THE Case and Argument against SIR IGNORAMVS OF CAMBRIDG BY ROBERT CALLIS Of GRAIES-INNE Esquire, Afterward Serjeant at LAVV, in his Reading at STAPLS-INN in LENT 14. Ia. R.

LONDON Printed for Mathew Walbancke at Graies-Inne Gate: Anno Dom. 1648.

THE CASE

MOnsieur Avidus in le droit de Madame Parcella sa feme fuit sesie del Mannor in Wrangle & Jars in Countee de Cum­berland, a que l' advowson d' Eglise in L. fuit appt. il g [...]ant son mannor in Wrangle & Jars cum pert. al Sir Symon Magus; le eglise devient voi­de Monsieur Avidus present. B tunc devient re­cusant convict & mort. sa feme present D, Sir Sy­mon present E, le Vniversity de Cambridge presents Sir Ignor. le agard. Jure patronat, Levis (que) eslie le Jury trov [...] tout le matter avandit & (que) B. ad primer benefice, feme fuit schismatique, E, ad contract ove Sir Symon de further-son institution, Sir Ignoramus fuit egregie illiteratus, 6 mois pass, Roy present Do Apollos le Levis (que) eslie collate M. Grace son Chapleine demesne a que le avoydance pertain. hac vice. Quere

IN THE CASE
Intentio Nominum, & Interpetatio eorum.

1. MOnsieur Avidus is the greedy gripeing pa­tron who will not part with the Benefice, but with a Si quis plus dare voluerit.

2. Sir Symon Magus is the Simoniacall patron▪ Nota, He is descended of no great Gentry, but as­cended from a Kna. to a Kni. He lately made two purchases, the one of his Knighthood, the other of his advowson.

3. B. the Cleark of Monsieur Avidus is noted for an ingrossing Benificer, who though he had not passed one degree in the Vniversity, yet boldly enter­prized to set upon two Benifices in the Country, Au­daces fortuna juvat.

4. The Vniversity of Cambridg are patrons by the law of 3. Jacobi, but bestowed the Benefice on a sot without, reason, Sapiunt generaliter, in [...]ipi­ [...]nt particulariter.

5. Sir Ignoramus intended for the Vniversities Catacoustichon a generall noted Coxcomb, a re­semblance [Page 5] of the Actor which they bestowed on the Innes of Court, Ignoramus.

5. The Eves (que) Eslie, in English, signifi­eth a Bishop Elect, but not sacred; I will say no more to but Nolo se vlterius tangere.

7. The Four presentations comming so neere toge­ther, shew to us that many Clarkes at some times ride poast▪ for one Benefice, Poast for a Benefice.

8. The awarding of the Jure patronatus, presents unto us pretty device to set many Clarks together by the eares whilest a third person get it from them all.

9. Doctor Apollos is a grave and learned Di­vine, the Kings Chaplaine, to demonstrate, that though there be many Knaves and fooles, yet there be some wise learned men also.

10. Master Grace is intended the flourishing ig­norant favourite, who by his friend or his purse (and not for his desert in Learning) attaineth a Bene­fice: he is a resemblance of the Law-favourite, who for his Learning deserves rather to be an Auditor, then an ignorant Orator; Sed fortuna favet fatuis, Insomuch that he is a Preacher or Practiser of For­tune; the truth whereof is, that the decease of his friend is the end of his practise, Amicus Usque ad mortem: And of this Ignoramus, and Sir Igno­ramus I motto thus: Pari jugo sociantur asi­ni.

11. I Called the Woman Parcella, and set her out for a Schismatique, to this end, because a certaine woman (I will not name) but one professing to be a Brow­nist, took a Journey to Amsterdam; & after 2 yeares stay she returned againe with Child to her husband, [Page 6] which sheweth though she be a weak vessell to graft Religion on, yet she is a strong stock to get a Religi­ous child on, vera filia Matris.

In all these, I only aimed at the iniqui­ty of the time, and by their Names to de­monstrate their qualities; I suppose that no Man or Woman can religiously find them­selves grieved at me, If they doe, I say no more to them, but Adsum qui dixi, In me convertite tela.

THE CASE

MOnsieur Avidus in the right of Parcella his wife was seised of a Mannor in wrangle and jars in the County of Cumberl: To the which the advowson of the Church of L. was appendant. He granteth his Mannor in wrangle and jars Cum Pert. to Sir Sy­mon Magus; the Church became void, and Mon­sieur Avidus presented thereto B. and then be­came a Recusant convict, and died. His Wife pre­sented D. Sir Symon Magus presented E. The Vniversity of Cambridg presents Sir Ignoramus: The Bishop elect awards a Jury Patronatus. The Jury findeth all the former matter, and that B. had a former benifice; the Wife was a Schis­matique, and had contracted with Sir Symon to further his institution. Sir Ignoramus was Egre­gie Illiteratus. The elect refuseth them all. The Six moneths passe, the King presents Doctor Apollos, The Bishop elect collates Mr. Grace his owne Chaplin.

To which of these the avoydance of this Church appertaines for this turne, Quere

  • [Page 8]There be in this case six Patrons.
    • 1. Monsieur Avidus, In iure ux [...] ­ris, the greedy patron.
    • 2. Parcella his Wife, In Jure suo pro­prio, the Schismatique.
    • 3. Sir Symon Magus the Grauntee, a Simoniacall patron.
    • 4. The Vniversity of C. by the Sta­tute of 3tio Iacobi Regis, of Recu­sants.
    • 5. The King by the Statute of 23. Eliz. of Symonie.
    • 6. The Bishop elect by lapse.
  • There be 6 Clarks which stand for this Church.
    • 1. B. The Clark of Monsieur Avi­dus, double-beneficed.
    • 2. D. The Clark of Parcella, blot­ted with Schisme.
    • 3. E. The Clark of Sir Symon Ma­gus, guilty of Symony.
    • 4. Sir Ignoramus the illiterate Clark of the Vnivetsity.
    • 5. Doctor Apollos, the great and learned Divine.
    • 6. The Chaplaine of the Bishop, For­tunes favourite.

So that there be twelve persons in the case, which strive for this Church, and every one of their parts hath been taken, ether by one Gen­tleman, or by another, which have argued the same before me. So that now (I am sure) there is some expectation of the Gentlemen Auditors, (which be many) which part I shall take in this [Page 9] case: but before I shall tell you, with whom I meane to take part, I shall expound unto you, the pretty tale of a merry host. For when once I tra­velled over the River of Trent, and Owse from Lincolne towards York, I lodg'd at the house of a merry host, and being many of us guests at sup­per, our host told us of divers men of their Town had been fishing in the River of Trent, where were good store of Salmons, and he asked his guests how many Salmons we thought they had got that day, where-upon some of us said twenty, others fifteen, others ten, & some more, some less, every one according to his own conceit and hu­mour; and when every guest, had said by guesse how many Salmons were caught, we were all of us desirous to know of him, how many they had got, who very wittily, and unexpectedly told us, that they had got, never a one. So I may apply this jeast to our case. Here be twelve persons in the case pretend right to the avoydance of this Church, and every one of the Gentlemen by great and strang chance, have taken severall cour­ses, and also have held with a severall party; so that now (I am assured) it is much expected, which of the parties I shall hold to have right to the said avodyance, whereupon (with the merry host) I do hold, that never a one of the parties in the case; hath right to the Church for this time, but that there is a person no named in the cause, hath right to the presentment, whose name I mean to conceale till I grow towards the end of my ar­gument; and therefore now I meane to distinguish and divide my case into these severall points, which be as followeth.

[Page 10] The points intended in my case be,
  • 1. What a Mannor is, and whether a Mannor may be devided, and that two Mannors may be made of one.
  • 2. Whether the advowson doth passe with the Man­nor granted, or doth remaine with the thing ungran­ted.
  • 3. Because the Advowson lieth in another Town, then where the Mannor lay, whether it did pass or not, by words Cum Pertin.
  • 4. When Monsieur Avidus did present & dye, whe­ther the wi [...]e should not have her Clark advanced to the benefice, & the rather because the Clark presented was after refused by the Bishops elect.
  • 5. If after that Sir Monsieur Avidus became a recusant convict, whether the presentment be trans­ferred over to the Vniversity of Cambridg by the statute of 3 Jacobi & so ought to be conferred upon their Clark Sir Ignoramus, or that he must be put to seek out a benefice in some other place.
  • 6. Whether the Jure Patronatus be well awarded by the Bishop elect or not, and whether the verdict of the Jury nas according to Law or no.
  • 7. If the refusall of the Clarkes was done upon a iust ground or no, and whether notice was necessary or not.
  • 8. If it be such a Simony committed by and between Sir Simon and his Clark, as that thereby the Clark lost his benefice and Sir Simon his presentment hac vice, and whether the King may present by the statute XXXI Eliz, or not.
  • 9. Whether the levesque eslie might present by laps.
  • 10. What is the preson to whom the presentment [Page 11] doth belong if none of the parties aforesaid have right according as I hold

And for the Argument of the first point, what a Mannor is.1 Point Bracton Plow▪ Co [...]. 170. Mr. Bracton saith, quod est Capitale mesuagium ad quod possint diversa pertinere, Master Plowden in Hill and Graunges case defineth a Mannor to be quoddam Compositum of demesnes and services: and I doe hold that a Mannor iss a little Common-Wealth, and is compounded of necessity, as things and causes without the which it cannot be nor have perfect essence.

which three things be,
  • 1. Scitum pro habitatione Domini pourson delite & demesnes for his profit.
  • 2. Services to be done by the Ten­nants testifying obedience.
  • 3. And a Court Baron for the exe­cution of justice amongst the Ten­nants.

And these be all the things which be of necessity required in the essence of a perfect Mannor. For if any of these be wanting, there is but an Nuncupative Mannor as it is tearmed in Sir Moyle Finches case in the Lord Cooks rep:Cook. rep. 6. or rather (as I may more fitly terme it) And ima­ginary Mannor Nomini & vulgari appellatione & non in re & in opinione Jurisperitorum.

There be divers things which be not required, ex rei necessitate to the making of a Mannor, & yet for divers respects and considerations they be necessa­ry to appertaine thereunto, as warrens of Counyes, Chases and Parkes for the Lord to use for his de­letation, villenes regardants to doe the Lords [Page 12] works, piscaries for provision in his House, and advowsons for the advancement of men skilfull in Religion and many other things of the like na­ture, but all these be but instrumentall adjuvants and supplements, and are nothing to the essence of a Mannor, and yet they be necessary to be had therewithall, either for the profit or pleasure they do bring in their severall kinds: So that it is hol­den in our books that by the grant of a Mannor the S [...]ite, demesnes, services, and Court Baron do passe, but the Warrens, Parkes, Chases, Piscaries, and things appendant do not passe to the Grauntee by the grant of the Mannor, without the words cum pertin. 8. H. 7. as appeareth in 8. Hen. 7. sol. 4. b. But whether or no an advowson appendant will passe without the words cum pertin. by the graunt of the Mannor; hath been questioned in our bookes, and Mr.Pa [...]k. 44. B. 3. 8. H. 7. Perkins▪ title grants fol. and in 44. Edw. 3. fol. 40. and many other books be, that will passe without the words cum pertin: But 8. Hen. 7. aforesaid is to the contrary, and surely I can see no perfect reason wherefore it should passe per-Nomen Manerii without the words cum pertin. more then other appendants and appurtenants will do, considering it hath alwayes the word appen­dant with it, supposing it to depend and belong to a Mannor and not to be parcell, and it is also in pleading said Pertinere, unlesse the old con­ceit hath wrought the opinion of men to be, that it is parcell of the Mannor, because Livery and seisin might have bene made of it, but the Law in that case being altered, I see no reason but that may stand in equipage and equall termes with a [Page 13] villeine regardant, which will not passe without the words cum pertin. But generall opinion doth sway the other way, and therefore I leave it where I found it, and yet I intend to prove here­after, that (as this case is) these words cum pertin. must be materiall to passe the advowson or else the word Mannor will faile. Sir Symon the wic­ked grauntee when he should stand most need of it.

It is fit in the handling of this point, to dispute whether a Mannor may be made at this day or not, & I hold it cannot, the reasons whereof are fit to be set forth and declared. I confesse that the Law is taken in 33. H. 8. in Brookes Cases, pl. 2 10. & in 35. H. 8. plac. 274. in the same Book and in Sir Moyle Finches Case.33. H. 8. 35. H. 8. Sir Moy [...] Finches C [...]se. That a Mannor cannot be made at this day, Although a man gives divers parcells of Land, Seperaliter in taile Te­nandum of his chiefe Mansion-house, and some men have been of opinion that Mannors might have been made untill the Statute of Westm. the third of Quia Emplores terrarum did take place, be­cause that Statute took away the Fesans of te­nures, Iator veray seigniour, & veray tenants, which must be, and concurre where there shall be a Mannor; but I do hold [for mine owne part] that there be two materiall causes, wherefore a Mannor cannot be made De novo at this day; The first, because all this Realme soon after the con­quest theroof by William the Conqueror, was devided into Mannors: So that al lands, & eve­ry Land was put within one Mannor or other, & therefore the Law was so satisfied in that, as there [Page 14] was an end of making of Mannors when the cause ceased. 2ly. This word Mannor implieth in it selfe, A being time out of memory, which we call prescription, and this appeareth to be so by the said books of 33. H. & 35. H. 8. which are, That a Mannor must be De tempore cuius memoria hominum non existit in contrarium: 33. and 35▪ H. 8. So that for these two reasons, I am of opinion, That neither a Subject nor the King can make a new Mannor at this day, Also, for the absurdity, It were unfitting that every petty Free-holder by giving severall parcells of his Grounds to diverse severall persons, should make himselfe Lord of a Mannor at this day.

But the question and point in my case is not whether one might make a Mannor de novo at this day, But whether, of one old and perfect Man­nor two Mannors may be made, and whether one Mannor may be devided into two or not?

It is true that our Law loves entierties, and re­jects fraction, Quar union fait unity & fraction fist division, Come garranty per le Ley est entter & pur ceo le party, que ad ceo ne puit, ceo pur son act demesne devider, as appeareth by Morices case in the 6. Rep▪ of the Lord Cooke, and by Mr. Litle­ton; Morices Case. If one have a Rent charge, and purchase par­cell of the tennancy or graunt part of the Rent to another: All the Rent is extinct in the one case, and the distresse is lost in the other; For as the Rent was an entire thing, so was the distresse, and Lex non patitur fractiones, So in E. 4. The Office of the Chiefe Prothonotary could not be granted to two, to make two severall Officers of [Page 15] them:Curles case. Quia sic centum, but as Auditor Curles Case in the 11. Rep. Two Persons may be made one Officer,3. E. 4. Dyer Fol. Sed hoc per statutum: So by 3. E. 4. and Dyer fol. Two Joyn-tennants cannot make partition without a Deed, because it is contrary to the nature of Joyn-tennancy, to have a division or partition, So that we may collect, that where the Law hath made an union, it dislikes the con­trary, and so it may be well held in argumentt that one Mannor cannot be divided into two: yet, in 9.9. E. 4. E. 4. fol. 17. If the Mannor of Dale be held of the Mannor of Sale and Escheat, that is parcell of the Mannor of Sale; So here is two Mannors made into one, which proves the one derived out of the other in principio, sed non licet arguere principia, But that is by act in Law. And so is 26.26. H. 8▪ 4 H. 8. fol. 4. that if a Mannor descend to two Coparceners, and they do make partition so that either hath demesnes and services, here either of them hath a Mannor,12. H. 4. Et cum hoc concordat 12. H. 4▪ For Coperceners are by Law compellable to make partition, and then the Law which doth compell the doing of the act doth never work any injury to either party, For that were torcious which cannot be presumed in the Law which in it selfe is right and justice;9. E. 4. And although that 9. E. 4. aforesaid seems to sway that two Mannors may be made one by act in Law, yet by the act of the parties,2. E. 2. Perkins. I find the Law contrary. As in 2. E. 2. and Mr. Perkins, where a man had two Mannors and he for ease of his tennants caused all his ten­nants to come to one Mannor to do their suit and service, and that for along time, yet that did not [Page 16] make the tennants of the other Mannor, in right tennants to that Mannor, they did their suit unto, neither did it make both the said mannor one en­tire Mannor:9 E 4. In 9. E. 4 fol. 17. It is said by Ca­tesby that if I have a Mannor which lyeth in Dale, and Sale, and I grant my Mannor in Dale, the Grauntee hath a Mannor, and yet it shall extend but only into Dale; Finches. And in Sir Moyle Finches case, it is said for Law, That if I have a Mannor and grant part of the demesnes and services to I. S. yet by this grant the Grauntee shall not have a Mannor. Out of which two books I gather this conceit; That if I have a Mannor, which doth extend into Dale, and Sale, and there be demesnes and services in either Town, and I grant my Man­nor in Dale, that the Grauntee hath a Mannor there, and that which remaineth in Sale, shall be but as things in grosse and no Mannor; Sic e [...]con­verso, If I grant all my Lands, Tenements, and Hereditaments in Sale, the Grauntee shall not have a Mannor, but the demesnes and services as things in grosse, and the Mannor shall remaine with me in Dale.

So I may conclude that Sir Symon the Grauntee, hath a Mannor in Wrangle, and Jars passed unto him.

But now whether the Advowson doth passe to him in some question,2 point. For things appendant or appurtenant are rather inclinable to remaine,33. H. 8. then to passe by grant;Dyer Fol. 43. 44. E. 3 F [...]tz. H Impt. Q 137. Forin 33. H. 8. in Dyer fol. 48. and 44. E. 3. Fitzh: quare imp: plac. 137. If one have an advowson appendant [Page 17] to a Mannour, he may by expresse words make that ap­pendant to one acre parcell of the mannour, but not by these words cum pertinentiis; but if these cases hereafter ensuingbe wel noted & weighed, they wil make he Law to appeare, where these words, Cum pertin., be requisite to be used to make the advowson passe, and where not. The first case is in 6.1 6. E. 3. E. 3. 44. Fitz. h. title quare imp. pla. 40.Fitz. Q. which is, that if the third part of a Mannour with th'appurtinances,Impr. 44. be assigned in dower to a Feme, the third part of the Advowson will passe to her without naming of it in expressis verbis &c.9: E▪ 2, Fitz Bre. 844▪ So is 9. E. 2. Fitzh. Title Breife pla. 844. That if one bring a formedon of the moety of a mannour, Cum pertin. he by that shal recover the moety of the Advowson; and the reason thereof (as I conceive) is, because the Feme in the first case, comes in upon the best possession of her Husband, and in her case, and in the case of the Recoveror they both come in upon an ancient right, which is as well to the advowson as to the Land. And these be the reasons (as I conceive) wherefore the part of the Advowson was to come to them by vertue of the said words, Cum pertinen­iiis, but without the said words, (as I conceive by the said cases) no part of the advowson had come to them. There is one other pretty case in 17.17. E 3. 2. H. 7. E 3. Fol. 38. and in 2. H. 7. Fol. 4. and 5. If there be three Coparceners of a Mannour, and of an Advowson appendant, and they make partition of the Mannour and say nothing of the Advowson, the Advowson remaineth in common undi­vided as it did before; and the reason (as I conceive) is this, because it stands as a thing indifferent, whether partition be made of it or not, and there is neither profit nor prejudice comes by the not dividing of it, more then if it had been divided in the intendment of the Law: But Master Stamford in his prerogative Fol.4. Stamfords prerog. 43 43. 8 hath the case thus, That if I. S. be seised of a Mannour to the [Page 18] which there is an Advowson appendent, and I. S. graun­teth the moity of the said Mannour Cum pertinentijs, that doth not passe the moity of the Advowson without ex­presse mentioning of it; and the reason (as I conceive the case) is, because by way of graunt, the part of the Advowson will not passe being the only act of the party, and it will rather remaine then passe in a case indifferent, quia potest facilius remanere quam removeri. Yet all these cases differ from my case in words, for that the Mannour in Law is transferred to Sir Symon the grauntee, and that which remained in Monsieur Avidus was but demesnes and services in grosse, (if the Law be as I have taken it to be) and then I take the Law to be, that the Advowson will rather passe with the Mannour, as cum re digniori, then stay with the rest of the Demesnes and Services in grosse, being in gradu inferiori. So that, if the rest of the matter of the case ensuing doe not hinder it, then (in my opinion) the said Advowson were wel transfered to the Grauntee.

But now the point will be, [...] Point whither the said Advow­son wil pass to the Grauntee, because it lyeth not in wran­gle and Jars, to the which the Graunt is stinted, but in L. being another distinct Town per se. And I doe think that notwithstanding, the Advowson will passe to the Graun­tee, for that it is an hereditament as well where the Man­nour is wherto it is appendent, as also in the Town where the Church lyeth;2 H, 7, like to the case of 21. H. 7 Fol. 6. land in Sussex is heid of a Mannour in Essex; it is an hereditament in either County, and the distresse taken where the land lyeth may be driven into the County where the Mannour is, as appeares by 1. [...]. H. 6. 3, 2 Eliz, Dyer▪ 168 H. 6. 3. and 1. Eliz. Dyer Fol. 168. And the Advowson is there more properly where the Mannour is, then where the Church is, because the Ad­vowson is one thing, and the Church another, and it is moved for a question;Dyer. 32▪ 3 in 15. Eliz, in Dyer Fol. 323. [Page 19] That if a man graunt his hereditaments in D. where the vicaridg is which was appendent to the Colledg at Westminster, whither that passe the Advowson; so that the doubt was rather held, whither the Advowson was an hereditament where the Church lay, then where the Colledg was, to the which it was appendant; yet it was there resolved that it did passe, because the view in a writ of right of an Advowson, was there to be had, where the Church was.Dyer. 194▪ And againe in Dyer 2. and 3. Eliz. fol. 194. The Bishop of Lincoln, was patron of a prebend in the Cathedral Church of Lincoln, and the body of the prebend lay in the County of Bedford, and it was held that the quare impedit should be brought in the County where the Cathedrall Church was, and not in the County of Bedford where the corps of the prebend lay, because the Installation, which is properly recovered in this action, must be in the cathedral Church, where the Clark is to have Locum & Stallum in choro. But in a graunt, which soundeth in point of profit, there it is properly an hereditament; also where the profit lieth, that is, where the parsonage is: So that I suppose the Advowson did passe to Sir Symon. But (to make the case more perspicuous) it appeares by my case, that al­though the graunt to Sr. Symon be stinted, and tyed only to Wrangle & Jars as to the Mannour, yet the Advowson is at liberty, because it is carried by the words Cum pertinen­tijs, which come after the Town in the case, and so is not stinted to the Town of Wrangle and Jars, but is left at larg.

And so my conceit in the case appeareth concer­ning the graunt of the Mannour, and the Advow­son, and therefore I will say no more thereof, but will proceed to the other points of the case.

And now the next point of the case is,4 Point. when the [Page 20] Church did become void, and the Husband presented a Clark thereunto, and dyed before his Clark was re­ceived, whether now the Wife, whose inheritance it was and is, shall or may present her Clark, and have it from the Clark of her Husband, as also from the Graun­tee, and the rather, because that upon the refusall of the Husbands Clerk, it stands in case now, as if no present­ment at all had been made thereto.

A Feme covert in four severall cases is in the life time of her husband reputed in the law as a Feme sole.

As in 2.1 2 H 7. H. 7. If she be an executrix, she may pay debts and discharge Legacies.

And in 10. H. 7. 20. a. A man being Cestuy que use of Land,2 10 H 7 devised the same to be sold by the Executrix, and made his Wife Executrix, and adjudged that she might sell the same to her other Husband after the death of her first Husband.

And in 31. E. 1 Fitz. Cui in vita. Plac. 31. The Wife of a man abjured might make alienation of her Lands,3. 3 E 1. or bring her cui in vita.

Feme Covert, 4 L [...]don, Custome. Sole Merchant, by the Custome of London.

But these cases extend to prove what a Feme covert may have or do in the life-time of her Husband. But my my case tendeth to what a Feme shall have after the death of her Husband, which in his life-time he had power of, and is now the question.

In the which I doe observe a quadri partite.

Diver­sity.
  • 1. That some things the Wife, after the death of her Husband, without doubt shall have.
  • 2. Some things she cannot have.
  • 3. Other things she shall have, Sub modo.
  • 4. Other things shall go to her or to the Hus­bands Executors, which can first obtaine them.

1. And as to the first of these, a Woman after the [Page 21] death of her husband, shall have such bonds and bills for debts as were made to her before coverture, and which be not recovered or received by the husband in his life time, and she shall have such debts and goods remaining unaltered as she brought with her as Executrix to any person: And by 7. H. 6. 1. and 9. H. 6. 52. If she brought a Lease for yeares with her,7. H. 6▪ and the husband dyeth without altering the property of it;9. H. 6. it shall re­maine to the wife; yet in the life time of the Husband, he had potestatem alienandi, relaxandi, vel aliter disponendi, of, and over all the said matters.

2dly; It is clear that all Chattells personall, as ready Mony, Plate, Jewels, Apparell, Horses, Kine and o­ther goods of like nature, which a woman brings with her in marriage, or which she hath given to her during coverture, the absolute property therof is vested in the Baron, & though he dye they shal go to his Executors and Administrators, as appeareth by Fitzh. Nat. br: fol. 69. and many other books.

3dly; If a trespasse be made upon he Lands of the Wife, in the life of her Husband, as by breaking of his close, destroying of the Grass and Corne, the wife, after the death of her husband, shall have no action for the punishing of these torts, for these were trespasses done to such things as the Baron sole should or might take the profit of during coverture; but such torts, trespasses and injuries which extend to the hurt and dammage of the wives inheritance, as pulling down of her houses, cut­ting up and destroying the Trees, of these, the wife shall joyne in the action with her husband in his life time, and shall and may maintaine an action therof, after the death of her husband. And this diversity I collect out of the bookes of 50.50. H. 3 E. 3. 13. 43. E. 3. 16. 21. R. 2. title briefe,43. E. 3. 933. But in this part another matter ariseth, which is,21. R. 2. whether the wife shall have the avoydance, and [Page 22] the presentment to a Church which voydeth in the life time of her husband, being her inheritance, and he dye be­fore he have presented: And I suppose she shal; and so of a Ward which hapneth in the life time of the husband, by reason of the death of a free-tenant of the wife, for these be Chattells reall. And yet if the Ward be seized by the husband in his life time, or if he hath presented to the Church before his death, these acts do so vest the same in the husband, as that they do wholly deprive the wife therof. I grant that the husband & wife may joyn in the present­ment, or joyn in the quare impedit, wch if they do so, then that will reserve the same unto the wife after the death of the husband. And I find by 15. E. 4. 9. that they may joyn in the quare impedit, or the Baron may, if he will, bring it alone; but in our case, because the Baron hath pre­sented to the Church, sole without his wife, that thereby such an interest of the present avoydance is vested in the Baron; as, though the Bishop after refuse his Clark, yet the presentment shall goe to his Executors, and not to the wife; And herewithall I intend to dismiss Mistris Parcella, and her Clarke, from the preferment of this Church, at this time.

4thly But to make good the fourth part of my diversi­tie, which between the Executors of the Husband and the wife, is a plaine Capiat qui capere possit, I find by 3. H. 3. H. 6. 6. 37. and 43. E. 3. 10. That if an Obligation be made to the Baron and feme,43. E, 3. and the Baron dyeth, that the Executors or the wife, which may get the Obligation, may sue it, and recover the mony.

And herewithall I end these distinctions.

And will now proceed to the title of the University of Cambridge, [...]. Point. and of their inglorious Clark Sir Ignoramus, which is the fifth point of my case.

No Inne of Court or Chancery-man need wonder, [...]fore I stiled the Universities Clark, by the name [Page 23] of Sir Ignoramus; For it is to be conceived that he had commenced Batchelour of Art in ignorance; and the late skirmish he made with Ignoramus of the Innes of Court (being both of one bloud and kindred) may put us all in perfect remembrance of him; yet both these kinsmen in ignorance wanted not their favouring friends to help the one of them into practise, and the other of them to a Be­nefice, when many a Learned and a studious Gentle­man (wanting help of friends) might sit without both: So much is this froward age, we live in, to be condemned, the more we see ignorance preferred before learning and vertuous qualities; and dull-pated Jobber-noles unwor­thily advanced to places of profit and dignity, when ma­ny a learned Muse sits in his Study, destitute of either; Herein I taxed only the Time of partiality, that preferr'd an ignorant Asse, before a Learned Schoolman, a fault too common in the University, and not without blame in the Inns of Court and Chancery.

But seeing we have Sir Ignoramus amongst us in the Schools of Law, let us now see if we can tosse him like a dogge in a blanket, and make him vomit out his Non­sence, and rid him of his ignorance; But shall we strive with an impossibility? Quia ignorantia sua hoeret in no­mine, in capite, & in cute? Yes, and thrust him into the said Litigious Rectory; a fit Chapleine for such a Church; Besides, it may well be found out in the case, that I intended not to spend much labour to reform Sir Ignoramus, (counting the labour as endless as the Maides in the Strand, which endeavoured by washing the Black-a-More, to make him white:) But to vent our some pas­sion against Sir Symon Magus for his Simony, and one that was a Magitian from his infancy; I meane not that person named in the 8th of the Acts of the Apostles, for he offered to give mony to buy the bestowing of the Holy Ghost; [...]his refused not to take mony to bestow a [Page 24] Benefice, so they were of kinne, this was a Knight with­out living he was a Knave without grace.

For Monsieur Avidus, I set down his name so, be­cause it best suited to his condition; for he was so far from covetousness, as that he sold the Advowson to Sir Symon whom he knew was a person likely to give most mony for it, and yet according to the text of Fallere fal­lentem non est fraus, h cold have found in his heart to have cunningly defeated him of it, forgetting the old re­perte, quod fallere quenquam non est laus.

The Seditious Schismatique woman, though her effe­minacy should have innated in her mildness, peace and concord, yet having layen with her old cankered husband, he ingrafted in her seditious frowardness, seeming reli­gious forwards, being irreligious backwards in all her actions; for now adayes women grow so seeming reli­gious as that they have found a back way to Heaven, which men never knew of; well, let her trot thither as fast as she can, I meane to set both her and her Clark be­sides the Cushion, least she should bring as troublesome a Clark to the Church, as she her selfe is a cumbersome huswife in her House.

And seeing I had framed my case upon such a con­fused Chaos of non-conformities, I thought Master Plurality, the ingrossing Beneficer, should be one of the actors in this comudy; he is a person compounded out of many particularities into a qualification dispen­sation, and non-residence be the only liberall sciences in his study. Ever when he talkes of the Law he exagainst clames against the statute of 21 H 8.21 H 8. which opposeth pluralities unless sometims he casts outsome fo his fome prohibitions, which be Fulmina Jovis or rather Fulmina Regis to repress the greedy appetites of such of the cove­ting prelacy as cannot content themselves with their old duties and customes.

[Page 25] But let all this confused Chaos of non ordered persons sleep a while and dream of some metamorphosis, to change them from their seve­rall Leprosies, while I passe into the argument of the fifth point of my case, and that is, whether the University of Cambridge have title to the Church,K. J [...] to present hac vice, by the Statute of 3. Ia. R. For if the Law prove so, then it will make well for their Clark Sir Ignoramus (according to the old Proverb) The more foole the better lucke. But I am of opinion that the University hath no right by the said Statute; for it doth differ much from the Univer­sitie of Oxford, C [...] in my Lord Cookes Xth rep: For there in that case although the grant of the next avoydance was made before the con­viction of the Grauntor. Yet it was after such time as he became a Recusant, and also the church became voyd after the conviction.

But in my case the Church became voyd before the Grauntor be­came a Recusant, when he stood rectus in Ecclesia, and he present­ed his Clarke to the said Church when he stood cleare, before he was spott [...]d with any irreligious quality, and after presentment; the Clarke had that interest in the Church against his Patron, that the Patron could not revoke or repeale his presentation,as it appear [...] the cases of 12. Elizabeth, Dyer: fol. 292. and 18. Eliz. 348. and Fitz. Nat. br. fol. 34. and some other bookes; And al­though the Patron, after became a Recusant, and was convict, yet that doth not vitiate the presentment which he made in pura vita [...]a; For if a good Protestant grant the next avoydance to a Church, and after become a Recusant, yet that shall not avoyd the Grauntee of his Interest which was made, when the Grauntors was cleere and voyd of that Leprosie; contrary it is, if the Grauntor were a Re­cusant, when he made the grant (though he was not convicted til after) for after the conviction the forfeiture of the statute had a reach back to the Commencement of his offence, which was, when he first became a Recusant: But now I shall put you a short case, which falls between the Lord Cookes case and mine, and that is; If one become a Recusant, and then grant the next avoydance to a Church, and after is indicted for a Recusant, but the indictment ex­tends in time after the grant of the avoydance, I might make some question whether the grant of the avoydance should be avoyded; And I think it shall, and the University should have the presentment in that case: but the forfeiture of xxl. a moneth were cleer (in the case) out of the Statute; For admitting he were a Recusant foure months, and he is indicted but for the 3 last months, the King can­not [Page 26] not have xxl.Le case de Sir Chris. Hatton. for the fourth moneth not found in the indictment▪ The case of Sir Christopher Hatton might be strongly urged against me, which is, that Sir Christopher became Officer to Queen Eliza­beth in Anno xx. of her Raign, (and he owed nothing) quo anno, he purchased land, and then conveyed the land away, bona fide, when he stood cleare and unindebted; and long after, in the 32. yeare of Queen Elizabeth, he became indebted, and not before, yet that land or Lease conveyed away, stood chargable with the debt; which case I grant, because he became accomptant when he first became Of­ficer; and although the grew not indebted till after, yet the cause the Land was bound, was when he first became an Officer; but if, be­fore he became an Officer, he had passed away any Lands, or made a­way any Leases, those Lands or Leases should not be charged; And so is the Law and Reason in my case, that because the Church fell voyd when the Patron was not any Recusant, and the presentment was then also made, that is the cause the Statute never could take hold of this presentment: but if (as in the Lord Cookes said case) he had been a Recusant when the Church became first voyd, or be­fore he had presented, then (I think) it would have vested in the University, and Sir Ignoramus had had a faire pull at it.

But seeing the presentment which Monsieur Avidus made, saved the Church for the time: yet (considering the Clarke was after re­fused by the elect) whether now the University shall have the pre­sentment or not, is the question.

If the Patron Recusant could have repealed his presentment, then the question will arise, whether the same shall be trasferred over to the University by the said Statute of tertio Iacobi or not.

And as I have formerly said, so I hold still that the Patron could not repeale or call back his presentation; For it is more then a meer power that he gives to the Clarke; for it is an interest for his pre­ferment, especially being made to the party self; I grant the case of 1. E. 5. fol. [...]. [...] where one delivers money to I. S. to pay to I. D. Or where I deliver a horse to I. S. to deliver to I. D. The mo­ney in the one case, and the horse in the other, may be countermaun­ded before they be payed, or delivered over to the party, because the Bayliffe is but my servant in these cases: Bat put the case a little further, that I give a horse to I. S. to the use of I. D. or I enter into an obligation to the use of another, here, because I make the Byaliffe a party, I cannot in these cases make any countermaund of the things delivered: So, because (in the principall case in question) the Clark [Page 27] hath a kinde of interest in the Church by the presentation; In that respect th [...]refore it cannot be repealed by the Patron: Yet (on the otherside) I am of opinion, that if I have the nomination of a Clark, and I. S. the presentation of him, that I may repeale my nomination, for I. S. is (in this case) but meerly my servant to present my Clark to the Bishop: And I am of opinion also, that if the Patron Mon­sieur Avidus could have recalled his presentation, that then that power had been transferred over to the University by the said Sta­tute; In the argument of which said point, I may aptly put the case of Sir Francis Englefeild, The case of Sr Fra Englefield. in Cookes 7. Rep. where not only the condition, but also the performance of it was transferred over by Act of Parliament to the King, because the party might have taken advantage and benefit of it himselfe, and therefore the same advantage by the Statute was transferred over to the King: wherein also I take a difference between that case,F. [...]. 8. and the case in Fitz. N. Br. fol. [...] 8. I. That an assignee cannot have a writ of admeasurement of dower, where the woman dowager had more assigned to her in dower then she ought to have, but the heire the assignor might himself so, if an Infant alien and dye without heire, the Lord by escheat cannot enter, for the Law doth not transfer such titles over, yet an assignee in Law may take advantage of a condi­tion or covenant;8 Eliz Dyer 252. Quia fortior & potentior est dispositio legis quam hominis: But the case in 8. Eliz. in Dyer, fol. 252. comes fittest to this purpose, wch is that there was a donative Chauntry, and the Priest made a Lease for yeares,1 E. 6. and the Patron in taile confirmed the same, and after, the Chauntry was given to the King by 1. E. 6. of Chaun­tries; And whether the King might avoyd the said Lease, and that such title of avoyding the same be transferred over to the King by the said Statute of Chaunteries or not, was the point: And it was holden that it was; but because there was a Fine with Proclamation after shewne forth, which did barre the said entaile, It therfore was holden that the King was barred, as the issue of the Tenant in tayle, the confirmer, was: which comes directly to my purpose; For [...] Sta­tute which is the act of the whole Realm, may and will set the party, to whom the thing is assigned, in as good plight as the party was in from whom the same was taken: So in our case, when as Monsieur Avidus had presented to the Church, and that he could not repeale his presentation, but that he was bound thereby, The revocation and repeale of this presentation could never by the act of 3. the King, be transferred over to the University, because the Act of Parliament [Page 28] doth settle the same no otherwise in them then it was in the party selse, from whom it was taken▪ And so the presentment remaining in force till the death of Monsieur Avidus the Recusant, when the Elect after refused the person presented, because, as then, the Recu­sant was dead, It could not vest in the University of Cambridge, but rather in the Executors of Monsieur Avidus.

And so, for these causes, I take it, that the University have no right to the said avoydance, and that they could not con­ferre the same upon their Clark, Sir Ignoramus, if so be there had been no defect in the Clark himselfe, which after shall be found to be manifest against him, notwithstanding it were admitted that the University had a good title.

And so I will now passe over to the other points in the case which I intend to handle, as shortly as I can.

The next thing to be handled in my case is,6. Point. whether the awarding of the Iure patronatus be well or not, and what nature the same is of, and what points be enquirable thereby; and what manner of men the Jurors should be which are to be used therein.

In the handling whereof I must use practise with Law, and where one serves me not, I shall make use of the other.

A jure patronatus is properly to be awarded, where the Church is litigious between divers Patrons, and the Bishop stands in doubt which of them hath the true right, and so cannot tell (without some perill to himselfe) which of their Clarks he should receive and admit of:22 H. 6. Then he may (to save himselfe free from being a disturber) a­ward a Commission of a jure patronatus; 33 H. 6 And I doe find in our books,32 H. 6 as in 22.34 H. 6 H. 6. 44. and 33. H. 6. fol. 12. and 32. and 34. H. 6.

That a Church may be litigious
  • Before the awarding of the jure patronatus.
  • As also after the awarding therof
  • And it may be made litigious by the awarding thereof.

1. Before, as where diverse and sundry Clarks be presented by di­verse and severall Patrons (as it is in my case) there the Church is litigious.

2. So is it, if two Commissions be awarded at the suite of two severall Patrons, and in the one it is found for the one party, and in the other for the other party, here the Church resteth litigi­ous by this uncertaine verdict, and by these severall presentments.

3. Also, if in a jure patronatus, it be found for one, and before the [Page 29] Bishop be requested by the Clark for whom it is found to admit him, another doth present, here the Church is litigious after the jure patronatus awarded.

And I collect by the book of 21. H. 6. 44. That if I. S. pre­sent his Clarke to the Bishop, that if the Bishop doubt of his title, he may award a Commission of jure patronatus, notwith­standing that, not any other Patron doth present; And this I collect by the said books, for that it is there said, That if two Patrons present severally, the Bishop shall award two Commis­sions of jure patronatus, that is, one for either party; And it is said in the said bookes, that the Bishop is bound to admit the Clark of him, for whom it is found; If the Clark so require him, which he must doe or otherwise the Bishop is not bound to ad­mit him, but may suffer the laps to incurre and take advantage of it: But howsoever, I hold it plainely, the Church in my case was litigious, and a jure patronatus was to be awarded: Now then to declare the nature of a jure patronatus, and the points of it, come justly into our consideration. It is therefore to be understood that a jure patronatus, is a Commission awarded by the Bishop, and under his seale directed to some expert in the ci­vill Law to summon a Jury, to enquire of these five points.

The points enquiorable in a jure pa­tronatus be
  • 1. Si Ecclesiam vacat & quomodo vacavit.
  • 2. Quis Patronus ultime presentavit.
  • 3. Quis est verus & indubitatus Patronus.
  • 4. Quis nunc debet presentare ad Ecclesiam nunc vacantem.
  • 5. De idonitate personarum presentat.

And the Jurors which are to be sworn upon this, are the one halfe of them Clergy men, Ministers: and the other halfe be Lay men: And a Minister must be the Foreman: And so they are to be sworn alternatim, One Minister, and then a Lay-man, and [...]o till twelve or above be sworn on the Jury, for (being but an enquest of Office) above twelve may be of the Jury. I have seen sixteene of the Jury, viz. eight Clarkes, and eight Lay­men; But, as they were divided in their habit and profession, so they were divided in their opinions for their verdict, Clerici contra La [...]cos, & Laici contra [...]leric [...]s: I doe find in this case that the verdict which findes the speciall matter is su­perius [Page 30] patronatus, which is effectuall in that point, but whether this speciall matter leave it so at large, [...]as that the Church remaine litigious still or no, is a question of some moment: It is cleere by 21.21 H. 6▪ H. 6. That if two commissions be awar­ded, and the one findes for the one party, and the other for the other party, here the Church remaines litigious still, so that the Bishop may wel refuse them both: but before the jure patro­natus awarded, if it had bin his chance to have taken the wrong clark, and have refused the other which had right the Bishop had then been a disturber, quod nota pro different. But here is a speciall verdict which in judgment of the Law, is found for him that hath right; Then, whether the Bishop (at his perill) ought to take notice of the Law in this case, I hold it very disputable: But yet, because he is Judge in that case, I doe think it is at his perill to know the Law, and to present a right person upon the penalty of being a disturber: And I have observed it in all en­quiries of office, a verdict at large might be given by the Jury super veritatem facti, as in a Mandamus, & Diem clausit extre­mum, and so in this case; For, here be no issues joyned as in o­other Tryalls be, for there the verdict must be according to the point of the issue; but in commissions awarded ex officio, the enquiry may be, and ought to be, as large and speciall as the commission is.

But whether the particular finding of the disabilities of the Clarkes by the Jury, be within the said five points of the com­mission, is now to be handled; And therefore first concerning the clark of Monsieur Avidus, where the Jury findes he had a former Benefice, whether that be a sufficient cause to disable the Clark,14 H. 7 or not, I find by 14 H. 7. fol. 28. that it is no sufficient cause for the Bishop to refuse the clark because he had a former Benefice,Hollands case. Co. 4. 10. E. 3. yet it appeares in Hollands case, and in 10. E. 3. 1. Parnings opinion, that by the acceptance of a second Benefice the Clark may be deprived of both by the spirituall Law: And then in Sp [...]cots case in Seigniour Cookes 5.Sp [...]cots case. rep. fol. 58. It was resolved, that in all cases which be sufficient causes to deprive a clark, they be sufficient for, the Bishop to refuse the clark; So that ex consequenti, It followes, that if it be a sufficient cause of deprivation, because the clark had a former Benefice, then by [Page 31] Specots case, it a good cause of refusall: And this is within the 5th Article de idonitate personarum, inquiorable by the said com­mission: But for my own opinion, if that Monsieur Avidus had right to the presentment, I should have held the having of a former Benefice, to be a sufficient cause to refuse his clark, be­cause (at the least) the clark is deprivable for it, for the last Be­nefice, if not for the first also and even as one which hath a wife and taketh a second,Fitzh: N. b. fol. 34. l. he is by the Law to be divorced from them. I doe not in any sort beare with pluralities, but because it is a­gainst the Law civill; I therefore would gladly be resolved by some honest, single-beneficed Divine, whether it be not in some sort against the Law of God, and then I should more resolutely have delivered my opinion against him.

But to passe this matter over, I must now enter into the cau­ses, which be, and be not, in Law sufficient to refuse a clark pre­sented.

If a clark be criminosus, then he may be refused, as if he be prejured;38. E. 3. 3. as it appeares in 38. E. 3. 3. although he were not convict of the offence; quod dubito, because in that case, he con­fessed himselfe to be perjured, before the Bishop upon his exami­nation; which was in effect a conviction, being in a cause Eccle­siasticall, wherein the Bishop was Judge.

Occasion of a man is a cause to refuse a clark, for that is cri­men by the same booke,Hollands case. by Hollands case, in the fourth Rep. of Seigniour Cooke.

Bastardy, Villeinage and Nonage, be causes to refuse a clark, and herewithall agreeth▪ 5. H. 7. 19. 5. H. 7.Kebl [...], in Specots case aforesaid.

If the presented be a Schhismatick, it is a sufficient cause to re­fuse the clark; And I have observed that the difference between a Schismatick, and an Heretick, is this, that a Schismatick differs from us in manner, the Heretick in matter of Religion.

To refuse an Heretick or a Papisticall clark in my opinion be sufficient causes; For, for these offences the clark is depri­vable.

So is nonability a sufficient cause,5. R. 2. and to be illiterate by 5. R. 2. and Specots case: For the Statute of Articuli Cleri▪ cap. 13. is, que idonitatem presentati, ad beneficium pertinet ad Iudicem [Page 32] Ecclesiasticum ut propter defectum scientie & aliarum causa­rum rationabilium. So that Sir Ignoramus is disabled by Act of Parliament, and he being found by a Jury of clarks to be egre­gie illiteratus, I shall so hold him still till he shall improve his Learning better: [...] case 114. In little Broke fol. 114. I find a case, that where a man is attaint of Heresie, or that he is a Jew or Turke, he cannot have his clergie, wherein I doe conclude, that these be sufficient causes to refuse a clark: But I doe not mean to in­clude Sir Ignoramus in that case, to make it questionable whe­ther he could have his clergy, because (as I have heard) the grand Inquest already at Newgate, did in favorem inscientie sue, grant him the benefit of his name, and indorsed upon the indictment Ignoramus, and so was discharged.

But,9 Eliz. to proceed, in 9. Eliz. in Dyer, a Bishop refused a clark, for that he was a haunter of Tavernes, and unlawfull games: and was taken for a disturber; yet I shall never commend that Patron that shall make choice of a drunken clark.

I hold it a sufficient cause to refuse a clark, which hath com­mitted Simony,8 Acts. because the Apostles Peter and Paul pronoun­ced sentence, and in the 8th of Acts against that offence, and the offender therein. So that my opinion concerning B. and Sir Ig­noramus two of the conformed clarks doth appeare.

But now the matter of greater difficulty is, whether the of­fence in the woman Patronesse, because she was a Schismaticke were a good cause to refuse her clark or not For although she was to be censured an ill member of the church, yet if her clark were a competent person as he was (for ought that appeareth to the contrary) in my case, I then doe think, that the Bishop could in no sort justly refuse him: But I am of opinion, that in some cases the offence of the Patron shall be a cause sufficient to refuse his clark,15 H. 7. as in 15. H. 7. where the Bishop refused the clark, because the Patron was excommunicate, and had so re­mained forty dayes: For there (by the Law) no man under paine of Excommunication could communicate with him: But I am of opinion that in cases where the Patron is disabled in the point of Patronage,3 H. 5. 3. that there his clarke may be refused; As, if he be outlawed,14 H. 6. 56 for then the King ought to have the Present­ment. So where three joyntenants be, and they vary in present­ment, [Page 33] here the parties have not presented according to their in­terest, and therefore the Bishop may refuse their clarkes. So (I take it) if I. S. present, and it appeare to the Bishop that he have no right to the presentment; The Bishop may refuse his clark; And because this kind of Learning comes oft in pra­ctice, and yet is difficult; I shall therefore set down two or three cases to instruct a Bishop now and then how to get a laps by a straine of wit; For I am of opinion (at this time) that if the Presentor have no right, the Bishop may refuse his Clarke, and in a quare impedit he may well excuse himselfe, and may (in some sort) plead in chiefe to the right of the patronage: And this opinion I doe both gather and maintaine by the cases ensuing, and that is by 5. H. 7. fol. 34. where in a quare impe­dit, brought against the Bishop,5. H. 7. the plaintiffe declared that he was seized of the advowson in Fee, and presented on E. who was received, instituted and inducted: and that after, the church became voyd by the death of E. and remained voyd by the space of 6. moneths, and the defendant collated C. who was in­ducted thereunto, and after, the said church became voyd by the death of C. And that therefore now it appertaines to him to present, and the defendant did disturb him: The defendant pleaded, that one I. S. did present the said C. unto him as or­dinary, and he did admit him, and he was instituted and indu­cted into the church at the presentment of the same, I. S. and traversed, Absque hoc, that C. was collated by him. And this plea by the better opinion of the booke was good, and yet it doth entitle I. S. by the presentment which was by distur­bance, and did disable the Plaintiffe thereby: And thus the plaintiffe is disabled by the plea of the Bishop in point of right.

And,22. H. 6. In 22. H. 6 fol. 28. Sir Iohn Denhams case, which is, that one brought a Quare imp. against the Bishop and one R. Chanon of St. Needs and declared that W. his Father was seised in fee of the Mannor of Hatland, to the which the ad­vowson of the Abbathy of St. Needs was appendent, and that the Abby▪ voyded by the death of A. and his Father presented B. who was admitted, instituted and inducted at his presenta­tion, and that his Father dyed, whereby the mannour and ad­vowson [Page 34] descended to the Plaintiffe as next Heire, and that the Abbey became void by the death of B. and so it belongs to him to present, and he presented his covenable Clark to the Bishop defendent, and he refused him.

The Bishop pleaded that the Abby of Saint Needs, time out of memory, had been a House of Abbot Prior and covent, and that the Prior and covent have used, when the Abbey be­came void, to elect one to be Abbot, and to present him to the Bishop, and if he found him a covenable clark▪ then he recei­ved him, and caused him to be installed: And he said, that the Abbey became void, and the Prior and Covent did elect the o­ther defendant and presented him to the Defendant the Bishop, and he found him covenable, by reason whereof, he admitted of him and caused him to be installed, and so claimeth nothing but as Ordinary: and by the direction of the Court he traversed the appendancy, which is an excellent case for my purpose: For hereby it appeares that the Bishop pleaded an Issuable plea to the Droit of the church.

And there is another case in 13.13. H. 7. H. 7. fol the 18. where the Lord Hastings, and the Lady Mary his Wife, brought a quare Imp. against Sir Walter Hungerford, and declared how Mom­pesson and others were seized of the advowson in grosse to the use of the Plaintiffs, and they being so thereof seized, graunted the Adowson to R. who regraunted the same to them, and shewes a presentment, and that the church became void &c. now apperteineth for them to present, and they presented their Clark, And the Bishop one of the Defendants, refused to re­receive him: The patron, the Bishop, and the Incumbent, joyned in a plea, and pleaded and set forth, that Mompesson, and his o­ther co-Feoffees were, and stood seized of the Advowson to the use of Sir Walter Hungerford one of the Defendants, and of his Heires Males of his bodie, and he presented, Absque hoc, that the said Mompesson and other his Co-feoffees were seized to the use of the Plaintiffs: which Plea (no doubt) was a good Plea for the Patron, and also for the inducted incumbent, since the statute of 25.25. E. 3 E. 3. Cap. 7. And I suppose that the Ordinary hath such an interest in the Church, as that he may also plead thereunto, For, (as it appeares) the Patron and Ordinary in [Page 35] the vacancy may actually charge the church, with a perpetuall rent-charg, but not with annuity (as I take it.) And although­some have held before me, that he shall be but in case as a dissei for which can plead no plea to the tenancy,26. Ass. as 26. Assis. 49. and 35 H.35. H. 6. 6. 13. is The reason there is, because he is taken in the Law to have no interest in the tennancy: but an Ordinary sure­ly hath some interest in the Church, considering he and the Pa­tron may charg the Church in the time of Uacation, and he shall set Clark therein if a lapss come: yet I am of opinion, that if I. S. disseise I. D. of a Mannour, to the which the Advowson of L. is belonging, that if I. S. present to that Church, the Bi­shop cannot (upon penalty to be taken a disturber) refuse the Clarke of I. S. unlesse that I D. doe also present. for then he ought to receive his Clarke; and my reason is, because I. S. had right to the Advowson against all others but against the Disseisee, by reason of the possession, which is sufficient to close the hands of the Ordinary.

These cases I have put purposely to maintain the title of the Bishop, because I hold, that the refusall of the Clarke of the Feme Schismatique, is not any sufficient cause, but that she fai­led in point of right, which by these cases, is proved, that, the Ordinary might plead and justifie against her.

But, to proceed a little further in this learning, It is requisite for me to declare, how and in what manner these causes of re­fusals ought to be shewen by the Bishop, and how and before whom they shalbe tryed,Specots casc. It is plaine by Specotts case afore­said, that, for the Bishop to excuse himself in a quare imp: for refusing of a Clarke, quia fuit Schismaticus inveteratus was no sufficient cause, but he ought to have shewen in q' o & quomodo: 9. Eliz Dyer. and so by 9. of Eliz. in Dyer aforesaid, that the Clarke was Criminosus, without shewing certainly, in what, was insufficiently pleaded, and the reason is, because the Patron may take issue thereupon: and if it be in cases of Schisme, Here­sy, or other offences Ecclesiasticall, the issue shall be tryed by the ArchBishop of the Province, And this I have observed out of 39.39 E. 3. E 3. 1. and 40. E. 3. 20. Where, a clark was refused by reason of nonability and tryed by the garden of the spirituali­ties Sede vacante Archiep: 40. E 3 [...] 20. But if the Clarke had been dead it [Page 36] should have been tryed per patriam: 5. [...]. 2. and by 5. [...]. 2. A clark was deprived by sentence given at Rome, because he was a mi­screant, and that was tryed per patriam, because the Iudges could not write to any to try that issue: So, Outlawry, death of a man, and perjury, in a temporall cause shall be tryed by Ju­ry, but perjury in an Ecclesiasticall cause shall be tryed by the Bishop,38. E. 3 ut constat, per 38. E. 3. 3.

Let these cases suffice for this matter, because I would not be more tedious then my case doth afford me occasion.

Yet because, some of the Gentlemen of the Bench, and espe­cially those of Lincolnes-Inne, have argued much against the Bishops Title, because he refused B. the Clark of Monsieur A­vidus, by reason he had a former benefice, & Sir Ignoramus be­cause he was illiterate; and gave no notice thereof to the Pa­trons which presented them: But I shall give them a full an­swer thereunto; which is, First by the book of That if the Bishop refuse a Clark for nonability of literature, if the Pa­tron be a spirituall man which presented him, the Bishop need not to give him notice thereof: contrary; if the Patron there­of be a Layman: And the Vniversity is a learned Corporation which can of themselves, as well take notice of the learning of the Clark, as of his person, which I take to be a sufficient an­swer to Sir Ignoramus and his Patron: And the next reason shall extend to all the Clarks and Patrons also in my case (ex­cept the King and his Clark) and that I ground upon the said books of 22:22. H. 6. H. 6. 8. 34. H. 6. which is, that where divers persons do present severally their Clarks to the Bishop,34. H. 6. and he awar­deth a Iure patronatus which is not determined, but by reason thereof, the 6. moneths passe, (as in our case,) yet in a quare impedit, it shall be a sufficient plea, for him, to plead that the Church was litigious by reason of the severall clarks presented and so remained untill the 6 moneths were passed, whereby he collated his clark: And this shall be a good plea without set­ting forth the proceedings in the Iure patronatus, and the spesciall verdict thereupon given.

So that I hope those Gentlemen which have argued for Monsieur plurality, and for Sir Ignoramus, will rest satisfied with this answer, till I come neere the end of my case, and then [Page 37] I hope I shall more fully resolve them, that the Law is against their Clyents, howsoever the exceptions were wittily and per­tinently taken; and so, now I intend to proceed to the hand­ling of the 8 point of my case.

The eight point of my case,8 Point. is, whether the contract which E. made with Sir Symon Magus▪ to further his institution be such a simony as shall cause E. if he had come in upon a good title to forfeit the Church as also to cause the said Sir Symon to loose his, presentation hac vice, and to forfeit the same to the crowne or not,31. Eliz. which is grounded upon the Statute of 31. Eliz.

But this Statute seemeth plainly to distinguish betwixt Simo­ny given; or contracted for, for and concerning the presentment and where it is concerning the Institution and Induction, for where the Patron contracteth to have or take for the presen­tation, he loseth his presentment, and it is forfeit to the crowne: But if the Clark contract, or give any thing for to further his Institution, he doth only loose the preferment of that Church, and the Patron is to have the presentation, and doth not forfeit it for the abuse of his Clark: I grant, that Si­monicall contracts are detestable, before God and man, yet be­ing so penall an offence; It is fit it should be well proved, ere the offendor be punished: And I cannot perceive but that the presentment stood cleare without any touch of Simony.

And although Sir Symon was particeps criminis, yet the crimen was only in the contracting for, and concerning the In­stitution and not concerning the presentation, and if it were agreed colourably before the presentation that Sir Symon should have nor take any thing for the presentation, but only to further the Institution, then I should take this concerning a Simony against Sir Symon upon this statute, for many of the Gentlemen which argued the case, doubted, Sir Symon intended to defraud the Statute, fearing (because he was a branch sprung from so bad a Tree) he could bring forth no better fruit.

Therefore I will defend his act no further, but judging upon matters no otherwise then I see, I cannot find any just cause, in Law to entitle the King to the presentation, nor to excuse Sir Symon of his unlawfull contract con­cerning [Page 38] the institution, whereby the Clark did forfeit his preferment to the benefice; If so be that the party, with whom the Clark did contract, had had power in the Institu­tion as Sir Symon had not, yet to further it with the Arch­deacon may be Simony.

But now all this serveth well for the Eslie, 9. Point. to maintaine his title by the lapse: for seeing the Advowson passed from the Grauntor, by his graunt, and then the Vniversity could not have it by his recusancy, nor the woman, because if it had not passed, yet it was setled in the Husband, and if it were well transferred away by him, then it vested in the Grauntee, and that the multitude of presentments made the Church litigious, even against him that had the very right; and that there was no such simony in the case as might forfeit the presentment to the King, then were the Bishops title, by lapse the best; but yet be­cause I intend to bid them all to one selfe banquet, I meane they shall all tast of the like cheere; And therefore I plainely doe hold, the Eslie, which is the Bishop Elect, to have no right nor title to collate by lapse; and the reason is, because he is not sacred, and so wants that perfection which a Bishop ought to have, that is, to collate to a Benefice.

And in the handling of this point, I must ground my argument upon the statute of 25. H. 8. cap 20. Whereby I doe gather that five things are requisite to the perfection of a Bi­shop.

1. The first is a Conge de Eslier, directed from the King to the Deane and Chapter by Letters patents, giving them leave there­by, to proceed to the Election of a Bishop.

2ly, The Election of the deane and chapter, which is pro for­ma tantum, for they are directed, whom they must choose.

3ly Then The certifying of their Election, and the mandate di­rected to the Arch-Bishop and two other Bishops, to pro­ceed to consecration.

4ly The consecration, by the which he received the pall, Be­nediction, and Church ceremonies, which enabled him in rebus spirituabitus, and made him capable thereof.

5ly Instaltation and inthronization, by the which he was in­tituled [Page 39] to the temporalties of his Bishoprick, and thereby was enabled to sue the same out of the Kings hands; by the which it appeareth, that, till consecration, he is not capable of the spiritualities, and then, Ex consequenti, it followes, that all the said patrons were mistaken, to present their clarks to the wrong Ordinary; and the Bishop Elect was somewhat too hasty to take upon him power in those cases, to play the part of a perfect Ordinary before he was a consecrated Bishop. And for the case put in Fitzh. F. N. B. 2. Nat. Br. Fol. 2. E. which is, That if in temps of vacation, and after such time as there is a Bishop elect, a man have cause to sue a writ of right, he may have it directed to the bailiffs of the elect Bishop; which I doe not think to be law, under favour of that Book, because, till he be installed, he hath no possession of his temporalties, nor then neither till he have sued the same out of the Kings hands, as by common experience is manifest. And the suing of a writ of right concernes his temporall estate, and it appeares in Fitzh. Nat. Br. Fol. 169 that till a Bishop be sacred he cannot have a writ,F. N. B. 169. De restitutione temporalium. And therefore before then I suppose he hath not any power in his temporalities, nor in the spiritualities till his consecration be finished. And by 21 E.21. E. 3. 3. 39. and 40. That from the consecration the Bishop shall have his temporalities and not before, and from thence he shal in writs and commissions be named Bishop; and before he shal only be named the Elect Bishop, Notwithstanding, In

case in Co. 8. Trollopps case 69. it is said, that a Bishop Elect, before he be sacred, may certify an excom­munication; which may be law, because the certification is on­ly a ministeriall act; but I suppose he cannot pronounce sen­tance of excommunication. which is a juditiall act: For there­in it is requisite, he should be a Bishop sacred though not in­thorized.

So that now that I have destroyed the title of Monsieur A­vidus because I hold the advowson passed away to the graun­tee Sir Symon Magus; and hereby also the pretended title of the University falls to the ground, because the Graunt was made before the Grauntor became a Recusant, when he [Page 40] stood Rectus in Ecclesia, and the title of the Feme was not sufficient to vest this avoydance in her, because it fell in the life time of her husband and so was lawfully passed away to the Grauntee, and the title of the King failes in point of Si­mony, and that Sir Symon presented to a wrong person, be­cause the Bishop was not sacred, and if it were made to a right Bishop, yet the church was litigious and so remained 6 moneths and that the lapse could not apperteine to the Bishop elect, for the causes and reasons aforesaid.

Therefore, it appeares, that not any of the persons in the case have right to the said presentment:

Then,10 point. Now for the conclusion of my last point; It comes most fitly to be shewen, what person hath the best right there­unto.

And that (I hold) is the garden of the spiritualities, which most commonly is the Dean and Chapter, during the vacancy of the Bishoprick, because the Bishop is to present by Lapss, ratione Spiritualium.

But, If a Bishop have an Advowson belonging to a Mannour, or to his temporalities, which voydeth during the vacancy, there the King shall have the presentation, for that comes to him, ratione temporalium, as it appeareth in Fitzh Nat. Br. fol. 34. K. F. N. B. 34. 44. E. 3. 3. 50. E. 3. 25. which be in the Kings hands. But in 31 H. 44. E. 3. 3. fol. 16, during the vacancy of a Bishop; the garden of the spi­ritualities shall have the spiritualities,50. E. 3. 25 and he shall have the lapse to whom the presentment ought to be made, [...] H. 6. 10 which is, The garden of the spiritualties.

And so I do conclude against all the said parties, and am of opinion that the garden of the spiritualities ought to have the presentment of the Church, hac vice, by the lapse.

Finis, Fustis, Funis,
Sir JGNORAMVS.

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