Writs at the Common Law pertinent to this Subject.
1. What the Writ of Darrein Preſentment imports, in what caſe it lies, and how it differs from a Quare Impedit.
2. Aſſiſe de utrum, what, and why ſo called.
3. Quare Impedit, what for; and againſt whom it lies
4. What a Ne admittas imports, the uſe and end thereof.
5. In what caſe the Writ [Vi Laica removenda] lies.
6. What the Writ Indicavit imports, and the uſe thereof.
7. What the Writ Advocatione Decimarum ſignifies.
8. Admittendo Clerico, what; and in what Caſe iſſuable.
9. The Writ [Beneficio primo Eccleſiaſtico habendo] what.
10. That Writ [Cautione Admittenda,] and the effect thereof.
11. The writ of [Clerico infra Sacros ordines conſtituto, non eligendo in Officium,] What the uſe or end thereof,
12. The Writ [Clerico capto per Statutum Mercatorum] what.
13. What the Writ of [Clerico convicto commiſſo Goalae in defectu Ordinarii deliberando] was.
14. What the Writ of [Annua Penſione] was anciently.
15. The Writ of [Vicario deliberando occaſione cujuſdam Recognitionis] what.
16. Three Writs relating to Perſons excommunicated.
17. Aſſiſe of Darrein Preſentment brought after a Quare Impedit in the ſame cauſe, abates.
18. Difference of Pleas by an Incumbent, in reſpect of his being in by the Preſentment of a ſtranger, and in reſpect of his being in by the Preſentment of the Plaintiff himſelf.
19. Notwithſtanding a recovery upon a Quare Impedit, the Incumbent continues Incumbent de facto, until Preſentation by the Recoverer.
20. Of what thing a Q. Imp. lies, and who ſhall have it.
21. Who may have a Quare Impedit, and of what things.
22. How, and for whom the Writ of Right of Advowſon lies.
23. What the Writ de jure patronatus, and how the Law proceeds thereon.
24. The Writ of Spoliation, what, and where it lies.
25. The Writ Vi Laica removenda further explain'd.
26. The Writ Quod clerici non eligantur in Officium.
(1.) AGainſt the unlawful Poſſeſſor, who is the Uſurper, liveth Three Writs, viz. One of the Right, as the Writ of Right of Advowſon; and the other two, of the Poſſeſſion, viz. A Quare Impedit, and Darrein Preſentment. This Aſſize of Darrein Preſentment or Aſſiſa ultimae Praeſentationis, is a Writ, which lieth where a man or his Anceſtor hath preſented a Clerk to a Church, and after (the Church becoming void by his death or otherwiſe) a ſtranger preſents his Clerk to the ſame Church, in diſturbance of him who had laſt preſented. This Writ is otherwiſe alſo uſedaVid. Bract. l. 4. tract. 2. Reg. Orig. f. 30. & F. N. B. f. 193.; and differs from that of a Quare Impedit; for the Quare Impedit lies upon the diſturbance of one who hath the Advowſon in his Preſentation, when the Church is void: The other lies, where a man or his Anceſtors had preſented before, and now (the Church becoming void again) a ſtranger preſents in diſturbance of him who had laſt preſented. Where ever a man may have Aſſize of Darrein Preſentment, he may have a Quare Impedit, but not e contra bTerms of Law verb. Quare Imp.. He that hath right to preſent after the death of the Parſon, and bringeth no Quare Impedit nor Darrein Preſentment, but ſuffereth a ſtranger to uſurp upon him, yet he ſhall have a Writ of Right of Advowſon; but this Writ lieth not, unleſs he claim to have the Advowſon to him and his heirs in Fee Simple cibid.. Where the Ordinary, Metropolitan, or King preſents for Lapſe, any of theſe Collatives will ſerve the Patron for a poſſeſſion in his Aſſize of Darrein Preſentment d5 H. 7. 43. F. N. B. 31. F. Mich. 12. Jac. rot. 2642. Colt and Glover verſ. Biſhop of Coventry and Lichfield. Hob. Rep., which Aſſize of Darrein Preſentment may not be purchaſed, pending a Quare Impedit, for the ſame avoidance; and therefore in the Caſe, where William St. Andrewes brought a Writ of Aſſize of Darrein Preſentment againſt the Archbiſhop of York, Mary Counteſs of Shrewsbury, and one Hacker; aud the Biſhop making default, the Counteſs and Hacker pleaded in Abatement, that the Plaintiff before the Writ purchaſed, brought a Quare Impedit againſt the ſame Defendants, and ſhews all certain, which remains undetermined, and averrs that they are both of the ſame avoidance: And upon Demurrer the Writ was abated by JudgmenteMich. 15. Jac. rot. 32. C. B. William St. Andrewes verſ. Archbiſhop of York & alios. Hob. Rep..
(2.) Aſſize de utrum or Aſſiſa utrum, is a writ which lieth for a Parſon againſt a Layman, or for a Layman againſt a Parſon, for Land and Tenements doubtful, whether it be Lay-Fee or Free AlmesfVid. Bract. l 4. Tract. 5. r. 1. & ſeq. Britton. c. 95.. Theſe Writs are called Aſſizes, probably either becauſe they ſettle the poſſeſſion; and ſo an outward Right in him that obtains by them; or becauſe they were originally executed at a certain time and place formerly appointed; or becauſe they are tryed moſt commonly by eſpecial Courts ſet and appointed for that purpoſe. The Incumbent, as touching his Right for his Rectory; hath the onelyonly Writ of Juris utrum, and for his poſſeſſion any other poſſeſſory Action.
(3.) Quare Impedit is a Writ which lieth for him, who hath purchaſed an Advowſon in Groſs, or a Mannor with an Advowſon thereunto appendant, and againſt him, who (when a Parſon Incumbent dieth, or a Church otherwiſe becomes void) diſturbeth the other in the Right of his Advowſon, by preſenting a Clerk thereunto being void. Vhis Writ is diſtinguiſh'd from the former of Darrein Preſentment or Aſſiſa ultimae Praeſentationis, becauſe this latter lieth (as aforeſaid) onelyonly where a man or his Anceſtors formerly preſented, but the Quare Impedit lies properly for him, who himſelf was the Purchaſer of the Advowſon; though he that may have Aſſize of Darrein Preſentment, may have the other if he pleaſe, but not ſo Vice verſa, as was alſo before obſerved. Yet it is ſaid in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature, than an Aſſize of Darrein Preſentment, becauſe it ſuppoſeth both a Poſſeſſion and a RightgOld N. B. f. 27. Bract. l. 4. Tract. 2. c. 6. Brit. c. 92. F. N. B. f. 32. Reg. Orig. f. 30. & Weſtm. 8. c. 5.. Which Quare Impedit the Executors of a Teſtator may (as well as himſelf might) have upon a diſturbance made to the Preſentment; and ſo was the Opinion of the whole Court in Smallwoods Caſe awainſt the Biſhop of Coventry and Lichfield, that the Executors may have a Quare Impedit upon a diſturbance made to the PreſentationhTrin. 31. El. C. B. Smalwood, Caſe. Leon. Rep., which Writ lieth alſo of a Chappel, Prebend, &c.iSt. W. 2. & in dict. C.. And in caſe after the death of the Anceſtor of him that preſented his Clerk unto a Church, the ſame Advowſon be be aſſigned in Dower to any Woman, or to Tenant by the Courteſie, which do preſent, and after the death of ſuch Tenants, the very Heir is diſturbed to preſent when the Church is void, it is in his election whether he will ſue the Writ of Quare Impedit or of Darrein Preſentmet; the which, it ſeems, is alſo to be obſerved in Advowſons Demiſed for term of life, or years, or in Fee TailkSt. 13. Ed. 1. c. 5. & Fitz. Dar. Preſ.. And Dammages ſhall be awared in both theſe Writs, that is, if the time of Six Months paſs by the diſturbance of any ſo that the Biſhop doth thereby Collate to the Church, and the very Patron loſe his Preſentation for that turn, Dammages ſhall be awarded for two years value of the Church: And if the Six Months be not elapſed, but the Preſentment bederaigned within that time, then Dammages ſhall be awarded to the half years value of the Church: And if the diſturber hath not wherewith to ſatisfie the Damages, where the Biſhop Collateth by lapſe of time, he ſhall ſuffer two years Impiſonment; and half years impriſonment, where the Advowſon is deraigned within the half yearlStat. ib. Fitz. Dammage. 49. 17. 29 38. 93. 106. Fitz. Q. Imp. 34. 45. Dy. f. 135. 236. 241. kel. f. 57. Fitz. En. 43. Co. l. 6. f. 48. l. 9. f. 26. In Broke-byes Caſe 31 El. it was reſolved, that an Executor ſhall have a Q. Imp for a diſturbance made in vita Teſtatris, if the Avoidance be a chattel reſted.. Likewiſe, he that recovers a Mannor, whereunto an Advowſon is appentlant, being diſturbed to preſent when the Church is void, ſhall have a Quare Impedit mSt. 7 H. 8. 4.. In which, as alſo in Aſſiſe of Darrein Preſentment, plenarty of the Defendants or Diſturbers party is no pleanSr. 13. Ed. l. c. 5.; but two Quare Impedits of one Church, and for one avoidance a man cannot haveoPaſch. 15. Jac. E. of Bedford verſ. the Biſhop of Exiter.. In the Caſe between the King and the Biſhop of Norwich and Saker and Cole it was reſolved, that when one is admitted, inſtituted and inducted, by the preſentation of a common perſon, though it was upon an uſurpation upon the King, yet the King cannot remove the Incumbent without a Q. Impedit brought, for the Church is full of him till he be removed—Cro. par. 2.
(4.) Ne admittas, is a Writ that lieth for the Plaintiff in a Quare Impedit, or him that hath an Action of Darrein Preſentment, depending in the Common Pleas, and feareth that the Biſhop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them. This Writ muſt be ſued within ſix months next after the Avoidance, becauſe after the ſix months the Biſhop may preſent by the lapſe. Therefore if the Patron of a Church vacant, having or not having any Controverſie depending with another touching the right of Preſentation, doubteth that before he makes his Preſentation, the Biſhop may collate a Clerk of his own, or admit a Clerk preſented by another to the ſame Benefice unto which he hath ſuch right of preſentation, he may at his own Suit have this Writ of Ne admittas directed to the Biſhop forbidding him to collate or admit any to that Church during the time aforeſaidpReg. Orig. fo. 31. F. N. B. fo. 37..
(5.) Vi Laica Removenda, is a Writ which (upon the Biſhops Certificate into Chancery of a force and reſiſtance touching a Church) lieth where a Debate or Controverſie is between two Parſons for a Church, the one whereof doth enter into the Church with a ſtrong hand and great power of the Laity, holding the other out, and keeping poſſeſſion thereof vi & armis; whereupon he that is ſo held out of poſſeſſion may have the ſaid Writ directed to the Sheriff of the County, to remove the force within that Church, and (if need be) to raiſe the Poſſe Comitatus to his aſſiſtance, and to Arreſt and Impriſon the perſons that make reſiſtance, ſo as to have their Bodies before the King at a certain day to anſwer the contempt: which Writ is ever made returnable, and is ſometimes grantable without the Biſhops Certificate, as aforeſaid, for it may, it ſeems, be had upon a ſurmiſe made thereof by the Incumbent himſelf without ſuch Certificate; there being a diſtinct and ſeveral form thereof in each of the ſaid CaſesqF. N. B. fo. 54. Reg. Orig. fo. 59, 60.. So that this Writ properly lieth for the removal of any forcible poſſeſſion of a Church kept by Laymen.
6. Indicavit is a Writ in the nature of a Prohibition, iſſuing out of the Kings Temporal to his Eccleſiaſtical Courts, and lieth for the Patron of a Church, whoſe Clerk is Defendant in ſome Spiritual Court in an Action of Tithes commenced againſt him by another Clerk, and extending to the value of the fourth part of the Church, or of the Tithes belonging thereunto; for in this Caſe the cognizance thereof belongs to the Kings Temporal Courts by the Stat. of Weſtm. 2. c. 5. wherefore, the Defendants Patron being like to be prejudiced thereby in his Church and Advowſon, in caſe the Plaintiff ſhould prevail and obtain in the Spiritual CourtrReg. Orig. fo 35. b vid. Old. N. B. fo. 31. and the Reg. fo. 35. and Brit. c. 109. tit. a.. So that this Writ lieth properly where there is a conteſt or Controverſie between two Clerks in an Eccleſiaſtical Court, of a Church or part thereof for Diſmes or Tithes amounting at the leaſt to the value of the fourth part of the Church; In which regard the Patron of the Clerk Defendant, loſing his Advowſon in caſe the Plaintiff ſhould recover in the Spiritual Court, ſhall have this Writ directed to the Clerk Plaintiff, or to the Officers of the Eccleſiaſtical Court, commanding them to ceaſe their proceedings, until it be diſcuſt and decided in the Temporal Court, to whom the cognizance of the Advowſon belongs; This Writ ſhall be between four perſons, whereof two are Patrons, and two are Clerks; and is not returnable as other Writs; but if they ceaſe not their Suit and proceedings in the Eccleſiaſtical Court, an Attachment iſſues. sTerms Law. verb. Indicavit..
(7.) Advocatione Decimarum is a Writ, that lieth for the claim of the fourth part or upwards of the Tithes that do belong to any ChurchtReg. Orig. fo. 29. b..
(8.Upon a Ne admittas tried and found for, &c.) Admittendo Clerico is a Writ granted to him, who hath recovered his right of preſentation againſt the Biſhop in the Common PleasuReg. O. rig. fo. 33. a. F. N. B. fo. 38..
(9.) Beneficio Primo Eccleſiaſtico habendo is a Writ directed from the King to the Lord Chancellor, to beſtow the Benefice that ſhall firſt fall in the Kings gift, above or under ſuch a value, upon this or that perſonwReg. of Writs fo. 307 b..
(10.) Cautione admittenda is a Writ that doth lie againſt a Biſhop, who holdeth and detaineth an Excommunicate Perſon in Priſon, notwithwanding he offers ſufficient Caution or Aſſurance to obſerve and obey the Orders and Commandments of Holy Church from thenceforth. The form and further effect of which Writ vid. Reg.xReg. of Writ. p. 66. F. N. B. f. 65. & F. N B 63. Vid. Roll. Abr. f. 234..
(11.) Clerico infra ſacros ordines conſtituto, non eligendo in officium, is a Writ directed to the Bayliffs, &c. that have impoſed a Bailywick or Beadleſhip upon one in Holy Orders, charging him to releaſe him thereofyib. f. 143. a..
(12.) Clerico capto per Statutum Mercatorum, &c. is the delivery of a Clerk out of Priſon, who is impriſoned upon the Breach of the Statute Merchantzib. f. 147..
(13.) Clerico convicto commiſſo Goalae in defectu Ordinarii deliberando, is a Writ for the delivery of a Clerk to his Ordinary that was formerly convict of Felony, by reaſon his Ordinary did not challenge him according to the Priviledges of Clerksaib. f. 69. a..
(14.) Annua Penſione is a Writ now grown obſolete and out of uſe: For whereas anciently there were certain Abbies and Priories, that in reſpect of their Foundation or Creation, were obliged unto an Annual Penſion due unto the King for ſuch his Chaplains unprovided of a ſufficient Living, as he ſhould nominate and appoint: This Writ in purſuance thereof was wont to iſſue to ſuch Abbot or Prior, in favour of ſuch whoſe name was compriſed in the ſaid Writ, until &c. requiring the ſaid Abbot or Prior, that for his ſaid Chaplains better aſſurance, he give his Letters Patents for the ſamebReg. Or. f. 1 65, & …7. & F. N. B. f. 231..
(15) Vicario deliberando occaſione cujuſdam Recognitionis &c. is a Writ that lieth for a Spiritual perſon impriſoned upon forfeiture of a Recognizance, without the Kings WritcReg. O…ig. f. 147.. For as there is one Form of the Writ Statuto Mercatorio, for the impriſoning of him who hath forfeited his Bond called the Statute Merchant, until the Debt ſatisfied, as to Lay perſons: So there is another Form of the ſaid Writ, as againſt Eccleſiaſtical Perſonsdib. f. 148..
(16.) Touching the three Writs, viz. De Excommunicato capiendo. Excommunicato deliberando. Excommunicato recipiendo vid. ſup. in cap. de Excommunicatione.
(16.) The Village of St. Andrews brought a Quare Impedit againſt the Archbiſhop of York and Counteſs of Strewsbury, Quare Imp. D…rrein Preſentment.and after brought an Aſſize of Darrein Preſentment for the ſame Church. The Quare Impedit is returned. It was ſaid by the Court that the Aſſize of Darrein &c. ſhall abate, vid. by Hobard. But if he had brought another Quare Impedit, it had been well. And ſo it was reſolved in the Earl of Bedfords Caſe; and by Hutton, that the Statute of W. 2. cap. 5. proves it, viz. Quod habeant Aſſ. &c. vel Quare Imp. but not both vid. 8 E. 3. 17.eMich. 15. Jac. C B. rot. 32. N y. Rep.
(18.)In a Qua. Impedit the Plaintiff muſt alledge a Preſentation in himſelf, or in thoſe under whom he claims; and ſo muſt the Defendant.—Sr. Jo. Tufton verſ. Sir Ric. Temple. Vaugh. Rep. In a Quare Impedit the Incumbent pleads, that before the Action brought he had been in by the ſpace of ſix months, &c. of the preſentment of S. S. in the Church. This difference was taken by Serjeant Henden, and agreed by the Court: when the Incumbent pleads the preſentment of a Stranger, there he ought to ſhew, That the Stranger had a Title, and that he was ſeiſed of the Advowſon, &c. or that he was ſeiſed of a Mannor to which, &c. But where he pleads that he was in for Six months of the Preſentment of the Plaintiff himſelf, or by collation by lapſe by the Ordinary, there he need not make any Title. 10. E. 11.fLiſter againſt Crameel. Noy's Rep..
(19.) If a man recovers in a Quare Impedit againſt an Incumbent, the Incumbent is ſo removed by the Judgement, that the recoverer may preſent to the Church without other removal of the Incumbent, who yet continues Incumbent de facto until there be a Preſentation made by the recoverergM. 12. Jac. B. R. inter Whiſtler and Singleton. Reſolv'd per Cur.—Rol. Abr. verb. Preſentment. lit. Q. nu. 6.. And after ſuch recovery in a Quare Impedit, a Stranger to the recovery cannot preſent to the Church, for notwithſtanding the recovery, the Incumbent continues Incumbent de facto as to all Strangers to the recoveryhM 13. Jac. B. R. inter Fairbank and Durrham..
(20.) A Quare Impedit lies of a Donative, and the Writ ſhall be Quod permittat ipſum preſentare ad Eccleſiam, &c. and ſet forth the ſpecial matter in his DeclarationiCo. Lit. 344.. And the Grantee of a next avoidance may have a Quare Impedit againſt the Patron who granted the ſamek39 H. 6. qua. imp. 95. per Cur..
(21.) If the Husband, who hath an Advowſon in right of his Wife, be diſturbed in his preſentation thereto, and dies, the Wife ſhall have a Quare Impedit on that diſturbancel3 E. 3. qua. …mp. 57. 3 H. 5. qua. imp. 71. admit. Alſo a Chapter may have it againſt the Dean for their ſeveral poſſeſſionsm40. E. 3. 28. b.. It lies alſo of a free Chappel which a man hath by Patent from the King,n14 H. 4. 11. b. if the Sheriff refuſe to put him into poſſeſſion thereofo18 E. 3. 1.. A preſentation by a Biſhop as Patron, is ſufficient for the King to maintain a Quare Impedit to the Church, when the Temporalties come into the Kings hand by reaſon of vacancy of the Biſhoprickp50 E. 3. 26..
(22.) The Writ of Right of Advowſon lieth properly for him, who claims to have the Advowſon to him and his Heirs in Fee-ſimple qTerm. Law. verb. Quare Impedit.. This Writ lies of an appropriationr44 E. 3. 34. 14 H. 4. 14. b.. He that procures this Writ, ought to ſhew a poſſeſſion in himſelf or Anceſtorss21 E. 4. 1. 1 H. 4. 2. 21 E. 3. 27. b.. Admiſſion and Inſtitution of a Clerk without Induction, is not ſufficient to maintain this Writt38. E. 3. 9. Com. Hares & Bickley, 528..
(23.) When a man preſents his Clerk to the Biſhop within the Six months, and alſo another preſents his Clerk, in that caſe the Church is Litigious, and the Biſhop may iſſue the Writ De jure Patronatus, to enquire to whom the right of Patronage belongs. This Writ may alſo iſſue out of Chancery to the Ordinaryu34 H. 6. 39. b. per Moyle.. And the Ordinary is to make Inquiſition thereonw34 H. 6. 11. b. per Pr…ſot.. Some queſtion is, at whoſe coſts this Writ ſhall be ſued, whether at the Biſhops, or at the parties? It hath been ſaid, that it ſhall be ſued at the coſts of the Ordinary; becauſe it is for his own diſcharge and for his eaſe x5 H. 7. 22. per B…tan. But Reble contra. & contra 34 H. 6. 11. b. per Danby. and 2 Drs. and 35 H. 6. 19. per Priſot.. But it ſeems otherwiſe, for that the Ordinary is not oblig'd to award a Commiſſion to enquire De Jure Patronatus ex Officio, but at the deſire of the partiesy8 E. 4. 24. b. per Curtam. 5 H. 7. 20. b. per Reble. and 22 H. 6. 30. per Mark.. For when the Church is litigious, he may ſuffer the lapſe to incurr without enquiry. 34 H. 6. 41. Curia. 35 H. 6. 18. b. and if he ſhould be obliged to grant it ex Officio, then he ſhould never have a lapſe. 35 H. 6. 19. And by 34 H. 6. 38. It ſhall be at the coſts of the parties, for that the Ordinary is Judge in that caſezRol. Abr. Ver. preſentment. lit. P. pag. 384.. If there be but one onelyonly that doth preſent to the Ordinary; yet he may award a Jure Patronatus a21 H. 6. 44. 34. H 6. 40.. But if two preſent, then there may be two Jure Patronatus b21 H. 6. 44.: And if the Ordinary admit his Clerk, for whom the right is found upon the Writ, it will excuſe the Ordinary, and he ſhall be no diſturber, although the right in a Quare Impedit be afterwards found for the other partyc34 H. 6. 11. b. per Priſot. 34 H. 6. 38.. But if on the ſaid Writ the right be found for one Petron, and afterwards the Ordinary admit the Clerk of the other Patron, that is at his peril, for he may (if he pleaſe) admit him, notwithſtanding the Commiſſion, and the finding for the other d34 H. 6. 11. b.. For it ſeems it is but for the Ordinaries better information. But when the right on the ſaid Writ is found for one Patron, and the Ordinary admits the Clerk of the other Patron: if it be afterwards found in a Quare Impedit, that the right belongs to that Patron for whom it was found in the Jure Patronatus, he will be a diſturber eibid. per Priſot.. It is ſome queſtion, whether the Ordinary may ſuffer the lapſe to incurr, after it is found on the ſaid Writ for one of the Patrons? It is ſuppoſed that he may not: For 35 H. 6. 19. per Priſot. he ſhall not have any lapſe after it is found for one of them, for he is to admit his Clerkf21 H. 6. 44. 45. Roll…ubi ſupra.. Yet after it is found for one of them, the Ordinary is not obliged to admit his Clerk without a new requeſt made to him by the Clerk, but no need of the Patrons making any new requeſt or preſentationg34 H. 6. 12. per curiam..
(24.) The Writ of Spoliation lies properly by one Incumbent againſt another Incumbent, where the right of the Patron comes not into debatehF. N. B. Spoliation. fo. 36. b. vid. Caſ… Edes verſ. the Biſhop of Oxford. in Vaugh. Rep.. And therefore if a perſon be Created Biſhop, and hath a diſpenſation to hold his Rectory, and after the Patron preſents another Incumbent, who is inſtituted and inducted, the Biſhop ſhall have againſt that Incumbent a Spoliation; which proves the Biſhop to continue Incumbent after his Conſecration, and to hold his Rectory by his former Preſentation; and in ancient times it was held, that where the Pope doth Licence one, who is created a Biſhop, to retain his former Benefice, and the Patron preſents another, if in that Caſe the Elder Incumbent ſues a Spoliation in the Spiritual Court, it well lies, for both claim by the ſame Patroni38 H. 6. f. 19. Br. Spoliation pl. 4.. So that if one happen (during the Incumbents preſentation) to be preſented by the ſame Patron, or do come into the ſame Church, by courſe of Law, ſo that the Patronage comes not into Debate, a Spoliation lies.
(25.) If any man ſhall hold or keep the poſſeſſion of a Church by force, ſo that the Biſhop or the Parſon cannot do their office there, it ſhall be removed by the Kings Writ, called Vi Laica removenda, as aforeſaid:O. N. B. 33. b. which Writ lies eſpecially where the debate is between two Parſons touching the ſame Church, or Prebendaries, on the Title, and where the one keeps the other out by Force and Arms; but by this the Force only ſhall be removed, and not the Incumbent, who is in poſſeſſion of the Church, whether he be in poſſeſſion by right or wrong.F. N. B. 54. And this Writ ſhall be granted on the bare Surmiſe of the Incumbent, or party greived, without any Certificate made by the Biſhop into Chancery, as upon ſuch Certificate, & alſo by reaſon thereof; and there are two ſeveral forms of the Writ in theſe two Caſes; which Writ is returnable or not, at the pleaſure of the party who ſues out the ſame;Finch. Nomotexnia. p. 138. and may be returned into the Court of Common Pleas as well as into the Kings Bench.
S. was deprived by the high Commiſſioners for not conforming to the Canons of the Church; it was general, quia Refractarius; but no particular Canon mentioned: The King by reaſon of the ſaid Deprivation, preſented B. who was inducted, but S. would not yield up the poſſeſſion of the Parſonage-houſe: whereupon the Writ of Vi Laica iſſued out of Chancery; the Sheriff came to the houſe, but could not apprehend the parties; B. finding the houſe empty, entered peaceably; S. made an Affidavit in B. R. that he was ouſted by the Sheriff by force, and B. put in poſſeſſion; the Court of B. R. thereupon granted a Writ of Reſtitution, he having an Appeal depending of the Deprivation: In this Caſe theſe points were reſolved; (1) That the Writ De vi Laica removenda is not returnable unleſs the Sheriff find the Force. (2) That the Kings Bench cannot award Reſtitution upon an Affidavit, but there ought to be a Return of the Writ of Vi Laica &c. in the Chancery, and upon Affidavit made there, that the Sheriff by virtue of the Writ hath removed one and put another in poſſeſſion, Reſtitution is awardable. (3) Reſolved, that upon a Deprivation by the High Commiſſioners no Appeal lieth, becauſe the Commiſſion is grounded upon the Prerogative of the King, in the Eccleſiaſtical Goverment; and therefore the Commiſſioners being immediate from the King and poſſeſſing his perſon no Appeal lieth. (4) Reſolved, That the Canons of the Church,Bird and Smiths Caſe More's Rep. made by the Convocation and the King, without Parliament, ſhall bind in all matters Eccleſiaſtical, as well as an Act of Parliament: In the principal Caſe it was adjudged, that until the Deprivation was repealed, it ſtood good; and ſo B. had good Title to the Church.
A Leaſe was made of a Rectory, a Parſon was preſented to it, and upon a ſuppoſition, that he was held out by Force, had a Vi Laica removenda, Roberts and Amond ſhams Caſe. More's Rep.upon which the Sheriff returned Non inveni vim Laicam, nec potentiam armatam, notwithſtanding which Return upon Affidavit, that he was kept out with Force, a Writ of Reſtitution was awarded out of the Kings Bench. Yet in Zakars Caſe, Coke Chief Juſtice ſaid, we are to judge upon a Record, and not upon Affidavits, in which Caſe he being deprived for Simony, Richardſon Serjeant moved the Court to have him reſtored again,Mich. 13. Jac. B. R. the Kings caſe againſt Zakar Bulſt. par. 3. becauſe (as he urged it) he was unlawfully removed: The reaſon being, that in a Vi Laica removenda, whereby he was removed (which Writ by F. N. B. and the Regiſter, comes to remove omnem vim Laicam) he ſhews that the Sheriff did diſpoſſeſs him, and put another in, the which he ought not to do, and as Coke Chief Juſtice then ſaid, that in ſo doing he had done againſt the Law, if he removes one and puts another in; and Richardſon Serjeant there cited Robinſons Caſe, Hill. 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda, had removed one, and put another in, there this was debated, whether upon this ſhewed to the Court the firſt man removed ſhould be reſtored again or not; and there reſolved by the whole Court, the ſecond man to be diſplaced again, and the firſt to be reſtored; and Coke ſaid, if a Juſtice of Peace remove a Force, he cannot put another into poſſeſſion:
(26.) There is a Writ in the Regiſter, Quod Clerici non Eligantur in officium Ballivi &c. For all Eccleſiaſtical perſons in office are allowed certain priviledges by the Common Law in reſpect of their Function; they are exempt from all perſonal charges, which might any way hinder them in their calling;F. N. B. 175. b. as to be Choſen to the Office of Bayliff, Beadle, Reeve or the like in reſpect of their Lands; to which end the ſaid Writ is provided, which doth recite that by the Common Law they ought not to be choſen to ſuch offices aforeſaid, and commands that in caſe any Diſtreſs be taken or Amercement levied on any of them on that account, that it ſhall be reſtored. So the Stat. of Marleb. cap. 10. That perſons of Holy Church, and perſons Religious,Finch. ubi ſup. p. 135. Stamf. 133. ſhall not be commpell'd to come to the Sheriffs Tourne or Leet; and ſo alſo it is by the Common Law. In Favour alſo of Holy Church the Law did anciently allow them Two other priviledges, viz. Clergy and Abjuration.
In the Ninth year of the Reign of King James, a queſtion was moved, whether after the Conviction of an Heretick before the Ordinary, the Writ de Haeretico comburendo did at that day lie or not; as to the Reſolution of which queſtion the Judges were then divided in opinion, as appears in the Fortieth Chapter precedent, §. 7.Cap. 40. ſect. 7. in fin. ſect. pag. 564. what was then controverted, is now decided by an Act of Parliament made in the 29th. year of his Majeſties Reign, wherehy it is enacted, that the Writ commonly called Breve de Haeretico comburendo, with all proceſs and proceedings thereupon, in order to the executing ſuch Writ, or following or depending thereupon, and all puniſhment by death, ſhall be from thenceforth utterly taken away and aboliſhed.
foreign
FINIS.